Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
NOT
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PROPOSED
OR
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February
17,
2004
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
Inquiries
Subpart
A
 
Introduction
Sec.
312.1
Purpose,
applicability,
scope,
and
disclosure
obligations
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,
scope
and
disclosure
obligations.

(
a)
Purpose.
The
purpose
of
this
section
is
to
provide
standards
and
procedures
for
"
all
appropriate
inquiries"
for
the
purposes
of
CERCLA
§
101(
35)(
B).

(
b)
Applicability.
The
requirements
of
this
part
are
applicable
to:

(
1)
persons
seeking
to
qualify
for:

(
i)
the
innocent
landowner
defense
pursuant
to
CERCLA
§
§
101(
35)
and
107(
b)(
3);

(
ii)
the
bona
fide
prospective
purchaser
defense
pursuant
to
CERCLA
§
§
101(
40)
and
107(
r);

(
iii)
the
contiguous
property
owner
defense
pursuant
to
CERCLA
§
107(
q);
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
conditions
indicative
of
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)(
2)
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
conditions
indicative
of
releases
and
threatened
releases,
as
defined
in
CERCLA
§
101(
22),
of:
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draft)
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(
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
21
U.
S.
C.
802.

(
d)
Disclosure
obligations.
None
of
the
requirements
of
this
part
limits
or
expands
disclosure
obligations
under
any
federal,
state,
tribal,
or
local
law,
including
the
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
of
releases
of
hazardous
substances.
It
is
the
obligation
of
each
person,
including
environmental
professionals,

conducting
the
inquiry
to
determine
his
or
her
respective
disclosure
obligations
under
federal,

state,
tribal,
and
local
law
and
to
comply
with
such
disclosure
requirements.
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February
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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:

Abandoned
property
means:
property
that
can
be
presumed
to
be
deserted,
or
an
intent
to
relinquish
possession
or
control
can
be
inferred
from
the
general
disrepair
or
lack
of
activity
thereon
such
that
a
reasonable
person
could
believe
that
there
was
an
intent
on
the
part
of
the
current
owner
to
surrender
rights
to
the
property.

Adjoining
properties
means:

any
real
property
or
properties
the
border
of
which
is
(
are)
shared
in
part
or
in
whole
with
that
of
the
subject
property,
or
that
would
be
shared
in
part
or
in
whole
with
that
of
the
subject
property
but
for
a
street,
road,
or
other
public
thoroughfare
separating
the
properties.

Data
gap
means:

a
lack
of
or
inability
to
obtain
information
required
by
the
standards
and
practices
listed
in
subpart
C
of
Part
312
despite
good
faith
efforts
by
the
environmental
professional
or
persons
identified
under
§
312.1(
b),
as
appropriate,
to
gather
such
information
pursuant
to
§
312.20(
d)(
1)

and
§
312.20(
d)(
2).

Environmental
Professional
means:

(
a)
a
person
who
possesses
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
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presence
of
releases
or
threatened
releases
(
per
§
312.1(
c))
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
objectives
and
performance
factors
in
§
§
312.20(
d)
and
(
e).

(
b)
Such
a
person
must:

(
1)
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
the
equivalent
of
three
(
3)
years
of
full­
time
relevant
experience;
or
(
2)
be
licensed
or
certified
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory
(
or
the
Commonwealth
of
Puerto
Rico)
to
perform
environmental
inquiries
as
defined
in
§
312.21
and
have
the
equivalent
of
three
(
3)
years
of
full­
time
relevant
experience;
or
(
3)
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
(
4)
as
of
the
date
of
the
promulgation
of
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience.

(
c)
An
environmental
professional
should
remain
current
in
his
or
her
field
through
participation
in
continuing
education
or
other
activities
and
should
be
able
to
demonstrate
such
efforts.

(
d)
The
definition
of
environmental
professional
provided
above
does
not
preempt
state
professional
licensing
or
registration
requirements
such
as
those
for
a
professional
geologist,

engineer,
or
site
remediation
professional.
Before
commencing
work,
a
person
should
determine
the
applicability
of
state
professional
licensing
or
registration
laws
to
the
activities
to
be
undertaken
as
part
of
the
inquiry
identified
in
§
312.21(
b).

(
e)
A
person
who
does
not
qualify
as
an
environmental
professional
under
the
foregoing
definition
may
assist
in
the
conduct
of
all
appropriate
inquiries
in
accordance
with
this
part
if
such
person
is
under
the
supervision
or
responsible
charge
of
a
person
meeting
the
definition
of
an
environmental
professional
provided
above.
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Relevant
experience,
as
used
in
the
definition
of
environmental
professional
above,
means:

Participation
in
the
performance
of
environmental
site
assessments
that
may
include
environmental
analyses,
investigations,
and
remediation
which
involve
the
understanding
of
surface
and
subsurface
environmental
conditions
and
the
processes
used
to
evaluate
these
conditions
and
for
which
professional
judgment
was
used
to
develop
opinions
regarding
conditions
indicative
of
releases
or
threatened
releases
(
per
§
312.1(
c))
to
the
subject
property.

Good
faith
means:

the
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.

Institutional
controls
means:

non­
engineered
instruments,
such
as
administrative
and/
or
legal
controls,
that
help
to
minimize
the
potential
for
human
exposure
to
contamination
and/
or
protect
the
integrity
of
a
remedy.

§
312.11
 
References
(
a)
When
used
in
part
312
of
this
chapter,
the
following
publications
are
incorporated
by
reference:
[
To
be
determined]
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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)
the
collection
of
information
pursuant
to
§
312.22
by
persons
identified
under
§
312.1(
b);
and
(
3)
searches
for
recorded
environmental
cleanup
liens,
as
required
in
§
312.25.

(
b)
All
appropriate
inquiries
may
include
the
results
of
and
information
contained
in
an
inquiry
previously
conducted
by,
or
on
the
behalf
of,
persons
identified
under
§
312.1(
b)
and
who
are
responsible
for
the
inquiries
for
the
subject
property,
provided:

(
1)
such
information
was
collected
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
the
requirements
of
this
part
(
40
CFR
Part
312)
and
with
§
§
101(
35)(
B),

101(
40)(
B)
and
107(
q)(
A)(
viii);

(
2)
such
information
was
collected
or
updated
within
one
year
prior
to
the
purchase
date
of
the
subject
property;

(
3)
not
withstanding
§
312.20(
b)(
2)
above,
the
following
components
of
the
inquiries
were
conducted
or
updated
within
a
180
days
of
and
prior
to
the
date
of
purchase
of
the
subject
property:

(
i)
interviews
with
past
and
present
owners,
operators,
and
occupants
(
per
§
312.23);

(
ii)
searches
for
recorded
environmental
cleanup
liens
(
per
§
312.25);

(
iii)
reviews
of
federal,
tribal,
state,
and
local
government
records
(
per
§
312.26);

(
iv)
visual
inspections
of
the
facility
and
of
adjoining
properties
(
per
§
312.27);
and
(
v)
the
declaration
by
the
environmental
professional
(
per
§
312.21(
d)).

(
4)
previously
collected
information
is
updated
to
include
relevant
changes
in
the
conditions
of
the
property
and
specialized
knowledge,
as
outlined
in
§
312.28,
of
the
persons
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conducting
the
all
appropriate
inquiries
for
the
subject
property,
including
persons
identified
in
§
312.1(
b)
and
the
environmental
professional,
defined
in
§
312.10.

(
c)
All
appropriate
inquiries
can
include
the
results
of
report(
s)
specified
in
§
312.21(
c),

that
have
been
prepared
by
or
for
other
persons,
provided
that:

(
1)
the
report(
s)
meets
the
objectives
and
performance
factors
of
this
regulation,
as
specified
in
§
§
312.20(
d)
and
(
e);
and
(
2)
the
person
specified
in
§
312.1(
b)
and
seeking
to
use
the
previously
collected
information
reviews
the
information
and
conducts
the
additional
inquiries
pursuant
to
§
312.28,

§
312.29
and
§
312.30
and
the
all
appropriate
inquiries
are
updated
per
§
312.20(
b)(
3),
as
necessary.

(
d)
Objectives.
The
standards
and
practices
set
forth
in
this
part
for
All
Appropriate
Inquiries
are
intended
to
result
in
the
identification
of
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
subject
property.

(
1)
In
performing
the
all
appropriate
inquiries,
as
defined
in
§
312.20
and
provided
in
the
standards
and
practices
set
forth
this
subpart,
the
persons
identified
under
§
312.1(
b)(
1)
and
the
environmental
professional,
as
defined
in
§
312.10,
must
seek
to
identify
through
the
conduct
of
the
standards
and
practices
set
forth
in
this
subpart,
the
following
types
of
information
about
the
subject
property:

(
i)
current
and
past
property
uses
and
occupancies;

(
ii)
current
and
past
uses
of
hazardous
substances;

(
iii)
waste
management
and
disposal
activities
that
could
have
caused
releases
or
threatened
releases
of
hazardous
substances;

(
iv)
current
and
past
corrective
actions
and
response
activities
undertaken
to
address
past
and
on­
going
releases
of
hazardous
substances;

(
v)
engineering
controls;

(
vi)
institutional
controls;
and
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February
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(
vii)
properties
adjoining
or
located
nearby
the
subject
property
that
have
environmental
conditions
that
could
have
resulted
in
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
to
the
subject
property.

(
2)
In
the
case
of
persons
identified
in
§
312.1(
b)(
2),
the
standards
and
practices
for
All
Appropriate
Inquiries
set
forth
in
this
part
are
intended
to
result
in
the
identification
of
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,
pollutants,
contaminants,

petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)
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
this
subpart,
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
this
subpart,
the
following
types
of
information
about
the
subject
property:

(
i)
current
and
past
property
uses
and
occupancies;

(
ii)
current
and
past
uses
of
hazardous
substances,
pollutants,
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802);

(
iii)
waste
management
and
disposal
activities;

(
iv)
current
and
past
corrective
actions
and
response
activities
undertaken
to
address
past
and
on­
going
releases
of
hazardous
substances
pollutants,
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802);

(
v)
engineering
controls;

(
vi)
institutional
controls;
and
(
vii)
properties
adjoining
or
located
nearby
the
subject
property
that
have
environmental
conditions
that
could
have
resulted
in
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
pollutants,
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)
to
the
subject
property.

(
e)
Performance
factors.
In
performing
each
of
the
standards
and
practices
set
forth
in
this
subpart
and
to
meet
the
objectives
stated
above
in
§
312.20(
d),
the
persons
identified
under
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
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Cite*
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DOCUMENT
IS
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A
PROPOSED
OR
FINAL
RULE*
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Note
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10
February
17,
2004
§
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
this
subpart
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
practicably
be
reviewed;
and
(
2)
review
and
evaluate
the
thoroughness
and
reliability
of
the
information
gathered
in
complying
with
each
standard
and
practice
listed
in
this
subpart
taking
into
account
information
gathered
in
the
course
of
complying
with
the
other
standards
and
practices
of
this
subpart.

(
f)
To
the
extent
there
are
data
gaps
(
as
defined
in
§
312.10)
in
the
information
developed
as
part
of
the
inquiries
per
§
312.20(
e)
that
affect
the
ability
of
persons
(
including
the
environmental
professional)
conducting
the
all
appropriate
inquiries
to
identify
conditions
indicative
of
releases
or
threatened
releases
(
such
as
in
the
historical
record
of
property
uses)
in
each
area
of
inquiry
under
each
standard
and
practice
such
persons
should
identify
such
data
gaps,

identify
the
sources
of
information
consulted
to
address
such
data
gaps,
and
comment
upon
the
significance
of
such
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
[
and
in
the
case
of
persons
identified
in
§
312.1(
b)(
2),
hazardous
substances,
pollutants,
contaminants,
petroleum
and
petroleum
products,

and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)]
on,
at,
in,
or
to
the
subject
property.

Sampling
and
analysis
may
be
conducted
to
develop
information
to
address
data
gaps.

(
g)
Releases
and
threatened
releases
identified
as
part
of
the
all
appropriate
inquiries
should
be
noted
in
the
report
of
the
inquiries.
These
standards
and
practices
however
are
not
intended
to
require
the
identification
of
quantities
or
amounts,
either
individually
or
in
the
aggregate,
of
hazardous
substances
pollutants,
contaminants,
petroleum
and
petroleum
products,

and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)
that
because
of
said
quantities
and
amounts,
generally
would
not
pose
a
threat
to
human
health
or
the
environment.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
NOT
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PROPOSED
OR
FINAL
RULE*
Do
Note
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11
February
17,
2004
§
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
supervision
or
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
whether
the
inquiry
has
identified
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
[
and
in
the
case
of
inquiries
conducted
for
persons
identified
in
§
312.1(
b)(
2)
conditions
indicative
of
releases
and
threatened
releases
of
pollutants,

contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)]
on,
at,
in,
or
to
the
subject
property;

(
2)
an
identification
of
data
gaps
(
as
defined
in
§
312.10)
in
the
information
developed
as
part
of
the
inquiry
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
[
and
in
the
case
of
inquiries
conducted
for
persons
identified
in
§
312.1(
b)(
2)
conditions
indicative
of
releases
and
threatened
releases
of
pollutants,
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)]
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
whether
the
inquiry
has
identified
conditions
indicative
of
releases
or
threatened
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
NOT
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PROPOSED
OR
FINAL
RULE*
Do
Note
Cite
12
February
17,
2004
releases
on,
at,
in,
or
to
the
subject
property.
If
there
are
data
gaps
such
that
the
environmental
professional
cannot
reach
an
opinion
regarding
the
identification
of
conditions
indicative
of
releases
and
threatened
releases,
such
data
gaps
must
be
noted
in
the
environmental
professional's
opinion
per
§
312.21(
c)(
1)
above;
and
(
3)
the
qualifications
of
the
environmental
professional(
s).

(
d)
The
environmental
professional
must
place
the
following
statement
in
the
written
document
identified
in
§
312.21(
c)
above
and
sign
the
document:

[
I,
We]
declare
that,
to
the
best
of
[
my,
our]
professional
knowledge
and
belief,
[
I,
we]
meet
the
definition
of
Environmental
Professional
as
defined
in
§
312.10
of
40
CFR
312.

[
I,
We]
have
the
specific
qualifications
based
on
education,
training,
and
experience
to
assess
a
property
of
the
nature,
history,
and
setting
of
the
subject
property.
[
I,
We]
have
developed
and
performed
the
all
appropriate
inquiries
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
Part
312.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
THIS
DOCUMENT
IS
NOT
A
PROPOSED
OR
FINAL
RULE*
Do
Note
Cite
13
February
17,
2004
§
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)
as
required
by
§
312.25
and
if
not
otherwise
obtained
by
the
environmental
professional,
environmental
cleanup
liens
against
the
subject
property
that
are
filed
or
recorded
under
federal,
tribal,
state,
or
local
law;

(
2)
as
required
by
§
312.28,
specialized
knowledge
or
experience
of
the
person
identified
in
§
312.1(
b);

(
3)
as
required
by
§
312.29,
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
subject
property,
if
the
property
was
not
contaminated;
and
(
4)
as
required
by
§
312.30,
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
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Not
Cite*
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DOCUMENT
IS
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PROPOSED
OR
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RULE*
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Note
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14
February
17,
2004
§
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
of
§
§
312.20(
d)
and
(
e).

(
b)
The
inquiry
of
the
environmental
professional
must
include
interviewing
the
current
owner
and
occupant
of
the
subject
property.
If
the
property
has
multiple
occupants,
the
inquiry
of
the
environmental
professional
shall
include
interviewing
major
occupants,
as
well
as
those
occupants
likely
to
use,
store,
treat,
handle
or
dispose
of
hazardous
substances
[
and
in
the
case
of
inquiries
conducted
for
persons
identified
in
§
312.1(
b)(
2)
pollutants,
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
(
as
defined
in
21
U.
S.
C.
802)],
or
those
who
have
likely
done
so
in
the
past.

(
c)
The
inquiry
of
the
environmental
professional
also
should
include,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
of
§
§
312.20(
d)
and
(
e),
interviewing
one
or
more
of
the
following
persons:

(
1)
current
and
past
facility
managers
with
relevant
knowledge
of
uses
and
physical
characteristics
of
the
property,

(
2)
past
owners,
occupants,
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
of
§
§
312.20(
d)
and
(
e).
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
THIS
DOCUMENT
IS
NOT
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PROPOSED
OR
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RULE*
Do
Note
Cite
15
February
17,
2004
§
312.24
Reviews
of
historical
sources
of
information
(
a)
Historical
documents
and
records
must
be
reviewed
for
the
purposes
of
achieving
the
objectives
and
performance
factors
of
§
§
312.20(
d)
and
(
e).
Historical
documents
and
records
may
include,
but
are
not
limited
to,
aerial
photographs,
fire
insurance
maps,
building
department
records,
chain
of
title
documents,
and
land
use
records.

(
b)
Historical
documents
and
records
reviewed
must
cover
a
period
of
time
as
far
back
in
the
history
of
the
subject
property
as
it
can
be
shown
that
the
property
contained
structures
or
from
the
time
the
property
was
first
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes.
For
the
purpose
of
achieving
the
objectives
and
performance
factors
of
§
§
312.20(
d)
and
(
e),
the
environmental
professional
may
exercise
professional
judgment
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.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
THIS
DOCUMENT
IS
NOT
A
PROPOSED
OR
FINAL
RULE*
Do
Note
Cite
16
February
17,
2004
§
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
such
environmental
cleanup
liens
associated
with
the
subject
property
must
be
provided
to
the
environmental
professional.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
THIS
DOCUMENT
IS
NOT
A
PROPOSED
OR
FINAL
RULE*
Do
Note
Cite
17
February
17,
2004
§
312.26
Reviews
of
Federal,
Tribal,
State,
and
local
government
records
(
a)
Federal,
tribal,
state,
and
local
government
records
or
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
of
§
§
312.20(
d)
and
(
e).

(
b)
With
regard
to
the
subject
property,
the
review
of
federal,
tribal,
and
state
government
records
or
data
bases
of
such
government
records
and
local
government
records
and
data
bases
of
such
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
releases
or
threatened
releases
as
defined
in
§
312.1(
c),
including
landfill
and
other
disposal
unit
location
records
and
permits,
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)
CERCLIS
records;

(
4)
public
health
records;

(
5)
Emergency
Response
Notification
System
records;

(
6)
registries
or
publicly
available
lists
of
engineering
controls;
and
(
7)
registries
or
publicly
available
lists
of
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
databases
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
or
databases
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
tribal­
and
state­
equivalent
sites
(
one
mile);
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
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18
February
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2004
(
ii)
RCRA
facilities
subject
to
corrective
action
(
one
mile);

(
iii)
records
of
federally­
registered,
or
state­
permitted
or
registered,
hazardous
waste
sites
identified
for
investigation
or
remediation,
such
as
sites
enrolled
in
state
and
tribal
voluntary
cleanup
programs
and
tribal­
and
state­
listed
brownfields
sites
(
one­
half
mile);

(
iv)
records
of
leaking
underground
storage
tanks
(
one­
half
mile);
and
(
2)
properties
that
previously
were
identified
or
regulated
by
a
government
entity
due
to
environmental
concerns
at
the
property.
Such
records
or
databases
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
sites
(
one­
half
mile);

(
ii)
registries
or
publicly
available
lists
of
engineering
controls
(
one­
half
mile);

(
iii)
registries
or
publicly
available
lists
of
institutional
controls
(
one­
half
mile);
and
(
iv)
records
of
former
CERCLIS
sites
with
no
further
remedial
action
notices
(
one­
half
mile).

(
3)
properties
for
which
there
are
records
of
federally­
permitted,
tribal­
permitted
or
registered,
or
state­
permitted
or
registered
waste
management
activities.
Such
records
or
data
bases
that
may
contain
such
records
include
the
following:

(
i)
records
of
RCRA
small
quantity
and
large
quantity
generators
(
adjoining
properties)

(
ii)
records
of
federally­
permitted,
tribal­
permitted,
or
state­
permitted
(
or
registered)

landfills
and
solid
waste
management
facilities
(
one­
half
mile);
and
(
iii)
records
of
registered
storage
tanks
(
adjoining
property).

(
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
of
§
§
312.20(
d)
and
(
e).

(
d)
The
search
distance
from
the
subject
property
boundary
for
reviewing
government
records
or
databases
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
Negotiated
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draft)
Final
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Document
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19
February
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2004
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)
the
nature
and
extent
of
a
release,

(
2)
geologic,
hydrogeologic,
or
topographic
conditions
of
the
subject
property
and
surrounding
environment,

(
3)
land
use
or
development
densities,

(
4)
the
property
type,

(
5)
existing
or
past
uses
of
surrounding
properties,

(
6)
potential
migration
pathways
(
e.
g.,
groundwater
flow
direction,
prevalent
wind
direction),
or
(
7)
other
relevant
factors.
Negotiated
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draft)
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Document
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20
February
17,
2004
§
312.27
Visual
inspections
of
the
facility
and
of
adjoining
properties
(
a)
For
the
purpose
of
achieving
the
objectives
and
performance
factors
of
§
§
312.20(
d)

and
(
e),
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
may
be
or
may
have
been
used,
stored,
treated,
handled,
or
disposed.
Physical
limitations
to
the
visual
inspection
must
be
noted.

(
2)
a
visual
inspection
of
adjoining
properties,
from
the
subject
property
line,
public
rightsof
way,
or
other
vantage
point,
including
a
visual
inspection
of
areas
where
hazardous
substances
may
be
or
may
have
been
stored,
treated,
handled
or
disposed.
Physical
limitations
to
the
inspection
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
of
areas
where
hazardous
substances,
pollutants
and
contaminants,
petroleum
and
petroleum
products,
and
controlled
substances
as
defined
in
21
U.
S.
C.
802
may
be
or
may
have
been
used,

stored,
treated,
handled
or
disposed
at
the
subject
property
and
adjoining
properties.

(
c)
Except
as
noted
in
this
subsection,
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
and
inaccessible
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
such
unusual
circumstances,
the
inquiry
of
the
environmental
professional
must
include:

(
1)
visually
inspecting
the
subject
property
via
another
method
(
such
as
aerial
imagery
for
large
properties),
or
visually
inspecting
the
subject
property
from
the
nearest
accessible
vantage
point
(
such
as
the
property
line
or
public
road
for
small
properties);
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draft)
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Document
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21
February
17,
2004
(
2)
documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful;
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(
e).
Such
documentation
should
include
comments
by
the
environmental
professional
on
the
significance
of
the
failure
to
conduct
a
visual
on­
site
inspection
of
the
subject
property
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases
on,
at,
in,
or
to
the
subject
property,
if
any.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
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22
February
17,
2004
§
312.28
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
(
a)
Persons
to
whom
this
part
is
applicable
per
§
312.1(
b)
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
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property,
as
defined
in
§
312.1(
c).

(
b)
All
appropriate
inquiries,
as
outlined
in
§
312.20,
are
not
complete
unless
the
results
of
the
inquiries
take
into
account
the
relevant
and
applicable
specialized
knowledge
and
experience
of
the
persons
responsible
for
undertaking
the
inquiry
(
as
described
in
§
312.1(
b)).
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
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Not
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DOCUMENT
IS
NOT
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PROPOSED
OR
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RULE*
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23
February
17,
2004
§
312.29
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated
(
a)
Persons
to
whom
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
presence
of
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
know
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
presence
of
releases
or
threatened
releases
of
hazardous
substances,

pollutants,
contaminants,
petroleum
and
petroleum
products,
and/
or
controlled
substances
as
defined
in
21
U.
S.
C.
802.
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
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PROPOSED
OR
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RULE*
Do
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24
February
17,
2004
§
312.30
Commonly
known
or
reasonably
ascertainable
information
about
the
property
(
a)
Throughout
the
inquiries,
persons
to
whom
this
part
is
applicable
per
§
312.1(
b)
and
environmental
professionals
conducting
the
inquiry
must
take
into
account
commonly
known
or
reasonably
ascertainable
information
within
the
local
community
about
the
subject
property
and
consider
such
information
when
seeking
to
identify
conditions
indicative
of
releases
or
threatened
releases,
as
set
forth
in
§
312.1(
c),
at
the
subject
property.

(
b)
Commonly
known
information
may
include
information
obtained
by
the
person
to
whom
this
part
applies
per
§
312.1(
b)
or
by
the
environmental
professional
about
releases
or
threatened
releases
at
the
subject
property
that
is
incidental
to
the
information
obtained
during
the
inquiry
of
the
environmental
professional.

(
c)
To
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
of
§
§
312.20(
d)
and
(
e),
the
environmental
professional
should
gather
information
from
varied
sources
whose
input
either
individually
or
taken
together
may
provide
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property;
the
environmental
professional
may
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
organizations,

local
libraries
and
historical
societies).
Negotiated
Rulemaking
Committee
(
draft)
Final
Consensus
Document
Do
Not
Cite*
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DOCUMENT
IS
NOT
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PROPOSED
OR
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RULE*
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25
February
17,
2004
§
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
whom
this
part
is
applicable
per
§
312.1(
b)
and
environmental
professionals
conducting
an
inquiry
of
a
property
on
behalf
of
such
persons
must
take
into
account
the
information
collected
under
§
§
312.23
through
312.30
in
considering
the
degree
of
obviousness
of
the
presence
of
releases
or
threatened
releases
at
the
subject
property.

(
b)
Persons
to
whom
this
part
is
applicable
per
§
312.1(
b)
and
environmental
professionals
conducting
an
inquiry
of
a
property
on
behalf
of
such
persons
must
take
into
account
the
information
collected
under
§
§
312.23
through
312.30
in
considering
the
ability
to
detect
contamination
by
appropriate
investigation.
The
inquiry
of
the
environmental
professional
should
include
an
opinion
regarding
additional
appropriate
investigation,
if
any.
