DRAFT
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IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
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1
August
6,
2003
For
the
reasons
set
out
in
the
preamble,
title
40
chapter
I
of
the
code
of
Federal
Regulations
is
amended
as
follows:

1.
Subchapter
J
is
amended
by
amending
Part
312
to
read
as
follows:

Part
312
 
Standards
for
Conducting
All
Appropriate
Inquiry
Subpart
A
 
Introduction
Sec.
312.1
Purpose,
applicability,
and
scope.

Subpart
B
 
Definitions
Sec.
312.10
Definitions
312.11
References
Subpart
C
 
Standards
and
Practices
Sec.
312.20
Results
of
an
inquiry
by
an
environmental
professional.
312.21
Interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
Authority:
Section
101(
35)(
B)
of
CERCLA,
as
amended,
42
U.
S.
C.
9601(
35)(
B).

Subpart
A
 
Introduction
§
312.1
Purpose,
applicability,
and
scope.
(
a)
Purpose.
The
purpose
of
this
section
is
to
provide
standards
and
procedures
for
"
all
appropriate
inquiry"
for
the
purposes
of
CERCLA
§
101(
35)(
B).

(
b)
Applicability.
The
requirements
of
this
part
are
applicable
to:
(
1)
potential
innocent
landowners
conducting
all
appropriate
inquiry
under
§
101(
35)(
B)
of
CERCLA;
(
2)
bona
fide
prospective
purchasers
defined
under
§
101(
40)
of
CERCLA;
(
3)
contiguous
property
owners
under
§
107(
q)
of
CERCLA;
and
(
4)
persons
conducting
site
characterization
and
assessments
with
the
use
of
a
grant
awarded
under
CERCLA
§
104(
k)(
2)(
B).
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OR
FINAL
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(
c)
Scope.
(
1)
Persons
identified
in
§
312.1(
b)(
1)­(
3)
must
conduct
investigations
required
in
this
part,
including
an
inquiry
by
an
environmental
professional,
as
required
under
§
312.21,
and
the
additional
inquiries
defined
in
§
312.22,
to
identify
releases
or
threatened
releases,
as
defined
in
CERCLA
§
101(
22),
of
hazardous
substances,
as
defined
in
CERCLA
§
101(
14).
(
2)
Persons
identified
in
§
312.1(
b)(
4)
must
conduct
investigations
required
in
this
part,
including
an
inquiry
by
an
environmental
professional,
as
required
under
§
312.21,
and
the
additional
inquiries
defined
in
§
312.22,
to
identify
releases
and
threatened
releases,
as
defined
in
CERCLA
§
101(
22)
of:
(
i)
hazardous
substances,
as
defined
in
CERCLA
§
101(
14);
(
ii)
pollutants
and
contaminants,
as
defined
in
CERCLA
§
101(
33);
(
iii)
petroleum
or
petroleum
products
excluded
from
the
definition
of
"
hazardous
substance"
as
defined
in
CERCLA
§
101(
14);
and
(
iv)
controlled
substances,
as
defined
in
Section
802
of
Title
21
of
U.
S.
C.

Subpart
B
­
Definitions
§
312.10
 
Definitions
(
a)
Terms
used
in
this
part
and
not
defined
below,
but
defined
in
either
in
CERCLA
or
in
40
CFR
Part
300
(
the
National
Oil
and
Hazardous
Substances
Pollution
Contingency
Plan)
shall
have
the
definitions
provided
in
CERCLA
or
40
CFR
Part
300.
(
b)
When
used
in
this
part,
the
following
terms
have
the
meanings
provided
below:

Environmental
Professional
means
a
person
who
possesses
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgement
to
develop
opinions
and
conclusions
regarding
the
presence
of
a
release
or
threatened
release
(
per
§
312.1(
c))
to
the
surface
or
subsurface
of
a
property.
In
addition,
the
person
shall:
(
a)
hold
a
current
Professional
Engineer's
or
Professional
Geologist's
license
or
registration
from
a
State,
Tribe,
or
U.
S.
Territory
(
or
the
Commonwealth
of
Puerto
Rico);
or
(
b)
be
licensed
or
certified
by
a
State,
Tribe,
or
U.
S.
Territory
(
or
the
Commonwealth
of
Puerto
Rico)
to
perform
environmental
inquiries
as
defined
in
§
312.21;
or
(
c)
have
a
Bachelors
of
Science,
Bachelors
of
Arts,
or
higher
degree
in
relevant
disciplines
of
science,
engineering
or
geology
and
the
equivalent
of
five
(
5)
years
of
full­
time
experience
with
increasing
responsibilities
after
obtaining
the
Bachelors
degree
that
includes
the
performance,
review,
and
oversight
of
environmental
site
assessments
and
subsurface
environmental
investigations
to
characterize
site
conditions
and
determine
the
likelihood
of
a
release
or
threatened
release
at
the
property.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
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3
§
312.11
 
References
(
a)
When
used
in
part
312
of
this
chapter,
the
following
publications
are
incorporated
by
reference:

Subpart
C
 
Standards
and
Practices
§
312.20
All
Appropriate
Inquiries
(
a)
"
All
appropriate
inquiries"
as
required
under
CERCLA
101(
35)(
b)
must
include:
(
1)
An
inquiry
by
an
environmental
professional
(
as
defined
in
§
312.10),
as
provided
in
§
312.21;
and
(
2)
Inquiries
conducted
by
persons
identified
under
§
312.1(
b),
and
as
required
in
§
312.22.

§
312.21
Results
of
inquiry
by
an
environmental
professional
(
a)
Persons
identified
under
§
312.1(
b)
must
undertake
an
inquiry,
as
defined
in
§
312.21(
b)
below,
by
an
environmental
professional,
or
conducted
under
the
direct
supervision
and
responsible
charge
of
an
environmental
professional,
as
defined
in
§
312.10.
(
b)
The
inquiry
required
to
be
conducted
by,
or
under
the
direct
supervision
and
responsible
charge
of,
an
environmental
professional
must
include
the
requirements
set
forth
in
§
§
312.23
(
interviews
with
past
and
present
owners...),
312.24
(
reviews
of
historical
sources...),
312.26
(
reviews
of
government
records),
312.27
(
visual
inspections),
312.30
(
commonly
known
or
reasonably
attainable
information),
and
312.31
(
degree
of
obviousness
of
the
presence...
and
the
ability
to
detect
the
contamination...).
In
addition,
the
inquiry
should
take
into
account
information
provided
to
the
environmental
professional
as
a
result
of
the
additional
inquiries
conducted
by
persons
identified
in
§
312.1(
b)
and
in
accordance
with
the
requirements
of
§
312.22.
(
c)
The
results
of
the
inquiry
into
the
presence
of
a
release
or
threatened
release
as
defined
in
§
312.1(
c)
should
be
certified
as
complete
and
inclusive
of
all
reasonably
ascertainable
information
about
the
property
by
both
the
environmental
professional
and
the
persons
to
which
this
part
is
applicable
per
§
312.1(
b).
(
d)
The
qualifications
of
the
environmental
professional
that
conducted
or
oversaw
the
inquiry
should
be
included
with
the
inquiry
results.

§
312.22
Additional
Inquiries
(
a)
Persons
identified
under
§
312.1(
b)
must
conduct,
as
part
of
"
all
appropriate
inquiries"
the
following
activities.
The
results
of
the
activities
listed
below
must
be
provided
to
the
environmental
professional
responsible
for
conducting
the
activities
listed
in
§
312.21.
(
1)
searches
for
environmental
cleanup
liens,
as
required
in
§
312.25;
DRAFT
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IS
NOT
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PROPOSED
OR
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REGULATION
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(
2)
specialized
knowledge
or
experience
on
the
part
of
the
defendant,
as
required
in
§
312.28;
(
3)
the
relationship
of
the
purchase
price
to
the
[
market]
value
of
the
property,
if
the
property
was
not
contaminated,
as
provided
in
§
312.29;
and
(
4)
commonly
known
or
reasonably
ascertainable
information
about
the
property,
as
required
in
§
312.30.

§
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants
(
a)
The
goal
of
any
and
all
interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
subject
property
shall
be
to
gather
information
regarding:
(
1)
releases
or
threatened
releases,
as
provided
in
§
312.1(
c),
at
the
property;
(
2)
a
continuous
record
of
ownership
and
uses
of
the
property;
and
(
3)
a
record
of
activities,
including
remedial
and
corrective
action
activities,
that
have
been
conducted
to
address
past
or
on­
going
releases
a
the
property.
(
b)
At
a
minimum,
the
environmental
professional
must
interview
the
current
owner
or
occupant
of
the
property
that
is
the
subject
of
the
investigation
(
whomever,
in
the
opinion
of
the
environmental
professional
is
best
able
to
provide
the
information
outlined
above
in
§
312.23(
a)).
(
c)
In
the
case
of
inquiries
conducted
at
abandoned
properties,
including
properties
with
an
unknown
owner,
properties
where
there
is
evidence
of
potential
unauthorized
uses
of
the
property,
or
properties
where
there
is
evidence
of
uncontrolled
access
to
the
property,
the
environmental
professional
must
interview
at
least
two
(
2)
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
uses
of
and
releases
at
such
abandoned
properties
for
the
purpose
of
gathering
information
regarding
releases
or
threatened
releases,
as
defined
in
§
312.1(
c),
at
the
property
that
is
the
subject
of
the
inquiry.
(
d)
In
addition,
to
the
extent
practicable,
and
to
determine
the
potential
for
a
release
or
threatened
release
at
the
subject
property
or
to
achieve
the
goals
listed
above
in
§
312.23(
a),
it
may
be
necessary
to
interview
a
reasonable
number
of:
(
1)
current
and
past
key
facility
managers,
(
2)
past
property
owners
or
operators,
and
(
3)
employees
of
current
and
past
occupants
of
the
property.
(
4)
non­
residential
past
owners
for
as
far
back
in
the
history
of
the
property
as
can
be
shown
that
the
property
contained
structures
or
from
the
time
the
property
was
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes.
(
5)
current
owners
or
occupants
of
neighboring
properties
or
properties
adjacent
to
the
property
that
is
the
subject
of
the
inquiry.
(
e)
In
cases
where
the
environmental
professional
is
unable
to
interview
a
sufficient
number
of
past
and
present
owners,
operators,
and
occupants
of
the
subject
property,
or
in
the
case
of
§
312.23(
d),
owners
and
occupants
of
nearby
properties
to
achieve
the
goals
listed
in
§
312.23(
a),
the
environmental
professional
must:
(
1)
document
efforts
undertaken
to
attempt
such
interviews;
and
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(
2)
to
the
extent
practicable,
review
alternative
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
and
document
steps
taken
to
obtain
such
information.

§
312.24
Reviews
of
historical
sources
of
information
(
a)
To
the
extent
practicable,
historical
documents
and
records
must
be
reviewed
to
determine
previous
uses
and
occupancies
of
the
property
that
is
the
subject
of
the
inquiry
and
identify
past
and
on­
going
activities
that
could
contribute
to
or
result
in
a
release
or
threatened
release,
as
defined
in
§
312.1(
c),
at
the
property.
The
inquiry
must
cover
a
period
of
time
as
far
back
in
the
history
of
the
property
as
can
be
shown
that
the
property
contained
structures
or
from
the
time
the
property
was
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes.
The
inquiry
should
include
reviews
of
historical
sources
and
documents
that
may
indicate
prior
uses
of
the
subject
property
and
site
conditions.
(
b)
Two
or
more
historical
documents
or
sources
of
information
such
as
chain
of
title
documents,
aerial
photographs,
fire
insurance
maps,
building
department
records,
and
land
use
records
must
be
reviewed
with
the
goal
of
obtaining
a
comprehensive
understanding
of
the
past
uses
of
the
property
and
how
such
uses
may
have
resulted
in
a
release
or
threatened
release
as
defined
in
312.1(
c).
The
inquiry
must
cover
a
period
of
time
as
far
back
in
the
history
of
the
property
as
can
be
shown
that
the
property
contained
structures
or
from
the
time
the
property
was
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes.
(
c)
In
cases
where
a
search
for
historical
documents
or
sources
of
information
does
not
result
in
a
comprehensive
record
of
uses
and
activities
at
a
property
for
as
far
back
in
the
history
of
the
property
as
can
be
shown
that
the
property
contained
structures
or
from
the
time
the
property
was
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes
the
environmental
professional
must:
(
1)
document
efforts
undertaken
to
attempt
to
obtain
the
necessary
historical
documentation;
and
(
2)
to
the
extent
practicable,
review
alternative
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
(
e.
g.,
contact
appropriate
state
and
local
officials
and
request
information
on
land
use
and
activities
conducted
at
the
site)
and
document
steps
taken
to
obtain
such
information.

§
312.25
Searches
for
recorded
environmental
cleanup
liens
(
a)
Persons
to
whom
this
part
is
applicable
per
§
312.22
must
determine
the
existence
of
recorded
environmental
cleanup
liens
against
the
subject
property
that
are
filed
under
Federal,
Tribal,
State,
or
local
law.
(
b)
All
information
collected
regarding
the
existence
of
environmental
cleanup
liens
associated
with
the
subject
property
must
be
provided
to
the
environmental
professional.

§
312.26
Reviews
of
Federal,
State,
and
local
government
records
(
a)
Publicly
available
and
reasonably
obtainable
Federal,
Tribal,
State,
and
local
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
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government
records
for
the
property
must
be
reviewed
by
the
environmental
professional
for
the
purpose
of
identifying
activities
conducted
at
or
within
one
mile
of
the
boundary
of
the
property
that
have
or
had
a
current,
past,
or
potential
release
or
threatened
release
of
a
hazardous
substance.
The
search
distance
may
be
changed
based
upon
information
available
to,
or
based
upon
the
professional
judgement
of,
the
environmental
professional.
Factors
the
environmental
professional
may
consider
in
determining
the
appropriate
search
distance
include:
(
1)
type
of
release
(
2)
proximity
to
the
subject
property
(
3)
geologic
setting
(
4)
geomorphology
(
5)
subsurface
geological
structural
features
(
6)
hydraulic
conductivity
(
7)
rock
fracture
orientation
(
8)
presence
and
designated
use
of
groundwater
(
9)
groundwater
flow
direction
(
10)
depth
to
groundwater
(
11)
groundwater
flow
velocity.

(
b)
The
review
of
publicly
available
and
reasonably
obtainable
Federal,
Tribal,
State,
and
local
government
records
(
including
searches
of
publicly
available
data
bases)
should
include,
as
appropriate:
(
1)
hazardous
substance
release
investigation
reports
for
the
property;
(
2)
records
of
activities
or
incidents
likely
to
cause
or
contribute
to
a
release
or
threatened
release
as
defined
in
§
312.1(
c),
including
landfill
and
other
disposal
unit
location
records
and
permits,
underground
storage
tank
records
and
permits,
hazardous
waste
handler
and
generator
records
and
permits,
Federal,
Tribal
and
state
government
listings
of
sites
identified
as
priority
cleanup
sites,
and
spill
reporting
records;
(
3)
environmental
records
that
reflect
incidents
or
activities
that
are
likely
to
caue
or
contribute
to
releases
or
threatened
releases
at
the
property;
(
4)
public
health
records;
and
(
5)
information
on
any
institutional
controls
associated
with
the
property
that
is
the
subject
of
the
inquiry.
(
c)
In
cases
where
Federal,
Tribal,
State,
and
local
government
records
of
activities
conducted
on
or
within
the
general
vicinity
of
the
property
are
not
publicly
available
and
not
reasonably
obtainable,
the
environmental
professional
must:
(
1)
document
efforts
undertaken
to
attempt
to
obtain
the
necessary
government
records;
and
(
2)
review
alternative
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
and
document
steps
taken
to
attain
such
information.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
7
§
312.27
Visual
inspections
of
the
facility
and
of
adjoining
properties
(
a)
For
the
purpose
of
determining
the
presence
of
a
release
or
threatened
release
on
the
property
per
§
312.1(
c),
the
inquiry
conducted
by
an
environmental
professional
must
include:
(
1)
a
visual
site
inspection
or
observation
of
the
property
and
all
facilities
and
improvements
on
the
property
including
a
visual
inspection
of
any
hazardous
substance
use,
storage,
treatment,
and
disposal
practices
conducted
on
the
properties;
and
(
2)
a
visual
inspection
or
observation
of
immediately
adjacent
properties,
including
a
visual
inspection
of
any
hazardous
substance
use,
storage,
treatment,
and
disposal
practices
conducted
on
the
adjacent
properties.
(
b)
Persons
conducting
site
characterization
and
assessments
with
the
use
of
a
grant
awarded
under
CERCLA
§
104(
k)(
2)(
B)
must
include
in
the
scope
of
the
visual
inspection
or
observation,
a
visual
inspection
of
any
use,
storage,
treatment,
or
disposal
of
petroleum
and
petroleum
products,
controlled
substances,
and
hazardous
pollutants
and
contaminants.
(
c)
It
is
essential
that
a
visual
on­
site
inspection
of
the
subject
property
be
conducted
as
part
of
the
inquiry.
In
the
unusual
circumstance
where
an
on­
site
visual
inspection
or
observation
of
the
subject
property
and/
or
immediately
adjacent
properties
cannot
be
performed
because
of
physical
limitations,
an
inability
to
obtain
access
to
the
property
despite
significant
efforts
to
obtain
such
access,
the
environmental
professional
must:
(
1)
visually
inspect
or
observe
the
subject
property
and
immediately
adjacent
properties
via
another
method
(
such
as
by
aircraft),
or
visually
inspect
or
observe
the
subject
property
from
the
nearest
accessible
vantage
point
(
such
as
the
property
line
or
public
road);
(
2)
document
efforts
undertaken
to
attempt
to
obtain
access
to
the
subject
property
and/
or
immediately
adjacent
properties;
(
3)
review
alternative
comparable
sources
of
information
regarding
the
potential
for
a
release
or
threatened
release
at
the
property
and
document
the
steps
taken
to
obtain
such
information.

§
312.28
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
(
a)
Persons
to
which
this
part
is
applicable
per
§
312.1(
b)
must
apply
to
the
inquiry
and
report
to
the
environmental
professional
their
own
specialized
knowledge
of
the
property
that
is
the
subject
of
the
inquiry,
the
environs
of
the
property,
the
conditions
of
adjoining
properties,
and
any
other
expertise
relevant
to
the
investigation,
for
the
purpose
of
assessing
the
presence
of
a
release
or
threatened
release
at
the
property,
as
defined
in
§
312.1(
c).
(
b)
All
appropriate
inquiries,
as
outlined
under
§
312.20,
are
not
complete
unless
the
results
of
the
inquiries
include
all
relevant
and
applicable
specialized
knowledge
and
experience
of
the
persons
responsible
for
undertaking
the
inquiry
(
as
described
in
§
312.1(
b)).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
8
§
312.29
The
relationship
of
the
purchase
price
to
the
[
market]
value
of
the
property,
if
the
property
was
not
contaminated
(
a)
Persons
to
which
this
part
is
applicable
per
§
312.1(
b)
must
evaluate
whether
the
purchase
price
of
the
property
that
is
the
subject
of
the
inquiry
reasonably
reflects
the
[
market]
value
of
the
property,
if
the
property
were
not
contaminated.
(
b)
Persons
who
conclude
that
the
purchase
price
of
the
property
that
is
the
subject
of
the
inquiry
does
not
reasonably
reflect
the
[
market]
value
of
that
property,
if
the
property
were
not
contaminated,
should
consider
whether
or
not
the
differential
in
purchase
price
and
[
market]
value
is
due
to
the
fact
that
the
property
contains
releases
or
threatened
releases
of
hazardous
substances.
(
c)
Persons
conducting
site
characterization
and
assessments
with
the
use
of
a
grant
awarded
under
CERCLA
§
104(
k)(
2)(
B)
and
who
conclude
that
the
purchase
price
of
the
property
that
is
the
subject
of
the
inquiry
does
not
reasonably
reflect
the
[
market]
value
of
that
property,
if
the
property
were
not
contaminated,
should
consider
whether
or
not
the
differential
in
purchase
price
and
[
market]
value
is
due
to
the
fact
that
the
property
contains
releases
or
threatened
releases
of
hazardous
substances,
petroleum
and
petroleum
products,
controlled
substances,
and/
or
hazardous
pollutants
and
contaminants.

§
312.30
Commonly
known
or
reasonably
ascertainable
information
about
the
property
(
a)
Persons
to
which
this
part
is
applicable
per
§
312.1(
b)
and
environmental
professionals
conducting
an
inquiry
of
a
property
shall
take
into
account
commonly
known
or
reasonably
ascertainable
information
about
the
property
throughout
the
conduct
of
the
inquiry
and
consider
such
information
when
determining
whether
or
not
there
is
a
release
or
threatened
release,
as
defined
in
§
312.1(
c),
at
the
subject
property.
(
b)
Commonly
known
information
includes
information
obtained
by
the
person
to
whom
this
part
applies
per
§
312.1(
b)
and
the
environmental
professional
about
releases
or
threatened
releases
at
the
property
subject
to
the
inquiry
that
is
incidental
to
or
in
addition
to
the
information
obtained
intentionally
or
otherwise
by
design
or
inquiry
under
this
part.

§
312.31
The
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
detect
the
contamination
by
appropriate
investigation
(
a)
Persons
to
which
this
part
is
applicable
per
§
312.1(
b)
and
environmental
professionals
conducting
an
inquiry
of
a
property
on
behalf
of
such
persons
must
consider
all
obvious
indications
of
the
presence
of
a
release
or
threatened
release
at
the
property
and
should
document
compliance
with
the
criteria
of
this
part
prior
to
purchasing
the
property.
(
b)
If,
after
completing
the
inquiries
required
under
§
§
312.23
through
312.30
above,
the
results
of
the
inquiries
indicate,
to
a
significant
degree
of
obviousness,
that
there
is
a
release
or
threatened
release,
as
defined
in
§
312.1(
c),
or
a
high
potential
of
a
release
or
threatened
release
at
the
property
that
is
the
subject
of
the
inquiry,
then
the
results
of
inquiry
should
include
the
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
9
environmental
professional's
recommendations
regarding
additional
appropriate
investigations
(
e.
g.,
sampling
and
analysis
of
soils,
groundwater,
or
air)
that
may
be
necessary
to
detect
any
releases
or
threatened
releases
at
the
property
for
the
purposes
of
undertaking
appropriate
or
reasonable
care
should
the
property
be
purchased.
