DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
1
October
10,
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).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
2
(
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
CERCLA
or
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
must:
(
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
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
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;
(
2)
Inquiries
conducted
by
persons
identified
under
§
312.1(
b),
and
as
required
in
§
312.22;
and
(
3)
Searches
for
environmental
cleanup
liens,
as
required
in
§
312.25.
(
b)
Objectives.
These
All
Appropriate
Inquiry
standards
and
practices
seek
to
identify
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
a
property.
In
performing
the
all
appropriate
inquiries,
as
defined
in
§
312.20
and
provided
in
the
standards
and
practices
set
forth
in
subpart
C
of
this
part,
the
person
identified
under
§
312.1(
b)
and
the
environmental
professional,
as
defined
in
§
312.10,
must
seek
to
identify
through
the
conduct
of
one
or
more
of
the
standards
and
practices
set
forth
in
subpart
C
the
following
types
of
information
about
the
subject
property:
(
1)
current
and
past
property
uses
and
occupancies;
(
2)
current
and
past
uses
of
hazardous
substances;
(
3)
waste
management
and
disposal
activities
that
could
cause
releases
or
threatened
releases
of
hazardous
substances;
(
4)
past
and
current
corrective
actions
and
response
activities
undertaken
to
address
past
and
on­
going
releases
of
hazardous
substances;
(
5)
land­
use
restrictions
applicable
to
the
subject
property;
and
(
6)
properties
located
adjoining
to
or
nearby
the
subject
property
that
have
environmental
conditions
that
could
result
in
a
release
or
threatened
release
of
a
hazardous
substance
to
the
subject
property.
(
c)
Performance
factors.
In
performing
each
of
the
standards
and
practices
set
forth
in
this
part
and
to
meet
the
objectives
stated
above
in
§
312.20(
b),
the
person
identified
under
§
312.1(
b)
or
the
environmental
professional
as
defined
in
§
312.10
(
as
appropriate
to
the
particular
standard
and
practice)
must
seek
to:
(
1)
gather
the
information
that
is
required
for
each
standard
and
practice
listed
in
subpart
C
of
this
part
that
is,
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
practicably
be
reviewed;
(
2)
review
the
information
gathered
in
complying
with
each
standard
and
practice
listing
in
subpart
C
of
this
part
so
as
to
form
an
opinion
as
to
its
thoroughness
and
reliability;
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
4
(
3)
assure
the
thoroughness
and
reliability
of
the
information
and
refer
to
and
use,
to
the
extent
necessary,
information
gathered
in
the
course
of
complying
with
every
other
standard
and
practice
of
subpart
C
of
this
part;
and
(
4)
to
the
extent
there
are
data
gaps
that
affect
the
ability
of
persons
conducting
the
all
appropriate
inquiry
to
identify
the
presence
of
a
release
or
threatened
release
(
such
as
in
the
historical
record
of
property
uses
or
ownership)
in
any
area
of
inquiry
under
any
standard
and
practice,
identify
such
data
gaps,
identify
the
sources
of
information
consulted
to
fill
the
data
gaps,
and
assess
potential
impacts
of
such
data
gaps
with
regard
to
the
ability
to
detect
a
release
or
threatened
release
of
hazardous
substances
on,
at,
in,
or
to
a
property.
(
d)
All
appropriate
inquiries
do
not
include
the
identification
of
de
minimus
conditions
or
releases
that
generally
do
not
result
in
material
harm
to,
or
threaten
the
safety
of,
human
health
and
the
environment
and
conditions
or
releases
that
would
not
result
in
federal,
state,
tribal,
or
local
government
enforcement
actions.
(
e)
None
of
the
requirements
of
this
part
limits
disclosure
obligations
under
any
other
federal,
state,
tribal
and
local
law,
including
requirements
under
CERCLA
§
§
101(
40)(
C)
and
107(
q)(
1)(
A)(
vii)
requiring
persons
to
provide
all
legally
required
notices
with
respect
to
the
discovery
or
release
of
any
hazardous
substances.

§
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
reviewed
and
approved
by,
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
reviewed
and
approved
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
[
accurate?]
complete
and
inclusive
of
reasonably
ascertainable
information
about
the
property
by
both
the
environmental
professional
and
the
persons
to
which
this
part
is
applicable
per
§
312.1(
b).
[
Preamble
should
address
what
is
meant
by
"
certified."]
(
d)
The
qualifications
of
the
environmental
professional
that
conducted
or
oversaw
the
inquiry
should
be
included
with
the
inquiry
results.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
5
§
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)
specialized
knowledge
or
experience
on
the
part
of
the
defendant,
as
required
in
§
312.28;
(
2)
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
(
3)
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)
Interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
subject
property
must
be
conducted,
in
conjunction
with
the
activities
conducted
under
the
other
criteria
in
this
subpart,
to
gather
information
regarding:
(
1)
releases
or
threatened
releases,
as
provided
in
§
312.1(
c),
at
the
property;
(
2)
current
and
past
ownership
and
uses
of
the
property;
and
(
3)
a
record
of
activities,
including
response
and
corrective
action
activities,
that
have
been
conducted
to
address
past
or
on­
going
releases
at
the
property.
(
b)
At
a
minimum,
the
inquiry
of
the
environmental
professional
must
include
interviewing
the
current
owner
or
occupant
of
the
property
(
or
a
representative
thereof)
that
is
the
subject
of
the
investigation
(
whomever,
in
the
opinion
of
the
environmental
professional
would
be
knowledgeable
and
able
to
provide
the
information
outlined
above
in
§
312.23(
a)).
(
c)
In
addition,
to
the
extent
practicable,
the
inquiry
of
the
environmental
professional
must
include
interviewing
one
or
more
of
the
following
persons,
as
necessary,
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)
and
§
312.20:
(
1)
current
and
past
key
facility
managers,
(
2)
past
owners
or
operators
of
the
subject
property,
(
3)
employees
of
current
and
past
occupants
of
the
subject
property,

(
5)
local
and
state
government
officials
who
may
have
knowledge
of,
or
information
related
to,
the
subject
property,
and
(
6)
others
with
knowledge
of
the
subject
property.
(
d)
In
the
case
of
inquiries
conducted
at
abandoned
properties,
such
as
properties
with
an
unknown
or
unreachable
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's
inquiry
must
include
interviewing
at
least
two
(
2)
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
6
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.
(
e)
In
cases
where
the
environmental
professional
is
unable
to
conduct
interviews,
as
described
above,
and
the
result
is
an
inability
of
the
environmental
professional's
inquiry
to
meet
the
goals
of
the
inquiry,
as
set
forth
in
§
312.23(
a)
and
§
312.20
above,
the
environmental
professional's
inquiry
must
include:
(
1)
documentation
of
efforts
undertaken
to
attempt
such
interviews;
(
2)
documentation
of
the
impact
that
the
absence
of
interview
information
may
have
on
the
accuracy
and
quality
of
the
overall
environmental
inquiry;
and
(
3)
documentation,
to
the
extent
practicable,
of
other
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
that
were
consulted
and
documentation
of
steps
taken
to
obtain
such
information.

§
312.24
Reviews
of
historical
sources
of
information
(
a)
To
the
extent
practicable
(
and
to
the
extent
necessary
information
is
not
obtained
from
other
sources
of
information
or
in
response
to
conducting
activities
required
under
other
criteria
in
this
subpart),
historical
documents
and
records
must
be
reviewed
for
the
purpose
of
determining
previous
uses
and
occupancies
of
the
property
that
is
the
subject
of
the
inquiry
and
to
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.
(
b)
Historical
documents
or
sources
of
information
such
as
chain
of
title
documents,
aerial
photographs,
fire
insurance
maps,
building
department
records,
and
land
use
records
should
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).
(
c)
The
environmental
professional
may
exercise
professional
judgement
in
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records
to
obtain
an
accurate
assessment
of
property
uses
and
an
assessment
of
the
potential
for
releases
or
threatened
releases
at
the
property.
(
d)
In
cases
where
a
search
for
historical
documents
or
sources
of
information
does
not
result
in
the
ability
of
the
environmental
professional's
inquiry
meeting
the
goals
of
the
inquiry,
as
set
forth
in
§
312.24(
a)
and
§
312.20
above,
the
inquiry
of
the
environmental
professional
must
include:
(
1)
documentation
of
efforts
undertaken
to
attempt
to
obtain
the
necessary
historical
documentation;
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
7
(
2)
documentation
of
the
impact
that
the
absence
of
historical
information
may
have
on
the
accuracy
and
quality
of
the
overall
environmental
inquiry;
and
(
3)
documentation,
to
the
extent
practicable,
of
other
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
that
were
consulted
and
documentation
of
steps
taken
to
obtain
such
information.

§
312.25
Searches
for
recorded
environmental
cleanup
liens
(
a)
All
appropriate
inquiries
must
include
a
search
for
the
existence
of
environmental
cleanup
liens
against
the
subject
property
that
are
filed
or
recorded
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,
Tribal
and
local
government
records
(
a)
Publicly
available
and
reasonably
obtainable
Federal,
Tribal,
State,
and
local
government
records
for
the
property
must
be
reviewed,
as
part
of
the
environmental
professional's
inquiry,
for
the
purpose
of
identifying
activities
conducted
at
the
boundary
of
the
property
that
have
or
had
resulted
in
a
current,
past,
or
potential
release
or
threatened
release
of
a
hazardous
substance
(
to
the
extent
that
such
necessary
information
is
not
obtained
from
other
sources
of
information
or
in
response
to
conducting
activities
required
under
other
criteria
in
this
subpart).
(
b)
The
search
distance
from
the
property
boundary
for
identifying
activities
listed
in
§
312.26(
a)
based
upon
the
professional
judgement
of
the
environmental
professional.
The
environmental
professional
may
consider
one
or
more
of
the
following
factors
in
determining
an
alternate
appropriate
search
distance:
(
1)
nature
and
extent
of
a
release,
(
2)
geologic
and
hydrogeologic
conditions
of
the
property
and
surrounding
environment,
(
3)
land
use
and
land­
use
densities,
(
4)
property
type,
(
5)
existing
and
past
uses
of
surrounding
properties
(
6)
potential
migration
pathways
(
e.
g.,
ground­
water
flow
direction,
prevalent
wind
direction),
and
(
7)
other
relevant
factors.
(
c)
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
and
to
the
extent
that
such
information
is
not
obtained
from
activities
conducted
in
response
to
other
criteria
in
this
subpart:
(
1)
hazardous
substance
release
investigation
reports
for
the
property;
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
8
(
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
cause
or
contribute
to
releases
or
threatened
releases
at
the
property;
(
4)
public
health
records;
and
(
5)
information
on
institutional
controls
associated
with
the
property
that
is
the
subject
of
the
inquiry.
(
d)
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,
and
therefore
result
in
the
environmental
professional
inability
to
meet
the
goals
of
the
inquiry,
as
set
forth
in
§
312.26
(
a)
and
(
b)
and
in
§
312.20
above,
the
inquiry
of
the
environmental
professional
must
include:
(
1)
documentation
of
efforts
undertaken
to
attempt
to
obtain
the
necessary
government
records;
(
2)
documentation
of
the
impact
that
the
absence
of
appropriate
governmental
records
may
have
on
the
accuracy
and
quality
of
the
overall
environmental
inquiry;
and
(
3)
documentation,
to
the
extent
practicable
of
the
other
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
consulted
and
documentation
of
the
steps
taken
to
attain
such
information.

§
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
of
the
environmental
professional
must
include:
(
1)
a
visual
on­
site
inspection
or
observation
of
the
property,
facilities
on
the
property,
and
improvements
on
the
property
including
a
visual
inspection
of
hazardous
substance
use,
storage,
treatment,
handling,
and
disposal
practices
conducted
on
the
properties
for
the
purpose
of
assessing
the
potential
presence
of
a
release
or
threatened
release
on
the
subject
property;
and
(
2)
at
a
minimum,
a
visual
inspection
or
observation
of
immediately
adjacent
properties,
from
the
subject
property
line
or
public
right
of
ways,
including
a
visual
inspection
or
observation
of
hazardous
substance
use,
storage,
treatment,
and
disposal
practices
conducted
on
the
adjacent
properties
for
the
purpose
of
assessing
the
potential
for
a
release
or
threatened
release
from
an
immediately
adjacent
property
that
may
impact
the
subject
property.
Observations
or
physical
limitations
to
inspection
or
observation
of
adjacent
properties
must
be
noted.
(
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
the
use,
storage,
treatment,
or
disposal
of
petroleum
and
petroleum
products,
controlled
substances,
and
hazardous
pollutants
and
contaminants.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
9
(
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,
remote
location,
or
other
inability
to
obtain
access
to
the
property
despite
good
faith
efforts
to
obtain
such
access,
the
inquiry
of
the
environmental
professional
must
include:
(
1)
visually
inspecting
or
observing
the
subject
property
and
immediately
adjacent
properties
via
another
method
(
such
as
aerial
imagery
for
large
properties),
or
visually
inspecting
or
observing
the
subject
property
from
the
nearest
accessible
vantage
point
(
such
as
the
property
line
or
public
road
for
small
properties);
(
2)
documentation
of
efforts
undertaken
to
attempt
to
conduct
a
visual
inspection;
and
(
3)
documentation
of
the
impact
that
the
inability
to
conduct
a
visual
inspection
may
have
on
the
accuracy
and
quality
of
the
overall
environmental
inquiry;
and
(
4)
documentation,
to
the
extent
practicable
of
the
other
sources
of
information
regarding
releases
or
threatened
releases
at
the
property
consulted
and
documentation
of
the
steps
taken
to
attain
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
disclose
to
the
environmental
professional,
and
the
inquiry
must
take
into
account,
their
specialized
knowledge
of
the
subject
property
the
area
surrounding
the
subject
property,
the
conditions
of
adjoining
properties,
and
any
other
experience
relevant
to
the
inquiry,
for
the
purpose
of
assessing
the
presence
of
a
release
or
threatened
release
at
the
subject
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
take
into
account
all
relevant
and
applicable
specialized
knowledge
and
experience
of
the
persons
responsible
for
undertaking
the
inquiry
(
as
described
in
§
312.1(
b)).

§
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
consider
whether
the
purchase
price
of
the
property
that
is
the
subject
of
the
inquiry
reasonably
reflects
the
fair
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
fair
market
value
of
that
property,
if
the
property
were
not
contaminated,
should
consider
whether
or
not
the
differential
in
purchase
price
and
fair
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
knows
that
the
purchase
price
of
the
property
that
is
the
subject
of
the
inquiry
does
not
reasonably
reflect
the
fair
market
value
of
that
property,
if
the
property
were
not
contaminated,
should
consider
whether
or
not
the
differential
in
purchase
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
10
price
and
fair
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
must
take
into
account
local
commonly
known
or
reasonably
ascertainable
information
about
the
property
throughout
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
by
the
environmental
professional
about
releases
or
threatened
releases
at
the
subject
property
that
is
incidental
to
or
in
addition
to
the
information
obtained
during
the
inquiry
performed
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
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
environmental
professional's
recommendations
regarding
additional
appropriate
investigations
(
e.
g.,
sampling
and
analysis
of
soils,
groundwater,
or
air)
that
may
be
necessary
to
detect
releases
or
threatened
releases
at
the
property
for
the
purposes
of
limiting
potential
human
and
environmental
exposure
to
such
releases.
