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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
All
appropriate
inquiries
312.21
Results
of
inquiry
by
an
environmental
professional
312.22
Additional
inquiries
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants
312.24
Reviews
of
historical
sources
of
information
312.25
Searches
for
recorded
environmental
cleanup
liens
312.26
Reviews
of
Federal,
State,
Tribal
and
local
government
records
312.27
Visual
inspections
of
the
facility
and
of
adjoining
properties
312.28
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
312.29
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated
312.30
Commonly
known
or
reasonably
ascertainable
information
about
the
property
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
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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)
anyone
seeking
to
qualify
for:
(
i)
the
innocent
landowner
defense
pursuant
to
§
101(
35)(
B)
of
CERCLA;
(
ii)
the
bona
fide
prospective
purchaser
defense
pursuant
to
§
101(
40)
of
CERCLA;
(
iii)
the
contiguous
property
owner
defense
pursuant
to
§
107(
q)
of
CERCLA;
and
(
2)
persons
conducting
site
characterization
and
assessments
with
the
use
of
a
grant
awarded
under
CERCLA
§
104(
k)(
2)(
B).

(
c)
Scope.
(
1)
Persons
seeking
to
qualify
for
one
of
the
liability
defenses
under
§
312.1(
b)(
1)
must
conduct
investigations
as
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.
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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:

certify,
as
used
in
§
312.21(
d)
of
this
subpart
means:

an
expression
of
professional
opinion
regarding
those
facts
or
findings
which
are
the
subject
of
the
certification.
(
Note:
such
certification
does
not
constitute
a
warranty
or
guarantee,
either
express
or
implied.)

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,
sufficient
to
meet
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
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)
and
have
five
(
5)
years
of
full
time
experience
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;
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
Baccalaureate
degree
or
higher
degree
from
an
accredited
institute
of
higher
education
in
relevant
disciplines
of
science,
engineering
or
geology
and
the
equivalent
of
five
(
5)
years
of
full­
time
experience
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.
(
d)
persons
who
do
not
meet
the
above
definition
of
an
environmental
professional
may
assist
in
the
conduct
of
the
all
appropriate
inquiry
if
such
persons
are
under
the
direct
supervision
and
responsible
charge
of
a
person
meeting
the
definition
of
an
environmental
professional
provided
above.

Good
faith
means:
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absence
of
any
intention
to
seek
an
unfair
advantage
or
to
defraud
another
party;
an
honest
and
sincere
intention
to
fulfill
one's
obligations
in
the
conduct
or
transaction
concerned.

§
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"
pursuant
to
CERCLA
101(
35)(
B)
must
include:
(
1)
An
inquiry
by
an
environmental
professional
(
as
defined
in
§
312.10),
as
provided
in
§
312.21;
(
2)
Information
collected
pursuant
to
§
312.22
by
persons
identified
under
§
312.1(
b),
and
as
required
in
§
312.22;
and
(
3)
Searches
for
recorded
environmental
cleanup
liens,
as
required
in
§
312.25.
(
B)
All
appropriate
inquiries
can
include
information
contained
in
an
inquiry
conducted
by,
or
on
the
part
of,
a
party
unaffiliated
with
the
persons
responsible
for
the
inquiries
identified
under
§
312.1(
b),
provided:
(
1)
such
information
was
collected
as
part
of
all
appropriate
inquiries
conducted
in
compliance
with
the
requirements
of
this
part;
(
2)
such
information
was
collected
within
180
days
of
the
purchase
date
of
the
subject
property;
(
3)
there
have
been
no
changes
in
the
conditions
of
the
subject
property
since
the
information
was
collected;
and
(
4)
any
previously
collected
information
is
updated
to
include
any
relevant
specialized
knowledge,
as
outlined
in
§
312.28,
of
the
persons
conducting
the
all
appropriate
inquiries
for
the
subject
property,
including
those
persons
identified
in
§
312.1(
b)
and
the
environmental
professional,
as
defined
in
§
312.10.
(
c)
Objectives.
These
All
Appropriate
Inquiry
standards
and
practices
seek
to
identify
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
subject
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
persons
identified
under
§
312.1(
b)
and
the
environmental
professional,
as
defined
in
§
312.10,
must
seek
to
identify
through
the
conduct
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;
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(
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)
engineering
controls;
(
6)
institutional
controls,
including
environmental
land­
use
restrictions,
applicable
to
the
subject
property;
and
(
7)
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.
(
d)
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
persons
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
and
evaluate
the
thoroughness
and
reliability
of
the
information
gathered
in
complying
with
each
standard
and
practice
listed
in
subpart
C
of
this
part
taking
into
account
information
gathered
in
the
course
of
complying
with
the
other
standards
and
practices
of
subpart
C
of
this
part;
and
(
3)
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)
in
each
area
of
inquiry
under
each
standard
and
practice,
identify
such
data
gaps,
identify
the
sources
of
information
consulted
to
address
the
data
gaps,
and
comment
upon
the
significance
of
such
data
gaps
with
regard
to
the
ability
to
detect
a
release
or
threatened
release
of
hazardous
substances
on,
at,
in,
or
to
the
subject
property.
Sampling
and
analysis
may
be
conducted
to
develop
information
to
address
data
gaps.

(
f)
None
of
the
requirements
of
this
part
limits
or
expands
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,
including
environmental
professionals,
to
provide
all
legally
required
notices
with
respect
to
the
discovery
or
release
of
any
hazardous
substances.
It
is
the
obligation
of
the
person,
including
environmental
professionals,
conducting
the
inquiry
to
determine
their
respective
disclosure
obligations
under
federal,
state,
tribal,
and
local
law
and
to
comply
with
such
disclosure
requirements.
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§
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.
Such
inquiry
is
hereafter
referred
to
as
"
the
inquiry
of
the
environmental
professional."
(
b)
The
inquiry
of
the
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
by
an
environmental
professional
must
be
documented
in
a
written
report
that,
at
a
minimum,
includes
the
following:
(
1)
An
opinion
as
to
the
likelihood
of
the
presence
of
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in,
or
to
the
subject
property,
after
consideration
of
the
results
of
the
all
appropriate
inquiry;
(
2)
An
identification
of
any
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
determine
the
presence
of,
or
the
lack
of,
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in,
or
to
the
subject
property
and
comments
regarding
the
significance
of
such
data
gaps
on
the
environmental
professional's
ability
to
provide
an
opinion
as
to
the
likelihood
of
the
presence
of
such
a
release
or
threatened
release
of
a
hazardous
substance;
and
(
3)
The
qualifications
of
the
environmental
professional(
s).
(
d)
The
environmental
professional
must
"
certify,"
as
defined
in
section
§
312.10,
that
the
all
appropriate
inquiry
achieves
the
objectives
and
performance
factors
of
§
312.20,
by:
(
1)
Placing
the
following
statement
in
the
written
document
identified
in
§
312.21(
c)
above:

and
(
2)
Signing
the
document.

For
section
312.10:

certify,
as
used
in
§
312.21(
d)
of
this
subpart
means:
an
expression
of
professional
opinion
regarding
those
facts
or
findings
which
are
the
subject
of
the
certification.
(
Note:
such
certification
does
not
constitute
a
warranty
or
guarantee,
either
express
or
implied.)
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§
312.22
Additional
Inquiries
(
a)
Persons
identified
under
§
312.1(
b)
must
provide
the
following
information
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
fair
market
value
of
the
subject
property,
if
the
property
was
not
contaminated,
as
required
in
§
312.29;
and
(
3)
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property,
as
required
in
§
312.30.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
8
October
23,
2003
§
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
for
the
purposes
of
achieving
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
(
b)
The
inquiry
of
the
environmental
professional
must
include
interviewing
the
current
owner
and
occupant
of
the
subject
property.
(
c)
The
inquiry
of
the
environmental
professional
also
must
include,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d),
interviewing
one
or
more
of
the
following
persons:
(
1)
current
and
past
key
facility
managers,
(
2)
past
owners
or
operators
of
the
subject
property,
or
(
3)
employees
of
current
and
past
occupants
of
the
subject
property.
(
d)
In
the
case
of
inquiries
conducted
at
"
abandoned
properties,"
as
defined
in
§
312.10,
where
there
is
evidence
of
potential
unauthorized
uses
of
the
subject
property
or
evidence
of
uncontrolled
access
to
the
subject
property,
the
environmental
professional's
inquiry
must
include
interviewing
one
or
more
(
as
necessary)
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
uses
of,
or
releases
at,
such
abandoned
properties
for
the
purpose
of
gathering
information
necessary
to
achieve
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
9
October
23,
2003
§
312.24
Reviews
of
historical
sources
of
information
(
a)
Historical
documents
and
records
such
as
chain
of
title
documents,
aerial
photographs,
fire
insurance
maps,
building
department
records,
and
land
use
records
must
be
reviewed
for
the
purposes
of
achieving
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
(
b)
Historical
documents
and
records
reviewed
must
cover
a
period
of
time
as
far
back
in
the
history
of
the
subject
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
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
achieve
the
objectives
and
performance
factors
of
§
312.20(
c)
and
(
d).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
10
October
23,
2003
§
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.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
11
October
23,
2003
§
312.26
Reviews
of
Federal,
Tribal,
State,
and
local
government
records
(
a)
Federal,
Tribal,
State,
and
local
government
records
(
including
data
bases
of
government
records)
of
the
subject
property
and
adjoining
properties
must
be
reviewed
for
the
purposes
of
achieving
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
(
b)
With
regard
to
the
subject
property,
the
review
of
Federal,
Tribal,
State,
and
local
government
records
or
data
bases
of
government
records
should
include:
(
1)
records
of
reported
releases
or
threatened
releases,
including
site
investigation
reports
for
the
subject
property;
(
2)
records
of
activities,
conditions,
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)
public
health
records;
(
4)
engineering
controls;
and
(
5)
institutional
controls,
including
environmental
land
use
restrictions,
applicable
to
the
subject
property.

(
c)
With
regard
to
nearby
or
adjoining
properties,
the
review
of
Federal,
Tribal,
State,
and
local
government
records
or
data
bases
of
government
records
should
include
the
identification
of
the
following:
(
1)
Properties
for
which
there
are
government
records
of
reported
releases
or
threatened
releases.
Such
records
and
data
bases
containing
such
records
and
the
associated
distances
from
the
subject
property
for
which
such
information
should
be
searched
include
the
following:
(
i)
records
of
NPL
sites
or
state­
equivalent
sites
(
one
mile);
(
ii)
RCRA
CORRACTS
recorads
(
one
mile);
(
iii)
records
of
state­
permitted
or
registered
hazardous
waste
sites
(
one
mile);
(
iv)
records
of
leaking
underground
storage
tanks
(
one­
half
mile);
and
(
v)
Emergency
Response
Notification
System
records
(
for
properties
adjoining
the
subject
property).
(
2)
Properties
that
previously
were
identified
or
regulated
by
a
government
entity
due
to
environmental
concerns
at
the
property.
Such
records
and
data
bases
containing
such
records
and
the
associated
distances
from
the
subject
property
for
which
such
information
should
be
searched
include
the
following:
(
i)
records
of
delisted
NPL
sties
(
one­
half
mile);
(
ii)
registries
of
engineering
controls
(
one­
half
mile);
(
iii)
registries
of
institutional
controls
(
one­
half
mile);
and
(
iv)
records
of
former
CERCLA
sites
with
no
further
remedial
action
notices
(
one­
half
mile).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
12
October
23,
2003
(
3)
Adjoining
properties
for
which
there
are
records
of
federally­
permitted
or
statepermitted
or
registered
waste
management
activities.
Such
records
and
data
bases
that
may
contain
such
records
include
the
following:
(
i)
records
of
RCRA
small
quantity
and
large
quantity
generators
(
ii)
records
of
federally­
permitted
or
state­
permitted
(
or
registered)
landfills
and
solid
waste
management
facilities;
(
iii)
records
of
underground
storage
tanks;
and
(
iv)
records
of
facilities
managing
toxic
substances
regulated
under
the
Toxic
Substances
and
Control
Act;
(
4)
A
review
of
additional
government
records
with
regard
to
sites
identified
under
§
312.26(
c)(
1)­(
3)
above
may
be
necessary
in
the
judgment
of
the
environmental
professional
for
the
purpose
of
achieving
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d).
(
d)
The
search
distance
from
the
subject
property
boundary
for
reviewing
government
records
or
data
bases
of
government
records
listed
in
§
312.26(
c)
may
be
modified
based
upon
the
professional
judgment
of
the
environmental
professional.
The
rationale
for
such
modifications
must
be
documented
by
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,
hydrogeologic,
or
topographic
conditions
of
the
subject
property
and
surrounding
environment,
(
3)
land
use
or
"
land­
use
densities,"
(
as
defined
in
§
312.10)
(
4)
property
type,
(
5)
existing
or
past
uses
of
surrounding
properties,
(
6)
potential
migration
pathways
(
e.
g.,
ground­
water
flow
direction,
prevalent
wind
direction),
or
(
7)
other
relevant
factors.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
13
October
23,
2003
§
312.27
Visual
inspections
of
the
facility
and
of
adjoining
properties
(
a)
For
the
purpose
of
achieving
the
objectives
and
performance
factors
in
§
312.20(
c)
and
(
d),
the
inquiry
of
the
environmental
professional
must
include:
(
1)
a
visual
on­
site
inspection
of
the
subject
property
and
facilities
and
improvements
on
the
subject
property,
including
a
visual
inspection
of
the
areas
where
hazardous
substances
are
or
were
used,
stored,
treated,
handled,
or
disposed.
Physical
limitations
to
the
visual
inspection
must
be
noted.
(
2)
a
visual
inspection
or
observation
of
adjoining
properties,
from
the
subject
property
line,
public
rights­
of­
way,
or
other
vantage
point,
including
a
visual
inspection
or
observation
of
areas
where
hazardous
substances
may
be
or
may
have
been
stored,
treated,
handled
or
disposed.
Physical
limitations
to
the
inspection
or
observation
of
adjacent
properties
must
be
noted.
(
b)
Persons
conducting
site
characterization
and
assessments
using
a
grant
awarded
under
CERCLA
§
104(
k)(
2)(
B)
must
include
in
the
inquiries
referenced
in
§
312.27(
a)
visual
inspections
and
observations
of
areas
where
hazardous
substances,
petroleum
and
petroleum
products,
controlled
substances,
and
hazardous
pollutants
and
contaminants
may
be
or
may
have
been
used,
stored,
treated,
handled
or
disposed
at
the
subject
property
and
adjoining
properties.
(
c)
A
visual
on­
site
inspection
of
the
subject
property
must
be
conducted.
In
the
unusual
circumstance
where
an
on­
site
visual
inspection
of
the
subject
property
cannot
be
performed
because
of
physical
limitations,
remote
location,
or
other
inability
to
obtain
access
to
the
property,
provided
"
good
faith"
(
as
defined
in
§
312.10)
efforts
have
been
taken
to
obtain
such
access,
an
on­
site
inspection
will
not
be
required.
The
mere
refusal
of
a
voluntary
seller
to
provide
access
to
the
subject
property
does
not
constitute
an
unusual
circumstance.
In
these
unusual
circumstances,
the
inquiry
of
the
environmental
professional
must
include:
(
1)
visually
inspecting
or
observing
the
subject
property
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
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful,
in
accordance
with
§
312.20(
d)(
3);
and
(
3)
documentation
of
other
sources
of
information
regarding
releases
or
threatened
releases
at
the
subject
property
that
were
consulted
in
accordance
with
§
312.20(
d)(
3).

For
section
§
312.10:

Good
faith
means:

absence
of
any
intention
to
seek
an
unfair
advantage
or
to
defraud
another
party;
an
honest
and
sincere
intention
to
fulfill
one's
obligations
in
the
conduct
or
transaction
concerned.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
14
October
23,
2003
§
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)).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
15
October
23,
2003
§
312.29
The
relationship
of
the
purchase
price
to
the
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
subject
property
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
subject
property
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
subject
property
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,
petroleum
and
petroleum
products,
controlled
substances,
and/
or
hazardous
pollutants
and
contaminants.
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
16
October
23,
2003
§
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
commonly
known
or
reasonably
ascertainable
information
within
the
local
community
about
the
subject
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
of
the
environmental
professional.
(
c)
The
environmental
professional
may,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
of
§
312.20(
c)
and
(
d),
refer
to
one
or
more
of
the
following
sources
of
information:
(
1)
current
owners
or
occupants
of
neighboring
properties
or
properties
adjacent
to
the
subject
property;
(
2)
local
and
state
government
officials
who
may
have
knowledge
of,
or
information
related
to,
the
subject
property;
(
3)
others
with
knowledge
of
the
subject
property;
and
(
4)
other
sources
of
information
(
e.
g.,
newspapers,
websites,
community
organization,
local
libraries
and
historical
societies).
DRAFT
THIS
IS
NOT
A
PROPOSED
OR
FINAL
REGULATION
DRAFT***
DRAFT***
For
Discussion
Purposes
Only***
Do
Not
Cite***
DRAFT**
DRAFT
17
October
23,
2003
§
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
the
degree
of
obviousness
of
the
presence
of
a
release
or
threatened
release
at
the
subject
property.
(
b)
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
the
ability
to
detect
contamination
by
appropriate
investigation.
The
inquiry
of
the
environmental
professional
should
include
an
opinion
regarding
additional
appropriate
investigation,
if
any.
