Versions
with
OMB
REQUESTED
REVISIONS
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
312
[
SFUND­
2004­
0001;
FRL­
xxxx­
x]

RIN
2050­
AF04
Standards
and
Practices
for
All
Appropriate
Inquiries
AGENCY:
Environmental
Protection
Agency.

ACTION:
Proposed
Rule
SUMMARY:
The
Environmental
Protection
Agency
(
EPA)
today
is
proposing
federal
standards
and
practices
for
conducting
all
appropriate
inquiries,
as
required
under
Sections
101(
35)(
B)(
ii)

and
(
iii)
of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
(
CERCLA).
The
proposed
rule
would
establish
specific
regulatory
requirements
and
standards
for
conducting
all
appropriate
inquiries
into
the
previous
ownership,
uses,
and
environmental
conditions
of
a
property
for
the
purposes
of
meeting
the
all
appropriate
inquiries
provisions
necessary
to
qualify
for
certain
landowner
liability
protections
under
CERCLA.
The
standards
and
practices
proposed
today
also
would
be
applicable
to
persons
conducting
site
characterization
and
assessments
with
the
use
of
grants
awarded
under
CERCLA
Section
104(
k)(
2)(
B).

DATES:
Comments
on
today's
proposed
rule
must
be
submitted
on
or
before
[
insert
date
60
days
after
publication
of
the
Federal
Register].
Comments
postmarked
after
this
date
will
be
marked
"
late"
and
may
not
be
considered.
Any
person
may
request
a
public
hearing
on
this
proposal
by
filing
a
request
by
[
insert
date
15
days
after
date
of
publication
of
this
document].

ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
No.
SFUND­
2004­
0001,
by
one
of
the
following
methods:
2
1.
Federal
eRulemaking
Portal:
http://
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

2.
Agency
Website:
http://
www.
epa.
gov/
edocket.
EDOCKET,
EPA's
electronic
public
docket
and
comment
system,
is
EPA's
preferred
method
for
receiving
comments.
Follow
the
on­
line
instructions
for
submitting
comments.

3.
E­
mail:
Comments
may
be
sent
by
electronic
mail
to
superfund.
docket@
epa.
gov,

/
Attention
Docket
ID
No.
SFUND­
2004­
0001.

4.
Mail:
Send
comments
to:
OSWER
Docket,
Environmental
Protection
Agency,
Mailcode:

5305T,
1200
Pennsylvania
Ave.
N.
W.,
Washington,
D.
C.
20460,
Attention
Docket
ID
No.
SFUND­
2004­
0001.
In
addition,
please
mail
a
copy
of
your
comments
on
the
information
collection
provisions
to
the
Office
of
Information
and
Regulatory
Affairs,

Office
of
Management
and
Budget
(
OMB),
Attn:
Desk
Officer
for
EPA,
725
17th
St.

NW.,
Washington,
DC
20503."

5.
Hand
Delivery:
Deliver
your
comments
to:
EPA
Docket
Center,
EPA
West
Building,

Room
B102,
1301
Constitution
Ave.
N.
W.,
Washington,
D.
C.,
Attention
Docket
ID
No.

SFUND­
2004­
0001.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation,
and
special
arrangements
should
be
made
for
deliveries
of
boxed
information.

Instructions:
Direct
your
comments
to
Docket
ID
No.
SFUND­
2004­
0001.
EPA's
policy
is
that
all
comments
received
will
be
included
in
the
public
docket
without
change
and
may
be
made
available
online
at
http://
www.
epa.
gov/
edocket,
including
any
personal
information
provided,
3
unless
the
comment
includes
information
claimed
to
be
Confidential
Business
Information
(
CBI)

or
other
information
whose
disclosure
is
restricted
by
statute.
Do
not
submit
information
that
you
consider
to
be
CBI
or
otherwise
protected
through
EDOCKET,
regulations.
gov,
or
e­
mail.
The
EPA
EDOCKET
and
the
federal
regulations.
gov
websites
are
"
anonymous
access"
systems,

which
means
EPA
will
not
know
your
identity
or
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
If
you
send
an
e­
mail
comment
directly
to
EPA
without
going
through
EDOCKET
or
regulations.
gov,
your
e­
mail
address
will
be
automatically
captured
and
included
as
part
of
the
comment
that
is
placed
in
the
public
docket
and
made
available
on
the
Internet.
If
you
submit
an
electronic
comment,
EPA
recommends
that
you
include
your
name
and
other
contact
information
in
the
body
of
your
comment
and
with
any
disk
or
CD­
ROM
you
submit.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,

EPA
may
not
be
able
to
consider
your
comment.
Electronic
files
should
avoid
the
use
of
special
characters,
any
form
of
encryption,
and
be
free
of
any
defects
or
viruses.
For
additional
information
about
EPA's
public
docket
visit
EDOCKET
on­
line
or
see
the
Federal
Register
of
May
31,
2002
(
67
FR
38102).
For
additional
instructions
on
submitting
comments,
go
to
Unit
I.
C.
of
the
SUPPLEMENTARY
INFORMATION
section
of
this
document.

Docket:
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
4
EDOCKET
or
in
hard
copy
at
the
EPA
Docket
Center,
EPA
West
Building,
Room
B102,
1301
Constitution
Avenue,
N.
W.,
Washington,
D.
C.
This
Docket
Facility
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
Federal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
OSWER
Docket
is
(
202)
566­
0276.

If
you
would
like
to
file
a
request
for
a
public
hearing
on
this
proposed
rule,
please
submit
your
request
to
Ms.
Linda
Garczynski
at:
Office
of
Brownfields
Cleanup
and
Redevelopment
(
5105T),
U.
S.
Environmental
Protection
Agency,
1200
Pennsylvania
Avenue,
N.
W.,
Washington,

D.
C.
20460,
or
via
email
at
garczynski.
linda@
epa.
gov.

FOR
FURTHER
INFORMATION
CONTACT:
For
general
information
contact
the
RCRA/
Superfund/
EPCRA/
UST
Call
Center
at
(
800)
424­
9346
(
toll
free)
or
TDD
(
800)
553­

7672
(
hearing
impaired).
In
the
Washington,
D.
C.
metropolitan
area,
call
(
703)
412­
3323
or
TDD
(
703)
412­
9810.
For
detailed
information
on
specific
aspects
of
the
proposed
rule,
contact
Patricia
Overmeyer
of
EPA's
Office
of
Brownfields
Cleanup
and
Redevelopment
at
(
202)
566­

2774
or
at
overmeyer.
patricia@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Who
Potentially
May
be
Affected
by
Today's
Proposed
Rule?

If
promulgated
as
proposed,
this
regulation
may
affect
most
directly
those
persons
and
businesses
purchasing
commercial
property
or
any
property
that
will
be
used
for
commercial
purposes
and
who
may,
after
purchasing
the
property,
seek
to
claim
protection
from
CERCLA
liability
for
releases
or
threatened
releases
of
hazardous
substances.
Under
section
101(
35)(
B)
of
5
CERCLA,
as
amended
by
the
Small
Business
Liability
Relief
and
Brownfields
Redevelopment
Act
(
Pub.
L.
No.
107­
118,
115
stat.
2356,
"
the
Brownfields
Amendments")
such
persons
and
businesses
are
required
to
conduct
all
appropriate
inquiries
prior
to
or
on
the
date
in
which
the
property
is
acquired.
Prospective
property
owners
who
do
not
conduct
all
appropriate
inquiries
prior
to
obtaining
ownership
of
the
property
may
lose
their
ability
to
claim
protection
from
CERCLA
liability
as
an
innocent
landowner,
bona
fide
prospective
purchaser,
or
contiguous
property
owner.

In
addition,
today's
proposal
will
affect
any
party
who
receives
a
brownfields
grant
awarded
under
CERCLA
Section
104(
k)(
2)(
B)
and
uses
the
grant
money
to
conduct
site
characterization
or
assessment
activities.
This
includes
state,
local
and
tribal
governments
that
receive
brownfields
site
assessment
grants
for
the
purpose
of
conducting
site
characterization
and
assessment
activities.
Such
parties
are
required
under
CERCLA
Section
104(
k)(
2)(
B)(
ii)
to
conduct
such
activities
in
compliance
with
the
standards
and
practices
established
by
EPA
for
the
conduct
of
all
appropriate
inquiries.
EPA
notes
that
today's
rule
also
may
affect
other
parties
who
apply
for
brownfields
grants
under
the
provisions
of
Section
104(
k),
since
such
parties
may
have
to
qualify
as
a
bona
fide
prospective
purchaser
to
ensure
compliance
with
the
statutory
prohibitions
on
the
use
of
grant
funds
under
Section
104(
k)(
4)(
B)(
i).
Any
party
seeking
liability
protection
as
a
bona
fide
prospective
purchaser,
including
eligible
brownfields
grantees,
must
conduct
all
appropriate
inquiries
prior
to
acquiring
a
property.

The
background
document,
"
Economic
Impacts
Analysis
for
the
All
Appropriate
Inquiries
Proposed
Regulation,"
presents
a
comprehensive
analysis
of
all
potentially
impacted
entities.
This
6
document
is
available
in
the
docket
established
for
today's
proposed
rule.
A
summary
of
potentially
affected
businesses
is
provided
in
the
table
below.

Our
aim
in
the
table
below
is
to
provide
a
guide
for
readers
regarding
entities
likely
to
be
directly
regulated
or
indirectly
affected
by
this
action.
This
action,
however,
may
affect
other
entities
not
listed
in
the
table.
To
determine
whether
you
or
your
business
is
regulated
or
affected
by
this
action,
you
should
examine
the
proposed
regulatory
language
amending
CERCLA.
This
language
is
found
at
the
end
of
this
Federal
Register
notice.
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
section
entitled
FOR
FURTHER
INFORMATION
CONTACT.

Industry
Category
NAICS
Code
Manufacturing
31­
33
Wholesale
Trade
42
Retail
Trade
44­
45
Finance
and
Insurance
52
Real
Estate
531
Professional,
Scientific
and
Technical
Services
541
Accommodation
and
Food
Services
72
Repair
and
Maintenance
811
Personal
and
Laundry
Services
812
State,
Local
and
Tribal
Government
N/
A
B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?

1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
SFUND­
2004­
0001.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
today's
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
7
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.

Documents
in
the
official
public
docket
are
listed
in
the
index
list
in
EPA's
electronic
public
docket
and
comment
system,
EDOCKET.
Documents
may
be
available
either
electronically
or
in
hard
copy.
Electronic
documents
may
be
viewed
through
EDOCKET.
Hard
copy
documents
may
be
viewed
at
the
EPA
Docket
Center,
EPA
West,
Room
B102,
1301
Constitution
Avenue
NW,
Washington,
D.
C.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
Federal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
OSWER
Docket
is
(
202)
566­
0276.

2.
Electronic
Access.
You
may
access
the
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
"
Federal
Register"
listings
at
http://
www.
epa.
gov/
fedrgstr.

Comments
on
the
proposed
rule
can
be
submitted
through
the
federal
e­
rulemaking
portal,

http://
www.
regulations.
gov.

An
electronic
version
of
the
public
docket
also
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EDOCKET.
You
may
use
EDOCKET
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
public
docket,
and
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
"
search,"
then
key
in
the
appropriate
docket
identification
number.

Certain
types
of
information
will
not
be
placed
in
EDOCKET.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
8
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
Docket
materials
that
are
not
available
electronically
may
be
viewed
at
the
docket
facility
identified
in
Section
I.
B.
EPA
intends
to
work
toward
providing
electronic
access
to
all
of
the
publicly
available
docket
materials
through
EPA's
electronic
public
docket.

For
public
commenters,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,

whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
copyrighted
material,
will
be
available
in
the
public
docket.

Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.

3.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

a.
Submitting
Public
comments.
You
may
submit
comments
electronically,
by
mail,
or
through
hand
delivery/
courier,
as
explained
in
the
ADDRESSES
section
of
this
document.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
9
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
"
late."
EPA
is
not
required
to
consider
late
comments.

b.
Submitting
CBI.
Do
not
submit
information
that
you
consider
to
be
confidential
business
information
(
CBI)
electronically
through
EPA's
electronic
public
docket
or
by
e­
mail.

Send
or
deliver
information
identified
as
CBI
only
to
the
following
address:
CERCLA
CBI
Document
Control
Officer,
Office
of
Solid
Waste
and
Emergency
Response
(
5101T),
U.
S.
EPA,

1200
Pennsylvania
Avenue,
NW.,
Washington,
DC
20460,
Attention
Docket
ID
No.

SFUND­
2004­
0001.
You
may
claim
information
that
you
submit
to
EPA
as
CBI
by
marking
any
part
or
all
of
that
information
as
CBI
(
if
you
submit
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
CBI).
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR,
Part
2.

In
addition
to
one
complete
version
of
the
comment
that
includes
any
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket
and
EPA's
electronic
public
docket.
If
you
submit
the
copy
that
does
not
contain
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
clearly
that
it
does
not
contain
CBI.
Information
not
marked
as
CBI
will
be
included
in
the
public
docket
and
EPA's
electronic
public
docket
without
prior
notice.
If
you
have
any
questions
about
CBI
or
the
procedures
for
claiming
CBI,
please
consult
the
person
identified
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

c.
Tips
for
Preparing
Your
Comments.
You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:
10
iii.
Identify
the
rulemaking
by
docket
number
and
other
identifying
information
(
e.
g.,

subject
heading,
Federal
Register
date
and
page
number)

iv.
Explain
your
views
as
clearly
as
possible.

v.
Explain
why
you
agree
or
disagree;
suggest
alternatives
and
substitute
language
for
your
requested
changes.

vi.
Describe
any
assumptions
and
provide
any
technical
information
and/
or
data
that
you
used
to
support
your
views.

vii.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate
in
sufficient
detail
to
allow
for
it
to
be
reproduced.

viii.
Provide
specific
examples
to
illustrate
your
concerns
and
suggest
alternative.

ix.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

Contents
of
This
Proposed
Rule
III.
Statutory
Authority
IV.
Background
A.
What
is
the
Intent
of
Today's
Proposed
Rule?

B.
What
is
"
All
Appropriate
Inquiries?"

C.
What
are
the
Current
Standards
for
All
Appropriate
Inquiries?

D.
What
are
the
Liability
Protections
Established
Under
the
Brownfields
Amendments?

E.
What
Criteria
Did
Congress
Establish
for
the
All
Appropriate
Inquiries
Standard?

F.
How
Did
EPA
Go
about
Developing
the
Proposed
Rule?

G.
What
is
Negotiated
Rulemaking?
11
H.
What
was
the
Process
that
EPA
Followed
in
Establishing
and
Conducting
the
Negotiated
Rulemaking
Committee?

I.
What
are
the
Benefits
of
Negotiated
Rulemaking?

J.
Who
Was
Represented
on
the
Negotiated
Rulemaking
Committee?

III.
Detailed
Description
of
Today's
Proposed
Rule
A.
What
is
the
Purpose
and
Scope
of
the
Proposed
Rule?

B.
To
Whom
is
the
Rule
Applicable?

C.
Does
the
Proposed
Rule
Include
New
Reporting
or
Disclosure
Obligations?

D.
What
are
the
Proposed
Qualifications
for
an
Environmental
Professional?

E.
References
F.
What
is
Included
in
"
All
Appropriate
Inquiries?"

G.
What
are
the
Proposed
Requirements
for
Interviewing
Past
and
Present
Owners,

Operators,
and
Occupants?

H.
What
are
the
Proposed
Requirements
for
Reviews
of
Historical
Sources
of
Information?

I.
What
are
the
Proposed
Requirements
for
Searching
for
Recorded
Environmental
Cleanup
Liens?

J.
What
are
the
Proposed
Requirements
for
Reviewing
Federal,
State,
Tribal,
and
Local
Government
Records?

K.
What
are
the
Proposed
Requirements
for
Visual
Inspections
of
the
Subject
Property
and
Adjoining
Properties?
12
L.
What
are
the
Proposed
Requirements
for
the
Inclusion
of
Specialized
Knowledge
or
Experience
on
the
Part
of
the
"
Defendant?"

M.
What
are
the
Proposed
Requirements
for
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property,
if
the
Property
was
not
Contaminated?

N.
What
are
the
Proposed
Requirements
for
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property?

O.
What
are
the
Proposed
Requirements
for
"
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?"

IV.
Requests
for
Public
Comments
V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Risks
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,

Distribution
or
Use
13
I.
National
Technology
Transfer
Advancement
Act
J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
I.
Statutory
Authority
These
regulations
are
proposed
under
the
authority
of
Section
101(
35)(
B)
of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
of
1980
(
42
U.
S.
C.

9601),
as
amended,
most
importantly
by
the
Small
Business
Liability
Relief
and
Brownfields
Redevelopment
Act.

II.
Background
A.
What
is
the
Intent
of
Today's
Proposed
Rule?

The
intent
of
today's
proposed
rule
is
to
propose
regulations
setting
federal
standards
and
practices
for
the
conduct
of
"
all
appropriate
inquiries."
This
regulatory
action
was
initiated
in
response
to
legislative
amendments
to
the
Comprehensive
Environmental
Response,

Compensation,
and
Liability
Act
(
CERCLA).
On
January
11,
2002,
President
Bush
signed
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Pub.
L.
No.
107­
118,
115
stat.
2356,
"
the
Brownfields
Amendments").
The
Brownfields
Amendments
amend
CERCLA
by
providing
funds
to
assess
and
clean
up
brownfields
sites,
clarifying
CERCLA
liability
provisions
for
certain
landowners,
and
providing
funding
to
enhance
state
and
tribal
clean
up
programs.

Today's
regulatory
action
proposes
standards
and
practices
for
the
conduct
of
"
all
appropriate
inquiries,"
a
key
provision
of
the
Brownfields
Amendments.
Subtitle
B
of
Title
II
of
the
Brownfields
Amendments
revises
CERCLA
Section
101(
35),
clarifying
the
requirements
14
necessary
to
establish
the
innocent
landowner
defense.
In
addition,
the
Brownfields
Amendments
add
protections
from
CERCLA
liability
for
bona
fide
prospective
purchasers
and
contiguous
property
owners
who
meet
certain
statutory
requirements.

Each
of
the
CERCLA
liability
provisions
for
innocent
landowners,
bona
fide
prospective
purchasers,
and
contiguous
property
owners,
requires
that,
among
other
requirements,
persons
claiming
the
liability
protections
conduct
all
appropriate
inquiries
into
prior
ownership
and
use
of
a
property
prior
to
or
at
the
time
at
which
a
person
acquires
a
property.
The
law
requires
EPA
to
develop
regulations
establishing
standards
and
practices
for
how
to
conduct
all
appropriate
inquiries
and
promulgate
the
standards
within
two
years
of
enactment
of
the
Amendments.

Congress
included
in
the
Brownfields
Amendments
a
list
of
criteria
that
the
Agency
must
address
in
the
regulations
establishing
standards
and
practices
for
conducting
all
appropriate
inquiries
§
101(
35)(
2)(
B)(
ii)
and
(
iii).
The
Brownfields
Amendments
also
require
that
parties
receiving
a
federal
brownfields
grant
awarded
under
CERCLA
Section
104(
k)(
2)(
B)
to
conduct
site
characterizations
and
assessments
must
conduct
these
activities
in
accordance
with
the
standards
and
practices
for
all
appropriate
inquiries.

The
regulations
proposed
today
only
address
the
all
appropriate
inquiries
provisions
of
CERCLA
Sections
101(
35)(
B)(
i)(
I)
and
101(
35)(
B)(
ii)
and
(
iii).
Today's
proposed
rule
does
not
address
the
requirements
of
CERCLA
Section
101(
35)(
B)(
i)(
I)
for
what
constitutes
"
reasonable
steps."
15
B.
What
is
"
All
Appropriate
Inquiries?"

An
essential
step
in
real
property
transactions
is
evaluating
a
property
for
potential
environmental
contamination
and
assessing
potential
liability
for
contamination
present
at
the
property.
The
process
for
assessing
properties
for
the
presence
of
environmental
contamination
often
is
referred
to
as
"
environmental
due
diligence,"
or
"
environmental
site
assessment."
The
Comprehensive
Environmental
Response
Compensation
and
Liability
Act
(
CERCLA)
or
Superfund,
provides
for
a
similar,
but
legally
distinct,
process
referred
to
as
"
all
appropriate
inquiries."

Under
CERCLA,
persons
may
be
held
strictly
liable
for
cleaning
up
hazardous
substances
at
properties
that
they
either
currently
own
or
operate
or
owned
or
operated
in
the
past.
Strict
liability
under
CERCLA
means
that
liability
for
environmental
contamination
could
be
assigned
based
solely
on
property
ownership.

In
1986,
the
Superfund
Amendments
and
Reauthorization
Act
(
Pub.
L.
No.
99­
499,
100
stat.
1613,
"
SARA")
amended
CERCLA
by
creating
an
"
innocent
landowner"
defense
to
CERCLA
liability.
The
new
Section
101(
35)(
B)
of
CERCLA
provided
a
defense
to
CERCLA
liability,
for
those
persons
who
could
demonstrate,
among
other
requirements,
that
they
"
did
not
know
and
had
no
reason
to
know"
prior
to
purchasing
a
property
that
any
hazardous
substance
that
is
the
subject
of
a
release
or
threatened
release
was
disposed
of
on,
in,
or
at
the
property.

Such
persons,
to
demonstrate
that
they
had
"
no
reason
to
know"
must
have
undertaken,
prior
to,

or
at
the
time
of
acquisition
of
the
property,
"
all
appropriate
inquiries"
into
the
previous
ownership
and
uses
of
the
property
consistent
with
good
commercial
or
customary
practice.
The
2002
Brownfields
Amendments
added
potential
liability
protections
for
"
contiguous
property
16
owners"
and
"
bona
fide
prospective
purchasers"
who
also
must
demonstrate
they
conducted
all
appropriate
inquiries,
among
other
requirements,
to
benefit
from
the
liability
protection.

C.
What
are
the
Current
Standards
for
All
Appropriate
Inquiries?

As
part
of
the
Brownfields
Amendments
to
CERCLA,
Congress
established
interim
standards
for
the
conduct
of
all
appropriate
inquiries.
The
federal
interim
standards
established
by
Congress
became
effective
on
January
11,
2002.
In
the
case
of
properties
purchased
after
May
31,
1997,
the
interim
standards
include
the
procedures
of
the
American
Society
for
Testing
and
Materials
(
ASTM)
Standard
E1527­
97
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessment:
Phase
1
Environmental
Site
Assessment
Process").
In
the
case
of
persons
who
purchased
property
prior
to
May
31,
1997
and
who
are
seeking
to
establish
an
innocent
landowner
defense
or
qualify
as
a
contiguous
property
owner,
the
interim
standards
require
that
such
persons
must
establish,
among
other
statutory
requirements,
that
they
did
not
know
and
had
no
reason
to
know
of
releases
or
threatened
releases
to
the
property
before
the
date
they
acquired
the
property.
To
establish
they
did
not
know
and
had
no
reason
to
know
of
releases
or
threatened
releases,
persons
who
purchased
property
prior
to
May
31,
1997
must
demonstrate
that
they
carried
out
all
appropriate
inquiries
into
the
previous
ownership
and
uses
of
the
property
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices.

In
the
case
of
property
acquired
by
a
non­
governmental
entity
or
non­
commercial
entity
for
residential
or
other
similar
uses,
the
current
interim
standards
for
all
appropriate
inquiries
may
not
be
applicable.
For
those
cases,
the
Brownfields
Amendments
to
CERCLA
establish
that
a
"
facility
inspection
and
title
search
that
reveal
no
basis
for
further
investigation
shall
be
considered
17
to
satisfy
the
requirements"
for
all
appropriate
inquiries.
In
addition,
such
properties
are
not
within
the
scope
of
today's
proposed
rule.

The
interim
standards
remain
in
effect
until
EPA
promulgates
federal
regulations
establishing
standards
and
practices
for
conducting
all
appropriate
inquiries.

On
May
9,
2003,
EPA
published
a
final
rule
(
68
FR
24888)
clarifying
that
for
the
purposes
of
achieving
the
all
appropriate
inquiries
standards
of
CERCLA
Section
101(
35)(
B),
and
until
the
Agency
promulgates
regulations
implementing
standards
for
all
appropriate
inquiries,
the
procedures
persons
who
purchase
property
on
or
after
May
31,
1997
may
use
include
either
the
procedures
provided
in
ASTM
E1527­
2000,
entitled
"
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
Process,"
or
the
earlier
standard
cited
by
Congress
in
the
Brownfields
amendments,
ASTM
E1527­
97.

Today's
notice
is
a
proposed
rule
and
as
such
has
no
effect
upon
the
current
interim
standards
for
all
appropriate
inquiries
established
by
Congress
in
the
Brownfields
Amendments
and
clarified
by
EPA
in
the
May
9,
2003
final
rule.
However,
once
the
Agency
promulgates
a
final
rule
establishing
federal
regulations
containing
the
standards
and
practices
for
conducting
all
appropriate
inquiries,
the
interim
standard
will
no
longer
be
the
operative
standard
for
conducting
all
appropriate
inquiries.
Following
the
effective
date
of
a
new
final
regulation,
the
standards
and
practices
included
as
the
final
regulation
will
replace
the
current
interim
standards
for
all
appropriate
inquiries.

The
National
Technology
Transfer
and
Advancement
Act
(
NTTAA),
directs
agencies
to
use
technical
standards
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies
18
(
unless
their
use
would
be
inconsistent
with
applicable
law
or
otherwise
impractical).
We
considered
ASTM
E1527­
2000,
for
use
in
this
rule
and
determined
that
the
standard
is
inconsistent
with
applicable
law
because
it
does
not
meet
the
statutory
criteria
necessary
to
achieve
the
purpose
of
the
rule.
Section
V.
I
of
today's
proposed
rule
provides
additional
detail
on
the
basis
for
our
interpretation
with
respect
to
this
alternative.
We
invite
public
comment
on
our
determination
that
the
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
Standard
is
inconsistent
with
applicable
law.

D.
What
are
the
Liability
Protections
Established
Under
the
Brownfields
Amendments?

The
Brownfields
Amendments
provide
important
liability
protections
for
landowners
who
qualify
as
contiguous
property
owners,
bona
fide
prospective
purchasers,
or
innocent
landowners.

To
meet
the
statutory
requirements
for
any
of
these
landowner
liability
protections,
a
landowner
must
meet
certain
threshold
requirements
and
satisfy
certain
continuing
obligations.
To
qualify
as
a
bona
fide
prospective
purchaser,
contiguous
property
owner,
or
innocent
landowner,
a
person
must
perform
"
all
appropriate
inquiries"
before
acquiring
the
property.
Bona
fide
prospective
purchasers
and
contiguous
property
owners
also
must
demonstrate
that
they
are
not
potentially
liable
or
affiliated
with
any
other
person
that
is
potentially
liable
for
response
costs
at
the
property.
In
the
case
of
contiguous
property
owners,
the
landowner
claiming
to
be
a
contiguous
property
owner
also
must
demonstrate
that
he
did
not
cause,
contribute,
or
consent
to
any
release
or
threatened
release
of
hazardous
substances.
To
meet
the
statutory
requirements
for
a
bona
fide
prospective
purchaser,
a
property
owner
must
have
acquired
a
property
subsequent
to
any
disposal
activities
involving
hazardous
substances
at
the
property.
19
Continuing
obligations
required
under
the
statute
include
complying
with
land
use
restrictions
and
not
impeding
the
effectiveness
or
integrity
of
institutional
controls;
taking
"
reasonable
steps"
with
respect
to
hazardous
substances
affecting
a
landowner's
property
to
prevent
releases;
providing
cooperation,
assistance
and
access
to
EPA,
a
state,
or
other
party
conducting
response
actions
or
natural
resource
restoration
at
the
property;
complying
with
CERCLA
information
requests
and
administrative
subpoenas;
and
providing
legally
required
notices.
For
a
more
detailed
discussion
of
these
threshold
and
continuing
requirements
please
see
EPA,
Interim
Guidance
Regarding
Criteria
Landowners
Must
Meet
in
Order
to
Quality
for
Bona
Fide
Prospective
Purchaser,
Contiguous
Property
Owner,
or
Innocent
Landowner
Limitations
on
CERCLA
Liability
(
Common
Elements,
2003).
A
copy
of
this
document
is
available
in
the
docket
for
today's
proposed
rule.

1.
Bona
fide
prospective
purchaser
The
Brownfields
Amendments
added
the
bona
fide
prospective
purchaser
provision
at
CERCLA
Section
107(
r).
The
provision
provides
protection
from
CERCLA
liability,
and
limits
EPA's
recourse
for
unrecovered
response
costs
to
a
lien
on
property
for
the
increase
in
fair
market
value
attributable
to
EPA's
response
action.
To
meet
the
statutory
requirements
for
a
bona
fide
prospective
purchaser,
a
person
must
meet
the
requirements
set
forth
in
CERCLA
Section
101(
40).
A
bona
fide
prospective
purchaser
must
have
bought
property
after
January
11,

2002
(
the
date
of
enactment
of
the
Brownfields
Amendments).
A
bona
fide
prospective
purchaser
may
purchase
property
with
knowledge
of
contamination
after
performing
all
appropriate
inquiries,
provided
the
property
owner
meets
or
complies
with
all
of
the
other
statutory
20
requirements
set
forth
in
CERCLA
Section
101(
40).
Conducting
all
appropriate
inquiries
alone
does
not
provide
a
landowner
with
protection
against
CERCLA
liability.
Landowners
who
want
to
qualify
as
bona
fide
prospective
purchasers
must
comply
with
all
of
the
statutory
requirements.

The
statutory
requirements
include,
without
limitation,
that
the
landowner
must:

°
have
acquired
a
property
after
all
disposal
activities
involving
hazardous
substances
at
the
property;

°
provide
all
legally
required
notices
with
respect
to
the
discovery
or
release
of
any
hazardous
substances
at
the
property;

°
exercise
appropriate
care
by
taking
reasonable
steps
to
stop
continuing
releases,
prevent
any
threatened
future
release,
and
prevent
or
limit
human,
environmental,
or
natural
resources
exposure
to
any
previously
released
hazardous
substance;

°
provide
full
cooperation,
assistance,
and
access
to
persons
that
are
authorized
to
conduct
response
actions
or
natural
resource
restorations;

°
comply
with
land
use
restrictions
established
or
relied
on
in
connection
with
a
response
action;

°
not
impede
the
effectiveness
or
integrity
of
any
institutional
controls;

°
comply
with
any
CERCLA
request
for
information
or
administrative
subpoena;
and
°
not
be
potentially
liable,
or
affiliated
with
any
other
person
who
is
potentially
liable
for
response
costs
for
addressing
releases
at
the
property.

Persons
claiming
to
be
bona
fide
prospective
purchasers
should
keep
in
mind
that
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in
or
to
a
property
during
the
conduct
of
all
appropriate
inquiries
does
not
21
relieve
a
landowner
from
complying
with
the
other
post­
acquisition
statutory
requirements
for
obtaining
the
liability
protections.
Landowners
must
comply
with
all
the
statutory
requirements
to
obtain
the
liability
protection.
For
example,
an
inability
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
responsibilities
under
the
statute
to
take
reasonable
steps
to
stop
a
release,
prevent
a
threatened
release,
and
prevent
exposure
to
a
release
or
threatened
release.
None
of
the
other
statutory
requirements
for
the
bona
fide
prospective
purchaser
liability
protection
is
contingent
upon
the
results
of
the
conduct
of
all
appropriate
inquiries.

2.
Contiguous
property
owner
The
Brownfields
Amendments
added
a
new
contiguous
property
owner
provision
at
CERCLA
Section
107(
q).
This
provision
excludes
from
the
definition
of
"
owner"
or
"
operator"

under
CERCLA
Section
107(
a)(
1)
and
(
2)
a
person
who
owns
property
that
is
"
contiguous
to,
or
otherwise
similarly
situated
with
respect
to,
and
that
is
or
may
be
contaminated
by
a
release
or
threatened
release
of
hazardous
substances
from"
property
owned
by
someone
else.
To
qualify
as
a
contiguous
property
owner,
a
landowner
must
have
no
knowledge
of
contamination
prior
to
acquisition
and
meet
all
of
the
criteria
set
forth
in
CERCLA
Section
107(
q)(
1)(
A),
which
include,

without
limitation:

°
not
causing,
contributing,
or
consenting
to
the
release
or
threatened
release;

°
not
being
potentially
liable
nor
affiliated
with
any
other
person
who
is
potentially
liable
for
response
costs
at
the
property;
22
°
taking
reasonable
steps
to
stop
continuing
releases,
prevent
any
threatened
release,
and
prevent
or
limit
human,
environmental,
or
natural
resource
exposure
to
any
hazardous
substances
released
on
or
from
the
landowner's
property;

°
providing
full
cooperation,
assistance,
and
access
to
persons
that
are
authorized
to
conduct
response
actions
or
natural
resource
restorations;

°
complying
with
land
use
restrictions
established
or
relied
on
in
connection
with
a
response
action;

°
not
impeding
the
effectiveness
or
integrity
of
any
institutional
controls;

°
complying
with
any
CERCLA
request
for
information
or
administrative
subpoena;

°
providing
all
legally
required
notices
with
respect
to
discovery
or
release
of
any
hazardous
substances
at
the
property.

The
contiguous
property
owner
liability
protection
"
protects
parties
that
are
essentially
victims
of
pollution
incidents
caused
by
their
neighbor's
actions."
S.
Rep.
No.
107­
2,
at
10
(
2001).
Contiguous
property
owners
must
perform
all
appropriate
inquiries
prior
to
purchasing
property.
However,
performing
all
appropriate
inquiries
in
accordance
with
the
regulatory
requirements
alone
is
not
sufficient
to
assert
the
liability
protections
afforded
under
CERCLA.

Property
owners
must
fully
comply
with
all
of
the
statutory
requirements
to
be
afforded
the
contiguous
property
owner
liability
protection.
Persons
who
know,
or
have
reason
to
know,
that
the
property
is
or
could
be
contaminated
prior
to
purchasing
a
property
cannot
qualify
for
the
liability
protection
as
a
contiguous
property
owner,
but
may
be
entitled
to
bona
fide
prospective
purchaser
status.
23
Persons
claiming
to
be
contiguous
property
owners
should
keep
in
mind
that
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in
or
to
a
property
during
the
conduct
of
all
appropriate
inquiries,
does
not
relieve
a
landowner
from
complying
with
the
other
statutory
requirements
for
obtaining
the
contiguous
landowner
liability
limitation.
Landowners
must
comply
with
all
the
statutory
requirements
to
qualify
for
the
liability
protections.
For
example,
an
inability
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
responsibilities
under
the
statute
to
take
reasonable
steps
to
stop
the
release,
prevent
a
threatened
release,
and
prevent
exposure
to
the
release
or
threatened
release.
None
of
the
other
statutory
requirements
for
the
contiguous
property
owner
liability
protection
is
contingent
upon
the
results
of
the
conduct
of
all
appropriate
inquiries.

3.
Innocent
landowner
The
Brownfields
Amendments
also
clarify
the
innocent
landowner
affirmative
defense.
To
qualify
as
an
innocent
landowner,
a
person
must
conduct
all
appropriate
inquiries
and
meet
all
of
the
statutory
requirements.
The
requirements
include,
without
limitation:

°
having
no
reason
to
know
that
any
hazardous
substance
which
is
the
subject
of
a
release
or
threatened
release
was
disposed
of
on,
in,
or
at
the
facility;

°
providing
full
cooperation,
assistance
and
access
to
persons
authorized
to
conduct
response
actions
at
the
property;

°
complying
with
any
land
use
restrictions
and
not
impeding
the
effectiveness
or
integrity
of
any
institutional
controls;
24
°
taking
reasonable
steps
to
stop
continuing
releases,
prevent
any
threatened
release,
and
prevent
or
limit
human,
environmental,
or
natural
resource
exposure
to
any
hazardous
substances
released
on
or
from
the
landowner's
property;

To
succeed
in
an
innocent
landowner
liability
defense,
a
property
owner
must
demonstrate
compliance
with
CERCLA
Section
107(
b)(
3)
as
well.
Such
persons
must
establish,
by
a
preponderance
of
the
evidence:

°
that
the
act
or
omission
that
caused
the
release
or
threat
of
release
of
hazardous
substances
and
the
resulting
damages
were
caused
by
a
third
party
with
whom
the
person
does
not
have
employment,
agency,
or
a
contractual
relationship;

°
the
person
exercised
due
care
with
respect
to
the
hazardous
substance
concerned,
taking
into
consideration
the
characteristics
of
such
hazardous
substance,
in
light
of
all
relevant
facts
and
circumstances;

°
took
precautions
against
foreseeable
acts
or
omissions
of
any
such
third
party
and
the
consequences
that
could
foreseeable
result
from
such
acts
or
omissions.

Like
contiguous
property
owners,
innocent
landowners
must
perform
all
appropriate
inquiries
prior
to
acquiring
a
property
and
cannot
know,
or
have
reason
to
know,
of
contamination
to
qualify
for
this
landowner
liability
protection.
Persons
claiming
to
be
innocent
landowners
also
should
keep
in
mind
that
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in
or
to
a
property
during
the
conduct
of
all
appropriate
inquiries,
does
not
relieve
or
exempt
a
landowner
from
complying
with
the
other
statutory
requirements
for
making
the
innocent
landowner
defense.
Landowners
must
25
comply
with
all
the
statutory
requirements
to
obtain
the
defense.
For
example,
an
inability
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
responsibilities
under
the
statute
to
take
reasonable
steps
to
stop
the
release,
prevent
a
threatened
release,
and
prevent
exposure
to
the
release
or
threatened
release.

None
of
the
other
statutory
requirements
for
the
innocent
landowner
defense
is
contingent
upon
the
results
of
the
conduct
of
all
appropriate
inquiries.

E.
What
Criteria
Did
Congress
Establish
for
the
All
Appropriate
Inquiries
Standard?

Congress
included
in
the
Brownfields
Amendments
a
list
of
criteria
that
the
Agency
must
include
in
the
regulations
establishing
standards
and
practices
for
conducting
all
appropriate
inquiries.
These
criteria
are
set
forth
in
CERCLA
Section
101(
35)(
2)(
B)(
ii)
and
include:

°
The
results
of
an
inquiry
by
an
environmental
professional.

°
Interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
for
the
purpose
of
gathering
information
regarding
the
potential
for
contamination
at
the
facility.

°
Reviews
of
historical
sources,
such
as
chain
of
title
documents,
aerial
photographs,

building
department
records,
and
land
use
records,
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.

°
Searches
for
recorded
environmental
cleanup
liens
against
the
facility
that
are
filed
under
federal,
state,
or
local
law.

°
Reviews
of
federal,
state,
and
local
government
records,
waste
disposal
records,

underground
storage
tank
records,
and
hazardous
waste
handling,
generation,
treatment,

disposal,
and
spill
records,
concerning
contamination
at
or
near
the
facility.
26
°
Visual
inspections
of
the
facility
and
of
adjoining
properties.

°
Specialized
knowledge
or
experience
on
the
part
of
the
defendant.

°
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated.

°
Commonly
known
or
reasonably
ascertainable
information
about
the
property.

°
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.

In
addition,
Congress
instructed
EPA,
in
the
Brownfields
Amendments
to
develop
regulations
establishing
standards
and
practices
for
conducting
all
appropriate
inquiries
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices.

K.
How
Did
EPA
Go
About
Developing
the
Proposed
Rule?

Consistent
with
the
Negotiated
Rulemaking
Act
of
1996,
5
U.
S.
C.
561
et
seq
(
The
Negotiated
Rulemaking
Act),
EPA
decided
to
use
the
negotiated
rulemaking
process
to
develop
the
proposed
federal
standards
for
conducting
all
appropriate
inquiries.
The
most
important
reason
for
using
the
regulatory
negotiation
process
for
developing
the
proposed
federal
standards
is
that
all
stakeholders,
when
consulted,
strongly
supported
a
consensus­
based
negotiated
rulemaking
effort.
In
addition,
the
Agency
determined
that
a
negotiated
rulemaking
committee
composed
of
stakeholders
familiar
with
good
commercial
and
customary
standards
and
practices,

as
well
as
the
technical,
scientific,
and
environmental
policy
issues
relevant
to
environmental
due
diligence,
would
provide
great
benefit
to
the
Agency
in
its
attempt
to
fulfill
the
Congressional
mandate.
EPA
also
believed
that
a
regulatory
negotiation
process
would
be
less
adversarial
than
27
if
the
Agency
were
to
develop
a
proposed
rule
using
its
internal
regulatory
development
process
and
that
a
regulatory
negotiation
could
result
in
a
proposed
rule
that
would
effectively
reflect
Congressional
intent.

L.
What
is
Negotiated
Rulemaking?

Using
negotiated
rulemaking
to
develop
the
proposed
rule
is
fundamentally
different
than
the
Agency's
internal
rulemaking
development
process.
Negotiated
rulemaking
is
a
process
in
which
a
proposed
rule
is
developed
by
a
committee
composed
of
representatives
of
those
interests
that
will
be
significantly
affected
by
the
rule.
The
process
is
started
by
the
Agency's
careful
identification
of
the
interests
potentially
affected
by
the
rulemaking
under
consideration.
To
help
in
this
identification
process,
the
Agency
publishes
a
notice
in
the
Federal
Register,
that
identifies
a
preliminary
list
of
potentially
affected
interests
and
requests
public
comment
on
that
list.

Following
receipt
of
the
comments,
the
Agency
establishes
a
formal
advisory
committee
under
the
Federal
Advisory
Committee
Act
(
FACA).
A
balanced
membership
representing
these
various
interests
is
invited
by
the
Agency
to
participate
in
the
advisory
committee.
Representation
on
the
committee
may
be
direct,
that
is,
each
member
represents
a
specific
interest,
or
may
be
indirect,

through
coalitions
of
parties
formed
for
this
purpose.
The
Agency
is
a
member
of
the
committee
representing
the
interests
of
all
of
the
federal
government.

Meetings
of
the
committee
are
announced
in
the
Federal
Register
and
are
open
to
observation
by
members
of
the
public.
Decisions
of
the
committee
are
made
by
consensus,
which
generally
means
an
agreement
of
all
committee
members
that
they
can
accept
the
provisions
of
the
proposed
rule
when
taken
as
a
whole
package.
A
neutral
professional,
or
facilitator,
impartially
28
assists
the
negotiated
rulemaking
committee
by
applying
proven
consensus
building
techniques
to
the
committee's
activities.
This
professional
facilitator
serves
several
roles,
including
convening
the
process,
facilitating
meetings
and
mediating
committee
negotiations.

The
negotiated
rulemaking
process
involves
a
mutual
education
of
the
negotiating
parties
by
each
other
on
the
practical
concerns
about
the
impact
of
each
approach
considered
by
the
committee.
All
committee
members
participate
in
seeking
to
reach
a
consensus
that
resolves
the
concerns
of
the
other
members,
rather
than
leaving
it
up
to
EPA
to
bridge
different
points
of
view.
A
key
principle
of
negotiated
rulemaking
is
that
agreement
is
by
consensus
of
all
the
members.
Thus,
no
one
interest
or
group
of
interests
is
able
to
control
the
process.
The
Negotiated
Rulemaking
Act
defines
consensus
as
"
the
unanimous
concurrence
among
interests
represented
on
a
negotiated
rulemaking
committee,
unless
the
committee
itself
unanimously
agrees
to
use
a
different
definition."
5
U.
S.
C.
562(
2).

When
a
regulatory
negotiation
advisory
committee
reaches
consensus
on
the
provisions
of
a
proposed
rule,
the
Agency
generally
uses
such
consensus
language
as
the
basis
of
its
proposed
rule,
which
is
published
in
the
Federal
Register.
This
provides
the
required
public
notice
and
allows
for
a
public
comment
period.
Committee
members
agree
to
support
the
proposed
rule
as
published
if
there
are
no
substantive
changes
from
the
consensus
provisions.
Other
interested
parties
retain
their
rights
to
comment,
participate
in
an
informal
hearing
(
if
requested)
and
judicial
review.
EPA
anticipates,
however,
that
the
pre­
proposal
consensus
agreed
upon
by
a
negotiated
rulemaking
committee
will
effectively
address
most
major
issues
prior
to
publication
of
a
proposed
rule.
29
M.
What
was
the
Process
that
EPA
Followed
in
Establishing
and
Conducting
the
Negotiated
Rulemaking
Committee?

During
the
fall
of
2002,
EPA
initiated
the
negotiated
rulemaking
process
by
identifying
appropriate
stakeholder
groups
and
soliciting
advice
and
input
from
experienced
public
and
private
sector
users
of
similar
standards.
EPA
retained
an
expert
facilitator
to
contact
parties
potentially
affected
by
the
all
appropriate
inquiries
rule
to
determine
whether
or
not
stakeholders
were
interested
in
participating
in
a
negotiated
rulemaking
process
and
determine
the
potential
for
stakeholder
issues
to
be
successfully
addressed
through
a
regulatory
negotiation.
Following
an
evaluation
of
stakeholder
interest
and
input,
the
facilitator
found
that
there
was
sufficient
enthusiasm
among
stakeholders
for
a
negotiated
rulemaking
process
and
almost
all
stakeholders
that
EPA
identified
and
the
facilitator
interviewed
expressed
a
belief
that
potential
issues
and
differences
between
interested
parties
could
be
successfully
addressed
and
negotiated
through
the
regulatory
negotiation
process.
A
description
of
the
issues
raised
by
identified
stakeholders
and
a
list
of
interested
stakeholders,
as
well
as
the
findings
of
the
facilitator
are
contained
in
the
final
report
entitled
Convening
Assessment
Report
on
the
Feasibility
of
a
Negotiated
Rulemaking
Process
to
Develop
the
All
Appropriate
Inquiry
Standard
Required
under
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act.
A
copy
of
this
final
report
is
included
in
the
regulatory
docket
for
today's
notice.

Following
the
convening
process,
the
Agency
determined
that
the
use
of
a
regulatory
negotiation
process
in
this
matter
was
appropriate.
The
Agency
then
identified
stakeholders
and
interest
groups
who
potentially
would
be
affected
by
the
rulemaking
under
consideration.
After
identifying
an
initial
list
of
potential
interests,
the
Agency
published
a
"
Notice
of
Intent
to
30
Negotiate"
in
the
Federal
Register
on
March
6,
2003
(
68
FR
10675)
which
identified
the
Agency's
preliminary
list
of
interests
and
requested
public
comment
on
that
list
of
potential
interests
or
stakeholder
groups
to
include
in
the
negotiated
rulemaking
process.
Following
receipt
of
public
comments
in
response
to
that
notice
and
the
conduct
of
a
public
hearing
to
obtain
public
input,
the
Agency
established
a
negotiated
rulemaking
advisory
committee
under
the
provisions
of
the
Federal
Advisory
Committee
Act
(
FACA).
The
advisory
committee
included
a
balanced
membership
representing
the
various
interests
identified
either
by
EPA
or
by
public
commenters
as
having
a
significant
stake
in
the
outcome
of
the
rulemaking.
The
Agency
then
published
in
the
Federal
Register
a
notice
announcing
the
establishment
of
the
Negotiated
Rulemaking
Committee
on
All
Appropriate
Inquiries
(
the
Negotiated
Rulemaking
Committee)
on
April
7,

2003
(
68
FR
16747).

The
Agency
developed
a
charter
for
the
Negotiated
Rulemaking
Committee
defining
the
purpose,
scope
and
duration
of
the
committee
in
accordance
with
the
provisions
of
the
FACA.

The
primary
purpose
of
the
committee
was
to
negotiate
a
consensus
on
the
terms
of
a
proposed
rule
setting
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries.
The
committee
was
composed
of
25
members
and
each
member
of
the
committee
represented
a
specific
stakeholder
interest.
EPA
had
one
seat
on
the
committee.
The
Agency
member
on
the
committee
represented
the
Federal
government's
own
set
of
interests.
A
neutral
facilitator
assisted
the
Negotiated
Rulemaking
Committee
by
applying
proven
consensus
building
techniques
to
the
Committee's
activities.
This
facilitator
served
several
roles
including
convening
the
process,

facilitating
meeting
discussions,
and
mediating
Committee
negotiations.
31
The
Agency's
negotiated
rulemaking
committee
for
this
proposed
rule
was
formed
and
operated
in
full
compliance
with
the
requirements
of
the
Federal
Advisory
Committee
Act
(
FACA)
and
in
a
manner
consistent
with
the
requirements
for
the
Negotiated
Rulemaking
Act
of
1990.
Committee
members
established
formal
ground
rules
for
the
conduct
of
their
negotiations.

Among
other
things,
the
ground
rules
provide
that
Committee
decisions
would
be
made
by
consensus,
Committee
agreements
would
be
tentative
until
the
Committee
reached
final
consensus
on
regulatory
language,
and
Committee
members
could
not
withdraw
their
consensus
once
a
final
consensus
was
reached
by
the
Committee.
All
meetings
of
the
Negotiated
Rulemaking
Committee
were
open
public
meetings.
Members
of
the
public,
including
representatives
from
organizations
not
represented
on
the
Committee
were
welcomed
to
observe
Committee
discussions
during
each
meeting.
All
written
products
developed
by
the
Committee
were
made
available
to
the
public
on
EPA's
website
and
in
the
Agency's
rulemaking
docket.
Time
was
set
aside
during
each
meeting
of
the
Committee
to
hear
comments
from
the
public.
Members
of
the
public
also
had
the
opportunity
to
provide
written
comments
to
the
negotiated
rulemaking
committee
on
the
topics
considered
and
discussed
by
the
Committee.
The
openness
of
the
negotiated
rulemaking
process
allowed
for
continued
review
of
the
Committee
proceedings
by
the
public
and
allowed
the
Committee
to
give
full
consideration
to
input
offered
by
the
public
during
its
deliberations.

The
Negotiated
Rulemaking
Committee
for
All
Appropriate
Inquiries
conducted
six
multiple­
day
meetings
over
the
course
of
an
eight­
month
period,
beginning
in
April
2003.
The
Committee
reached
consensus
on
the
provisions
of
a
proposed
rule
during
its
meeting
in
November
2003.
The
consensus
of
all
Committee
members
was
confirmed
in
December
2003
32
through
approval
of
the
facilitator's
summary
of
that
meeting,
including
the
text
of
the
proposed
rule.
The
Agency,
consistent
with
the
intent
of
the
Negotiated
Rulemaking
Act
of
1990
and
in
compliance
with
the
Committee's
ground
rules,
is
using
the
Committee's
consensus
regulatory
language
as
the
basis
of
today's
proposed
rule.

N.
What
are
the
Benefits
of
Negotiated
Rulemaking?

The
regulatory
negotiation
process
allowed
EPA
to
solicit
direct
input
from
informed,

interested,
and
affected
parties
while
drafting
the
regulation,
rather
than
delay
public
input
until
the
public
comment
period
provided
after
publishing
a
proposed
rule;
therefore,
ensuring
that
the
rule
is
sensitive
to
the
needs
and
limitations
of
both
the
parties
and
the
Agency.
A
rule
drafted
by
negotiation
with
informed
and
affected
parties
is
expected
to
be
grounded
in
the
practical
experiences
of
the
experts
on
the
committee
and
more
easily
implemented,
thereby
providing
the
public
with
the
benefits
of
the
rule
while
minimizing
the
negative
impact
of
a
regulation
conceived
or
drafted
without
the
direct
input
of
outside
knowledgeable
parties.
Since
a
negotiating
committee
includes
representatives
from
the
major
stakeholder
groups
affected
by
or
interested
in
the
rule,
the
number
of
public
comments
on
the
proposed
rule
may
be
reduced
and
those
comments
that
are
received
may
be
more
moderate.

Under
a
traditional
rulemaking
process,
EPA
develops
a
proposed
rulemaking
using
Agency
staff
and
consultant
resources.
The
concerns
of
affected
parties
are
made
known
through
various
informal
contacts
and
through
publication
of
advance
notices
of
proposed
rulemaking
in
the
Federal
Register.
After
the
notice
of
proposed
rulemaking
is
published
for
comment,

affected
parties
may
submit
arguments
and
data
defining
and
supporting
their
positions
with
33
regard
to
the
issues
raised
in
the
proposed
rule.
All
communications
from
affected
parties
are
directed
to
the
Agency.
In
general,
there
is
not
much
communication
among
parties
representing
different
interests.
Many
times,
effective
regulations
have
resulted
from
such
a
process.

However,
as
Congress
noted
in
the
Negotiated
Rulemaking
Act
of
1990,
such
regulatory
development
procedures
"
may
discourage
the
affected
parties
from
meeting
and
communicating
with
each
other,
and
may
cause
parties
with
different
interests
to
assume
conflicting
and
antagonistic
positions
and
to
engage
in
expensive
and
time­
consuming
litigation
*
*
*''
(
5
U.
S.
C.

581(
2),
P.
L.
101­
648).
Congress
also
stated
that
  
adversarial
rulemaking
deprives
the
affected
parties
and
the
public
of
the
benefits
of
face­
to­
face
negotiations
and
cooperation
in
developing
and
reaching
agreement
on
a
rule.
It
also
deprives
them
of
the
benefits
of
shared
information,

knowledge,
expertise,
and
technical
abilities
possessed
by
the
affected
parties.''
(
Id
at
5
U.
S.
C.

581(
3)).
In
the
case
of
today's
proposed
rule,
EPA
believes
that
the
willingness
of
the
stakeholders
to
participate
in
the
negotiated
rulemaking
greatly
benefitted
the
development
of
the
proposed
rule.

O.
Who
Was
Represented
on
the
Negotiated
Rulemaking
Committee?

The
Agency
initiated
the
negotiated
rulemaking
process
giving
particular
attention
to
ensuring
full
and
adequate
representation
of
those
interests
that
may
be
significantly
affected
by
the
proposed
rule
setting
standards
for
conducting
all
appropriate
inquiries.
The
Negotiated
Rulemaking
Act
defines
the
term
"
interest"
as
"
with
respect
to
an
issue
or
matter
multiple
parties
which
have
a
similar
point
of
view
or
which
are
likely
to
be
affected
in
a
similar
manner"

(
5
U.
S.
C.
562(
5)).
Listed
below
are
parties
that
the
Agency
identified
as
being
"
significantly
34
affected"
by
the
matters
that
may
be
included
in
the
proposed
rule.
The
Negotiated
Rulemaking
Committee
consisted
of
representatives
from
each
of
these
stakeholder
groups.

The
Negotiated
Rulemaking
Committee
was
composed
of
25
members
representing
parties
of
interest
to
the
rulemaking.
EPA
monitored
the
membership
of
the
Committee
carefully
to
ensure
that
there
was
a
balanced
representation
from
affected
and
interested
stakeholder
groups.
The
Negotiated
Rulemaking
Committee
included
representatives
from
the
following
stakeholder
groups:

°
Environmental
Interest
Groups
°
Environment
Justice
Community
°
Federal
Government
°
Tribal
Governments
°
State
Governments
°
Local
Governments
°
Real
Estate
Developers
°
Bankers
and
Lenders
°
Environmental
Professionals
After
establishing
the
above
list
of
stakeholders
as
the
stakeholders
representing
significant
interests
in
the
rulemaking,
EPA
identified
specific
organizations
that
the
Agency
believed
could
speak
for
and
represent
these
interests.
After
identifying
a
preliminary
list
of
organizations
to
invite
to
participate
in
the
negotiated
rulemaking
process,
publishing
the
preliminary
list
in
the
Federal
Register
in
a
Notice
of
Intent
to
Negotiate
(
68
FR
10675),
and
considering
public
comment
on
the
list
of
organizations
invited
to
represent
each
stakeholder
group,
including
1
EPA
notes
that
after
all
members
of
the
Negotiated
Rulemaking
Committee
reached
consensus
on
November
14,
2003
and
such
consensus
was
confirmed
by
all
Committee
members
through
approval
of
the
final
meeting
summary,
U.
S.
PIRG
submitted
a
letter,
dated
December
19,
2003,
seeking
to
withdraw
from
the
Committee.
EPA
included
the
letter
and
its
reply
in
the
public
docket
for
the
negotiated
rulemaking
process,
SFUND­
2003­
0006.

35
considering
self­
nominations
received
from
commenters,
the
Negotiated
Rulemaking
Committee
was
formed.
The
Committee
included
individuals
from
the
following
organizations:

°
U.
S.
Environmental
Protection
Agency
°
Environmental
Defense
°
Center
for
Public
Environmental
Oversight
°
Partnership
for
Sustainable
Brownfields
Redevelopment
°
West
Harlem
Environmental
Action
°
U.
S.
Public
Interest
Research
Group
(
US
PIRG)
1
°
Association
of
State
and
Territorial
Solid
Waste
Management
Officials
°
Gila
River
Indian
Tribe
°
Cherokee
Nation
°
U.
S.
Conference
of
Mayors
°
National
Association
of
Local
Government
Environmental
Professionals
°
International
Municipal
Lawyers
Association
°
National
Association
of
Development
Organizations
°
National
Association
of
Homebuilders
°
The
Real
Estate
Roundtable
°
National
Association
of
Industrial
and
Office
Properties
°
International
Council
of
Shopping
Centers
36
°
Trust
for
Public
Land
°
National
Brownfields
Association
°
Mortgage
Bankers
Association
°
Environmental
Bankers
Association
°
National
Ground
Water
Association
°
American
Society
of
Civil
Engineers
°
ASFE
°
Wasatch
Environmental,
Inc.

The
docket
for
today's
rulemaking
includes
a
list
of
the
individuals
that
represented
each
of
these
organizations
on
the
Negotiated
Rulemaking
Committee.
Also
included
in
the
docket
are
the
meeting
summaries
for
each
meeting
of
the
Committee
and
the
Committee's
final
report.

III.
Detailed
Description
of
Today's
Proposed
Rule
A.
What
is
the
Purpose
and
Scope
of
the
Proposed
Rule?

As
outlined
in
the
Brownfields
Amendments
to
CERCLA,
the
purpose
of
today's
rule
is
to
establish
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries.
Such
inquiries
must
be
conducted
by
persons
seeking
any
of
the
landowner
liability
protections
under
CERCLA
prior
to
acquiring
a
property
(
as
outlined
in
Section
II.
B.
of
this
preamble).
In
addition,
persons
receiving
Federal
brownfields
grants
under
the
authorities
of
CERCLA
Section
104(
k)(
2)(
B)
to
conduct
site
characterizations
and
assessments
must
conduct
such
activities
in
compliance
with
the
all
appropriate
inquiries
regulations.
37
In
the
case
of
persons
claiming
one
of
the
CERCLA
landowner
liability
protections,
the
scope
of
today's
proposed
rule
includes
the
conduct
of
all
appropriate
inquiries
for
the
purpose
of
identifying
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
property
that
would
be
the
subject
of
a
response
action
for
which
a
liability
protection
would
be
needed
and
such
a
property
is
owned
by
the
person
asserting
protection
from
liability.
CERCLA
liability
is
limited
to
releases
and
threatened
releases
of
hazardous
substances
which
cause
the
incurrence
of
response
costs.
Therefore,
in
the
case
of
all
appropriate
inquiries
conducted
for
the
purpose
of
qualifying
for
protection
from
CERCLA
liability
(
CERCLA
Section
107),
the
scope
of
the
inquiries
is
to
identify
releases
and
threatened
releases
of
hazardous
substances
which
cause
or
threaten
to
cause
the
incurrence
of
response
costs.

In
the
case
of
persons
receiving
Federal
brownfields
grants
to
conduct
site
characterizations
and
assessments,
the
scope
of
the
proposed
all
appropriate
inquiries
standards
and
practices
may
be
broader.
The
Brownfields
Amendments
include
a
definition
of
a
"
brownfield
site"
that
includes
properties
contaminated
or
potentially
contaminated
with
pollutants
and
contaminants
not
included
in
the
definition
of
"
hazardous
substance"
in
CERCLA
Section
101(
14).
Brownfields
sites
include
properties
contaminated
with
(
or
potentially
contaminated
with)
hazardous
substances,
as
well
as
petroleum
and
petroleum
substances,
controlled
substances,
and
pollutants
and
contaminants
(
as
defined
in
CERCLA
Section
101(
33)).

Therefore,
in
the
case
of
persons
receiving
federal
brownfields
grant
monies
to
conduct
site
assessment
and
characterization
activities
at
brownfields
sites,
the
scope
of
the
all
appropriate
inquiries
may
include
these
other
pollutants
and
contaminants,
as
outlined
in
proposed
§
312.1(
c)(
2),
to
ensure
that
persons
receiving
brownfields
grants
can
appropriately
and
fully
38
assess
the
properties
that
are
owned
by
grant
recipients
to
the
full
extent
provided
by
the
law.
It
is
not
the
case
that
every
recipient
of
a
brownfields
assessment
grant
has
to
include
within
the
scope
of
the
all
appropriate
inquiries
petroleum
and
petroleum
products,
controlled
substances
and
CERCLA
pollutants
and
contaminants
(
as
defined
in
CERCLA
Section
101(
33)).
However,

in
those
cases
where
the
terms
and
conditions
of
the
grant
or
the
cooperative
agreement
with
the
grantee
designate
a
broader
scope
to
the
investigation
(
beyond
CERCLA
hazardous
substances),

then
the
scope
of
the
all
appropriate
inquiries
should
include
the
additional
substances
or
contaminants.

The
scope
of
today's
proposed
rule
does
not
include
property
purchased
by
a
nongovernmental
entity
or
non­
commercial
entity
for
"
residential
or
other
similar
uses
where
a
facility
inspection
and
title
search
reveal
no
basis
for
further
investigation."
(
Pub.
Law
107­
118
at
Sec.

223).
CERCLA
Section
101(
35)(
B)(
v)
states
that
in
those
cases,
the
title
search
and
facility
inspection
shall
be
considered
to
satisfy
the
requirements
for
all
appropriate
inquiries.

EPA
notes
that
today's
proposed
rule
also
does
not
affect
the
existing
CERCLA
liability
protections
for
state
and
local
governments
that
acquire
ownership
to
properties
involuntarily
in
their
functions
as
sovereigns,
pursuant
to
CERCLA
Sections
101(
20)(
D)
and
101(
35)(
A)(
ii).

Involuntary
acquisition
of
properties
by
state
and
local
governments
fall
under
those
CERCLA
provisions
and
EPA's
policy
guidance
on
those
provisions,
not
under
the
all
appropriate
inquiry
provisions
of
CERCLA
Section
101(
35)(
B).

B.
To
Whom
is
the
Rule
Applicable?
39
Today's
proposed
rule
applies
to
any
person
who
may
seek
the
landowner
liability
protections
of
CERCLA
as
an
innocent
landowner,
contiguous
property
owner,
or
bona
fide
prospective
purchaser.
The
statutory
requirements
to
obtain
each
of
these
landowner
liability
protections
include
the
conduct
of
all
appropriate
inquiries.
In
addition,
the
proposed
rule
will
apply
to
individuals
receiving
Federal
grant
monies
under
CERCLA
Section
104(
k)(
2)
to
conduct
site
characterization
and
assessment
activities.
Persons
receiving
such
grant
monies
must
conduct
the
site
characterization
and
assessment
in
compliance
with
the
all
appropriate
inquiries
regulatory
requirements.

C.
Does
the
Proposed
Rule
Include
any
New
Reporting
or
Disclosure
Obligations?

The
proposed
rule
does
not
include
any
new
reporting
or
disclosure
obligations.
The
proposed
rule
only
would
apply
to
those
property
owners
who
may
seek
the
landowner
liability
protections
provided
under
CERCLA
for
innocent
landowners,
contiguous
property
owners
or
bona
fide
prospective
purchasers.
The
documentation
requirements
included
in
this
proposed
rule
are
primarily
intended
to
enhance
the
inquiries
by
requiring
the
environmental
professional
to
record
the
results
of
the
inquiries
and
his
or
her
conclusions
regarding
conditions
indicative
of
releases
and
threatened
releases
on,
at,
in,
or
to
the
property
and
to
provide
a
record
of
the
environmental
professional's
inquiry.
There
are
no
proposed
requirements
to
notify
or
submit
information
to
EPA
or
any
other
government
entity.

The
proposed
rule
does
require,
in
proposed
§
312.21(
c),
that
the
environmental
professional
on
behalf
of
the
property
owner
document
the
results
of
the
all
appropriate
inquiries
in
a
written
report.
The
property
owner
may
use
this
report
to
document
the
results
of
the
2
Nothing
in
this
proposed
regulation
or
preamble
is
intended
to
suggest
that
any
documentation
prepared
in
conducting
all
appropriate
inquiries
will
be
admissible
in
court
in
any
litigation
where
a
party
raises
one
of
the
liability
protections,
or
will
in
any
way
alter
the
judicial
rules
of
evidence.

40
inquiries.
The
Agency
believes
that
such
a
report
can
be
similar
in
nature
to
the
type
of
report
currently
provided
under
generally
accepted
commercial
practices.
Today's
proposed
rule
contains
no
requirements
regarding
the
length,
structure,
or
specific
format
of
the
written
report.

In
addition,
the
proposed
rule
does
not
require
that
a
written
report
of
any
kind
be
submitted
to
EPA
or
any
other
government
agency,
or
that
a
written
report
be
maintained
on­
site
at
the
subject
property
for
any
length
of
time.
The
purpose
of
the
written
report
is
merely
to
ensure
that
any
person
claiming
one
of
the
CERCLA
landowner
liability
protections
be
able
to
show
documentation
that
all
appropriate
inquiries
were
conducted
in
compliance
with
the
federal
regulations,
should
such
documentation
be
required.
2
The
Agency
notes,
that
while
this
proposed
regulation
would
not
require
parties
conducting
all
appropriate
inquiries
to
retain
the
written
report
or
any
other
documentation
discovered,
consulted,
or
created
in
the
course
of
conducting
the
inquiries,
the
retention
of
such
documentation
and
records
may
be
helpful
should
the
property
owner
need
to
assert
protection
from
CERCLA
liability
after
purchasing
a
property.

The
proposed
rule
would
require
that
a
written
report
documenting
the
results
of
the
all
appropriate
inquiries
include
an
opinion
of
an
environmental
professional
as
to
whether
the
all
appropriate
inquiries
conducted
identified
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
subject
property.
The
proposed
rule
also
would
require
that
the
report
identify
data
gaps
in
the
information
collected
that
affect
the
ability
of
the
environmental
professional
to
render
such
an
opinion
or
determine
the
significance
of
data
gaps.
41
The
proposed
rule,
at
proposed
§
312.21(
d),
would
require
that
the
environmental
professional
who
conducts
or
oversees
the
all
appropriate
inquiries
sign
the
written
report.
There
are
two
purposes
for
the
proposed
requirement
to
include
a
signature
in
the
report.
First,
the
individual
signing
the
report
would
declare,
on
the
signature
page,
that
he
or
she
meets
the
definition
of
an
environmental
professional,
as
provided
in
proposed
§
312.10.
In
addition,
the
proposed
rule
would
require
the
environmental
professional
to
declare
that:
[
I,
We]
have
developed
and
performed
the
all
appropriate
inquiries
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
Part
312.

The
Negotiated
Rulemaking
Committee
considered
requiring
an
environmental
professional
to
"
certify"
the
results
of
the
all
appropriate
inquiries
when
signing
the
report.

However,
several
members
of
the
Committee,
members
of
the
public
representing
organizations
of
environmental
insurance
companies,
and
professional
engineers
and
environmental
scientists,

pointed
out
that
requiring
the
report
to
include
a
certification
statement
could
imply
a
warranty
or
guarantee
of
the
report
results
on
the
part
of
the
environment
professional.
This
in
turn
could
have
implications
regarding
the
availability
and
costs
of
professional
insurance
for
environmental
professionals.
Requiring
a
certification
as
part
of
the
all
appropriate
inquiries
report
also
could
cause
a
conflict
with
current
requirements
governing
the
use
of
professional
stamps
held
by
individuals
with
professional
licenses,
such
as
those
for
professional
engineers,
issued
by
states,

tribes,
and
the
federal
government.
To
avoid
such
implications,
the
proposed
rule
does
not
include
a
certification
requirement.
However,
the
proposed
rule
would
require
that
each
all
appropriate
inquiries
report
include
a
signature
of
the
environmental
professional
as
well
as
two
statements
above
the
signature.
One
statement
would
read
"[
I,
We]
declare
that,
to
the
best
of
42
[
my,
our]
professional
knowledge
and
belief,
[
I,
we]
meet
the
definition
of
Environmental
Professional
as
defined
in
§
312.21
of
40
CFR
Part
312."
The
proposal
also
includes
a
second
statement
to
be
included
above
the
signature,
stating:
"[
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]
developed
and
performed
the
all
appropriate
inquiries
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
Part
312."
These
statements
are
meant
to
document
that
an
individual
meeting
the
proposed
qualifications
of
an
environmental
professional
was
involved
in
the
conduct
of
the
all
appropriate
inquiries
and
that
the
activities
performed
by,
or
under
the
supervision
or
responsible
charge
of,
the
environmental
professional
were
performed
in
conformance
with
the
proposed
regulations.

The
proposed
rule
allows
for
the
property
owner
and
any
environmental
professional
engaged
in
the
conduct
of
all
appropriate
inquiries
for
a
specific
property
to
design
and
develop
the
format
and
content
of
a
written
report
that
will
meet
the
prospective
purchaser's
objectives
and
information
needs
in
addition
to
providing
documentation
that
all
appropriate
inquiries
were
completed
prior
to
the
acquisition
of
the
property,
should
the
landowner
need
to
assert
protection
from
liability
after
purchasing
a
property.

The
Agency
requests
comment
on
the
proposed
requirements
for
an
all
appropriate
inquiries
report.
The
Agency
also
requests
comments
on
the
signature
requirements
for
the
all
appropriate
inquiries
report.

Although
today's
proposed
rule
does
not
include
any
additional
disclosure
requirements,

CERCLA
Section
103
does
require
persons
in
charge
of
facilities,
including
on­
shore
and
offshore
facilities,
and
persons
in
charge
of
vessels
to
notify
the
National
Response
Center
of
any
43
release
of
a
hazardous
substance
of
a
quantity
equal
to
or
greater
than
a
"
reportable
quantity,"
as
defined
in
CERCLA
Section
102(
b)
from
the
facility
or
vessel.
Today's
proposed
rule
proposes
no
changes
to
this
reporting
requirement
and
proposes
no
changes
to
any
other
reporting
or
disclosure
requirements
under
federal,
tribal,
or
state
law.

D.
What
are
the
Proposed
Qualifications
for
an
Environmental
Professional?

1.
What
is
the
intent
of
the
proposed
definition
of
an
Environmental
Professional?

In
the
Brownfields
Amendments,
Congress
required
that
all
appropriate
inquiries
include
"
the
results
of
an
inquiry
by
an
environmental
professional"
(
CERCLA
Section
101(
35)(
B)(
iii)(
I)).
The
members
of
the
Negotiated
Rulemaking
Committee
determined
that
it
is
necessary
to
establish
minimum
qualifications
for
persons
managing
or
overseeing
all
appropriate
inquiries.
The
Committee's
intent,
in
setting
minimum
professional
qualifications,
is
to
ensure
that
all
inquiries
are
conducted
at
a
high
level
of
professional
ability
and
ensure
the
overall
quality
of
both
the
inquiries
conducted
and
the
conclusions
or
opinions
rendered
with
regard
to
conditions
indicative
of
the
presence
of
a
release
or
threatened
release
on,
at,
in,
or
to
a
property,
based
upon
the
results
of
all
inquiries.
The
Committee
agreed
that
an
environmental
professional
conducting
or
overseeing
all
appropriate
inquiries
must
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases
of
hazardous
substances
to
the
surface
or
subsurface
of
a
property.
The
Committee
agreed
that
an
environmental
professional
must
hold
a
degree
in
an
engineering
or
scientific
field
of
study
and
that
such
individuals
also
must
have
a
number
of
years
of
relevant
experience
in
conducting
all
appropriate
inquiries,
or
environmental
44
site
assessments.
The
Committee
determined
that
any
individual
overseeing
the
conduct
of
all
appropriate
inquiries
must
provide
significant
information
about
the
environmental
conditions
at
a
property
to
support
a
purchaser's
or
property
owner's
claim
with
regard
to
liability
protection
under
CERCLA.
Therefore,
any
individual
overseeing
the
conduct
of
the
all
appropriate
inquiries
must
have
a
significant
level
of
education
and
experience.
In
addition,
the
Committee
determined
that
it
is
essential
for
environmental
professionals
to
remain
current
in
their
field
of
practice.

2.
What
are
the
minimum
qualifications
for
meeting
the
definition
of
an
environmental
professional?

Today's
proposed
rule
includes
a
definition
of
an
environmental
professional
that
reflects
the
Negotiated
Rulemaking
Committee's
extensive
efforts
to
identify
a
set
of
minimum
qualifications,
including
minimum
levels
of
education
and
experience,
that
characterize
the
type
of
professional
who
is
best
qualified
to
oversee
and
direct
the
development
of
comprehensive
inquiries
and
provide
the
landowner
with
sound
conclusions
and
opinions
regarding
the
potential
for
releases
or
threatened
releases
to
be
present
at
the
property.
The
proposed
rule
allows
for
individuals
not
meeting
the
proposed
definition
of
an
environmental
professional
to
contribute
to
and
participate
in
the
all
appropriate
inquiries
on
the
condition
that
such
individuals
are
conducting
inquiries
activities
under
the
supervision
or
responsible
charge
of
an
individual
that
meets
the
regulatory
definition
of
an
environmental
professional.

The
proposed
rule
would
require
that
the
final
review
of
the
all
appropriate
inquiries
and
the
conclusions
that
follow
from
the
inquiries
rest
with
an
individual
who
qualifies
as
an
environmental
professional,
as
defined
in
proposed
section
§
312.10
of
the
proposed
rule.
The
45
Negotiated
Rulemaking
Committee
concluded,
as
reflected
in
its
final
consensus
document,
that
it
is
essential
that
a
person
meeting
the
regulatory
definition
of
an
environmental
professional
sign
a
report
documenting
the
results
and
conclusions
of
the
all
appropriate
inquiries
to
attest
to
his
or
her
opinion
that
the
inquiries
were
conducted
in
compliance
with
the
regulations.
The
proposed
rule
also
provides
that
in
signing
the
report,
the
environmental
professional
must
document
that
he
or
she
meets
the
definition
of
an
"
environmental
professional"
included
in
the
regulations.

The
proposed
definition
of
an
environmental
professional
includes
minimum
educational
qualifications
and
a
number
of
years
of
full­
time
relevant
experience
in
the
conduct
of
all
appropriate
inquiries
or
environmental
site
assessments.
The
proposed
definition
first
and
foremost
requires
that
to
qualify
as
an
environmental
professional
a
person
must
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases...
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
objectives
and
performance
factors"

that
are
provided
in
the
proposed
regulation.
The
proposed
definition
of
an
environmental
professional
includes
individuals
who
possess
the
following
combinations
of
education
and
experience.


hold
a
current
Professional
Engineer's
or
Professional
Geologist's
license
or
registration
from
a
state,
tribe,
or
U.
S.
territory
and
have
the
equivalent
of
three
(
3)
years
of
full­
time
relevant
experience;
or

be
licensed
or
certified
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory
to
perform
environmental
inquiries
as
defined
in
§
312.21
and
have
the
equivalent
of
three
(
3)

years
of
full­
time
relevant
experience;
or
46

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

as
of
the
date
of
the
promulgation
of
the
final
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.

Based
upon
the
recommendations
of
the
Negotiated
Rulemaking
Committee,
EPA
is
proposing
to
recognize
as
environmental
professionals
those
individuals
who
are
licensed
by
any
tribal
or
state
government
as
a
professional
engineer
(
P.
E.)
or
a
professional
geologist
(
P.
G.),
and
have
three
years
of
full­
time
relevant
experience
in
conducting
all
appropriate
inquiries.
The
Agency
believes
that
such
individuals
have
"
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases...
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
objectives
and
performance
factors"
provided
in
the
proposed
regulation.
EPA
and
the
Committee
concluded
that
the
rigor
of
the
tribal­
and
state­
licensed
P.
E.
and
P.
G.
certification
processes,
including
the
educational
and
training
requirements,
as
well
as
the
examination
requirements,
paired
with
the
requirement
to
have
three
years
of
relevant
professional
experience
conducting
all
appropriate
inquiries
will
ensure
that
all
appropriate
inquiries
are
conducted
under
the
supervision
or
responsible
charge
of
an
individual
well
qualified
to
oversee
the
collection
and
interpretation
of
site­
specific
information
and
render
informed
opinions
and
conclusions
regarding
the
environmental
conditions
at
a
property,
including
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases
of
hazardous
substances
and
other
contaminants
on,
at,
47
in,
or
to
the
property.
The
Agency's
decision
to
recognize
tribal
and
state­
licensed
P.
E.
s
and
P.
G.
s
reflects
the
fact
that
tribal
governments
and
state
legislatures
hold
such
professionals
responsible
(
legally
and
ethically)
for
safeguarding
public
safety,
public
health,
and
the
environment.
To
become
a
P.
E.
or
P.
G.
requires
that
an
applicant
have
a
combination
of
accredited
college
education
followed
by
approved
professional
training
and
experience.
Once
a
publicly­
appointed
review
board
approves
a
candidate's
credentials,
the
candidate
is
permitted
to
take
a
rigorous
exam.
The
candidate
must
pass
the
examination
to
earn
a
license,
and
perform
ethically
to
maintain
it.
After
a
state
or
tribe
grants
a
license
to
an
individual,
and
as
a
condition
of
maintaining
the
license,
many
states
require
P.
E.
s
and
P.
G.
s
to
maintain
proficiency
by
participating
in
approved
continuing
education
and
professional
development
programs.
In
addition,
members
of
the
Negotiated
Rulemaking
Committee,
including
state
representatives
on
the
Committee,
pointed
out
that
tribal
and
state
licensing
boards
can
investigate
complaints
of
negligence
or
incompetence
on
the
part
of
licensed
professionals,
and
may
impose
fines
and
other
disciplinary
actions
such
as
cease
and
desist
orders
or
license
revocation.

The
Negotiated
Rulemaking
Committee
also
recommended,
and
EPA
is
proposing,
to
include
within
the
proposed
definition
of
an
environmental
professional
individuals
who
are
environmental
professionals,
or
otherwise
licensed
to
perform
environmental
site
assessments
or
all
appropriate
inquiries
by
the
Federal
government
(
e.
g.,
the
Bureau
of
Indian
Affairs)
or
under
a
state
or
tribal
certification
program,
provided
that
these
individuals
also
have
three
years
of
relevant
experience.
It
is
the
Committee's
and
EPA's
opinion
that
such
qualifications
define
individuals
who
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
48
releases
or
threatened
releases...
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
[
proposed
rule's]
objectives
and
performance
factors."

Although
the
proposed
rule
recognizes
tribal
and
state­
licensed
P.
E.
and
P.
G.
s
and
other
such
government
licensed
environmental
professionals
with
three
years
of
experience
to
be
environmental
professionals,
the
proposed
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
proposed
definition
of
an
environmental
professional
also
would
include
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
Again,
such
individuals
most
likely
will
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
proposed
objectives
and
performance
factors
included
in
proposed
§
312.20(
d)
and
(
e).

A
goal
of
the
Negotiated
Rulemaking
Committee
was
to
establish
qualifications
for
the
environmental
professional
that
will
ensure
that
all
appropriate
inquiries
are
conducted
at
a
high
standard
of
technical
and
scientific
quality,
while
not
significantly
disrupting
the
current
market
for
professional
site
assessment
services.
The
Committee
debated
whether
or
not
to
recommend
that
the
definition
of
an
environmental
professional
be
restricted
to
individuals
holding
a
Professional
Engineer
or
Professional
Geologist
license,
or
holding
another
similar
license
from
a
state,
tribe,
or
U.
S.
territory.
Establishing
such
a
requirement
could
assure
that
all
appropriate
inquiries
conducted
for
the
purposes
of
supporting
a
claim
to
a
CERCLA
liability
protection
49
would
be
conducted
by
highly
qualified
individuals.
However,
Committee
members
recognized
that
many
individuals
with
appropriate
education
and
training
and
many
years
of
relevant
experience
in
conducting
environmental
site
assessments
(
including
non­
licensed
environmental
engineers
and
geologists)
may
be
qualified
to
conduct
all
appropriate
inquiries,
although
they
do
not
have
a
Professional
Engineer
or
Professional
Geologist
license.
The
Committee
therefore
discussed
what
qualifications
are
necessary
to
ensure
that
an
individual
is
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries,
review
the
results
of
all
inquiries
for
a
particular
property
and
be
capable
of
assessing
this
information
in
light
of
all
other
relevant
site­
specific
information
about
a
property
(
e.
g.,
hydrogeologic
setting),
and
develop
sound
opinions
and
conclusions
regarding
the
environmental
conditions
at
a
property
and
the
potential
presence
of
a
release
or
threatened
release
on,
at,
in
or
to
the
property.
The
Committee
determined
that
the
individuals
best
qualified
to
review
all
available
and
relevant
information
about
a
property
and
render
a
professional
opinion
regarding
the
environmental
conditions
at
a
property
at
a
standard
of
quality
necessary
that
may
ensure
a
valid
interpretation
of
the
findings
and
accurate
opinion
of
the
property's
environmental
conditions,
are
those
with
a
degree
in
a
relevant
field
of
engineering,
environmental
science,
or
earth
science
and
five
years
of
full­
time
relevant
experience.
The
Committee
considered
many
other
variants
of
educational
and
experience
qualifications.
Some
Committee
members
preferred
proposing
qualifications
centered
more
closely
around
specific
education
or
training
criteria.

Other
Committee
members
pointed
out
that
the
qualifications
should
be
based
primarily
on
years
of
relevant
experience.
After
much
deliberation
and
after
receiving
and
considering
public
comments
on
the
subject,
the
Committee
recommended
that
the
proposed
definition
of
an
environmental
professional
include
both
educational
and
experience
qualifications.
The
50
Committee
recommended
that
the
definition
of
an
environmental
professional
include
a
requirement
that
such
individuals
hold
a
Baccalaureate
or
higher
degree
in
a
relevant
field
of
science
or
engineering.
Committee
members
believed
that
individuals
trained
in
science
and
engineering
are
best
qualified
to
understand
how
to
interpret
information
collected
about
a
property
in
light
of
the
environmental
conditions
and
site­
specific
situations
at
the
property.
In
addition,
the
Committee
determined
that
individuals
with
such
degrees
also
should
have
five
years
of
relevant
full­
time
experience
in
conducting
all
appropriate
inquiries
prior
to
meeting
the
qualifications
for
an
environmental
professional.
The
proposed
rule
also
would
require
all
environmental
professionals
to
remain
current
in
the
field
of
all
appropriate
inquiries,
or
environmental
site
assessments.

During
the
Committee's
deliberations
on
the
definition
of
an
environmental
professional,

public
commenters
raised
particular
concerns
with
regard
to
individuals
who
currently
are
employed
in
the
business
of
conducting
all
appropriate
inquiries
or
environmental
site
assessments,
but
who
do
not
meet
the
Committee's
proposed
qualifications
of
an
environmental
professional.
The
Committee
gave
careful
consideration
of
public
comments
that
pointed
out
the
potential
impacts
that
the
proposed
definition
of
an
environmental
professional
may
have
on
the
current
market
for
environmental
site
assessment
services
and
the
fact
that
many
practicing
professionals
without
science
degrees
have
substantial
investigative
and
writing
skills.
Members
of
the
public
pointed
out
in
written
comments
to
EPA
and
the
Committee
that
some
practicing
professionals
have
many
years
of
experience
in
conducting
all
appropriate
inquiries,
but
do
not
have
the
specific
educational
requirements
recommended
by
the
Committee.
EPA
and
the
Committee,
in
considering
these
comments,
wanted
to
ensure
that
professionals
with
extensive
51
experience
in
conducting
all
appropriate
inquiries
and
who
have
built
their
careers
in
such
a
business
practice
not
be
put
out
of
business
or
bear
a
hardship
of
having
to
obtain
a
degree
midcareer
However,
EPA
and
the
Committee
had
to
balance
this
concern
with
the
additional
concerns
of
ensuring
that
all
appropriate
inquiries
are
conducted
by
experienced
and
well­
qualified
professionals.

The
Committee
deliberated
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
stringent
qualifications
for
environmental
professionals
against
the
need
to
ensure
that
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
After
carefully
considering
these
issues,
the
Committee
recommended
and
EPA
is
proposing,
as
part
of
the
proposed
definition
of
an
environmental
professional,
a
provision
allowing
many
currently
practicing
professionals
to
continue
to
conduct
business
in
the
field
of
environmental
site
assessments
or
all
appropriate
inquiries,
while
ensuring
a
high
qualifications
standard
for
future
professionals.
The
Negotiated
Rulemaking
Committee
recommended
that
the
proposed
definition
of
an
environmental
professional
allow
for
persons
that
at
the
time
of
promulgation
of
the
final
rule
do
not
meet
the
proposed
educational
or
professional
licensing
qualifications
for
an
environmental
professional
but
have
more
than
ten
years
of
experience
in
conducting
environmental
site
assessments
to
be
included
as
environmental
professionals.
This
provision
is
proposed
as
a
"
grandfather"
clause
and
would
only
apply
to
those
individuals
with
ten
or
more
years
of
experience
in
the
field
of
all
appropriate
inquiries
investigations
on
the
date
of
promulgation
of
the
final
rule.
The
Committee
made
this
recommendation
after
careful
consideration
of
public
comments
and
of
the
potential
impacts
that
the
proposed
definition
of
an
environmental
professional
may
have
on
the
current
52
market
for
environmental
site
assessment
services
and
the
fact
that
many
practicing
professionals
without
science
degrees
have
substantial
investigative
and
writing
skills.

The
proposed
definition
provides
that
"
as
of
the
date
of
promulgation
of
the
final
rule,

individuals
who
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"
will
meet
the
proposed
definition
of
an
environmental
professional.
Again,
this
provision
of
the
proposed
definition
is
a
grandfather
clause
and
would
apply
only
to
those
individuals
meeting
these
qualifications
on
the
date
of
promulgation
of
the
final
rule.
Persons
not
meeting
these
qualifications
on
the
effective
date
of
the
final
rule
will
have
to
meet
the
other
minimum
qualifications
included
in
the
proposed
definition
to
qualify
as
an
environmental
professional
for
the
purpose
of
conducting
all
appropriate
inquiries
under
the
federal
standards
established
under
the
final
rule.

EPA
is
requesting
comment
on
the
proposed
definition
of
an
environmental
professional
and
the
specific
minimal
qualifications
included
in
the
proposed
definition.

3.
If
I
am
certified
as
an
environmental
professional
by
a
private
certification
association,
do
I
qualify
as
an
environmental
professional
under
the
proposed
rule?

During
the
Negotiated
Rulemaking
Committee's
deliberations,
the
general
public
had
many
opportunities
to
comment
on
the
Committee's
draft
regulatory
language
including
the
opportunity
to
provide
written
comment
to
the
Committee
and
make
oral
presentations
to
the
Committee
during
each
of
the
Committee's
meetings.
Many
individuals
took
advantage
of
the
openness
of
the
negotiated
rulemaking
process
to
provide
input
and
comment
to
the
Committee,
53
particularly
with
regard
to
the
Committee's
deliberations
on
the
definition
of
an
environmental
professional.
The
Committee
considered
restricting
the
definition
of
an
environmental
professional
to
state­
licensed
certification
programs.
However,
based
upon
many
comments
received
from
the
public,
as
well
as
the
concerns
of
some
members
of
the
Committee,
the
Committee
members
concluded
that
there
is
a
need
to
recognize
individuals
who
have
similar
qualifications
to
P.
E.
s
and
P.
G.
s
but
do
not
hold
a
state­
issued
license
or
certificate.
Therefore,

the
Committee
recommended,
and
EPA
is
proposing,
to
include
within
the
definition
of
an
environmental
professional
those
individuals
who
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
in
conducting
environmental
site
assessments
or
all
appropriate
inquiries.
The
proposed
definition
of
"
relevant
experience"
is
"
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...
to
the
subject
property."

The
Committee
received
comments
from
independent
professional
certification
organizations,
including
the
Certified
Hazardous
Materials
Managers'
organization,
requesting
that
their
organizations'
certification
programs
be
named
in
the
proposed
regulatory
definition
of
an
environmental
professional.
The
Committee
concluded
that
such
an
approach
would
require
that
EPA
review
the
certification
requirements
of
each
organization
to
determine
whether
or
not
each
organization's
certification
requirements
meet
or
exceed
the
regulatory
qualifications
54
proposed
for
an
environmental
professional.
Given
that
there
may
be
many
such
organizations
and
given
that
each
organization
may
review
and
change
its
certification
qualifications
on
a
frequent
or
periodic
basis,
EPA
concluded
that
such
a
undertaking
was
not
practicable.
The
Agency
does
not
have
the
necessary
resources
to
review
the
legitimacy
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.

Therefore,
the
Committee
recommended,
and
EPA
is
proposing,
to
include
within
the
regulatory
definition
of
an
environmental
professional,
a
generic
performance­
based
qualifications
standard
that
includes
education
and
experience
qualifications,
but
does
not
recognize
any
private
organization's
certification
program.
However,
the
Agency
notes
that
any
individual
with
a
certification
from
a
private
certification
organization
where
the
organization's
certification
qualifications
include
the
same
or
more
stringent
education
and
experience
requirements
as
those
included
in
the
federal
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.
As
stated
above,
the
proposed
definition
of
an
environmental
professional
includes
individuals
who
hold
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.

4.
Can
persons
not
meeting
the
proposed
definition
of
an
environmental
professional
contribute
to
the
conduct
of
all
appropriate
inquiries?

During
the
Committee's
deliberations
on
the
definition
of
an
environmental
professional,

members
of
the
public
also
raised
concerns
about
restricting
the
conduct
of
all
appropriate
inquiries
to
only
those
individuals
meeting
the
definition
of
an
environmental
professional.
The
55
Negotiated
Rulemaking
Committee
considered
requiring
that
all
the
activities
necessary
to
complete
the
all
appropriate
inquiries
investigation
be
conducted
by
persons
meeting
the
proposed
definition
of
an
environmental
professional.
Such
a
requirement
could
ensure
that
all
of
the
required
activities
are
conducted
at
a
high
standard
of
quality.
In
addition,
requiring
that
all
activities
be
conducted
by
an
environmental
professional
could
ensure,
to
a
high
level
of
confidence,
the
accuracy
and
reliability
of
the
environmental
professional's
interpretation
of
the
inquiries
results.
However,
after
careful
review
of
specific
activities
required
to
complete
the
all
appropriate
inquiries,
consideration
of
public
comments
offered
during
the
Committee's
deliberations,
and
consideration
of
the
costs
and
impacts
to
the
market
for
environmental
site
assessment
services,
the
Committee
decided
that
it
is
not
necessary
for
an
environmental
professional
to
perform
all
aspects
of
the
all
appropriate
inquiries.

Therefore,
the
proposed
definition
of
an
environmental
professional
would
allow
for
many
of
the
individual
inquiry
activities
to
be
conducted
by
individuals
that
may
not
qualify
as
an
environmental
professional
per
the
proposed
definition.
The
proposed
rule
would
allow
individuals
not
meeting
the
definition
of
an
environmental
professional
to
contribute
to
the
conduct
of
the
all
appropriate
inquiries,
as
long
as
such
individuals
are
working
under
the
supervision
or
responsible
charge
of
an
individual
who
meets
the
proposed
definition
of
an
environmental
professional.
This
provision
would
allow
for
a
team
of
individuals
working
for
the
same
firm
or
organization
(
e.
g.,
individuals
working
for
the
same
government
agency)
to
share
the
workload
for
conducting
all
appropriate
inquiries
for
a
single
property,
provided
that
one
member
of
the
team
meets
the
proposed
definition
of
an
environmental
professional
and
reviews
the
results
and
conclusions
of
the
inquiries
and
signs
the
final
report.
56
The
Agency
requests
comments
on
all
of
the
proposed
qualifications
included
in
the
definition
of
an
environmental
professional
and
the
provisions
allowing
for
individuals
who
do
not
qualify
as
environmental
professionals
to
contribute
to
inquiry
activities.

E.
References
Today's
proposed
rule
includes
no
references.
However,
the
Agency
is
reserving
a
reference
section
and
may
include
references
in
the
final
rule.
As
explained
later
in
this
preamble,

EPA
is
inviting
the
public
to
identify
potentially
applicable
standards
developed
by
standards
developing
organizations
that
may
be
applicable
and
compliant
with
the
regulations
proposed
today.
Prior
to
promulgating
a
final
regulation
setting
federal
standards
and
practices
for
all
appropriate
inquiries,
the
Agency
may
consider
citing
or
referencing
applicable
and
compliant
voluntary
consensus
standards
in
the
final
regulation.
This
may
facilitate
implementation
of
the
final
regulations
and
avoid
disruption
to
parties
using
voluntary
consensus
standards
that
are
found
to
be
fully
compliant
with
the
federal
regulations.

F.
What
is
Included
in
"
All
Appropriate
Inquiries?"

The
proposed
Federal
regulations
for
conducting
all
appropriate
inquiries
include
standards
and
practices
for
conducting
the
activities
included
in
each
of
the
statutory
criterion
established
by
Congress
in
the
Brownfields
Amendments.
These
criteria
are
set
forth
in
CERCLA
Section
101(
35)(
2)(
B)(
iii)
and
are:

°
The
results
of
an
inquiry
by
an
environmental
professional
(
proposed
§
312.21).
57
°
Interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
for
the
purpose
of
gathering
information
regarding
the
potential
for
contamination
at
the
facility
(
proposed
§
312.23).

°
Reviews
of
historical
sources,
such
as
chain
of
title
documents,
aerial
photographs,

building
department
records,
and
land
use
records,
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed
(
proposed
§
312.24).

°
Searches
for
recorded
environmental
cleanup
liens
against
the
facility
that
are
filed
under
Federal,
State,
or
local
law
(
proposed
§
312.25).

°
Reviews
of
Federal,
State,
and
local
government
records,
waste
disposal
records,

underground
storage
tank
records,
and
hazardous
waste
handling,
generation,
treatment,

disposal,
and
spill
records,
concerning
contamination
at
or
near
the
facility
(
proposed
§
312.26).

°
Visual
inspections
of
the
facility
and
of
adjoining
properties
(
proposed
§
312.27).

°
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
(
proposed
§
312.28).

°
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated
(
proposed
§
312.29).

°
Commonly
known
or
reasonably
ascertainable
information
about
the
property
(
proposed
§
312.30).

°
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
(
proposed
§
312.31).
58
1.
Who
is
responsible
for
conducting
the
all
appropriate
inquiries?

The
Brownfields
Amendments
to
CERCLA
require
persons
claiming
any
of
the
landowner
liability
protections
to
conduct
all
appropriate
inquiries
into
the
past
uses
and
ownership
of
subject
property.
The
criteria
included
in
the
Brownfields
Amendments
for
the
regulatory
standards
for
all
appropriate
inquiries
require
that
the
inquiries
include
an
inquiry
by
an
environmental
professional.
The
statute
does
not
require
that
all
criteria
or
inquiries
be
conducted
by
an
environmental
professional.
After
careful
review
and
consideration
of
each
statutory
criterion,
the
Negotiated
Rulemaking
Committee
determined
that
many,
but
not
all,
of
the
inquiries
activities
must
be
conducted
by,
or
under
the
supervision
or
responsible
charge
of,
an
individual
meeting
the
qualifications
within
the
proposed
definition
of
an
environmental
professional.

The
Committee
recommended,
and
EPA
is
proposing,
that
several
of
the
activities
included
in
the
inquiries
may
be
conducted
either
by
the
purchaser,
or
the
landowner,
and
do
not
have
to
be
conducted
under
the
supervision
or
responsible
charge
of
the
environmental
professional.
The
proposed
rule
would
require
that
the
results
of
all
activities
not
conducted
by
or
under
the
supervision
or
responsible
charge
of
the
environmental
professional
be
provided
to
the
environmental
professional
to
ensure
that
such
information
may
be
fully
considered
when
the
environmental
professional
draws
conclusions
based
on
the
inquiry
activities
or
renders
an
opinion
as
to
whether
conditions
at
the
property
are
indicative
of
a
release
or
threatened
release
of
a
hazardous
substance
(
or
other
contaminant)
on,
at,
in,
or
to
the
property
which
causes
the
incurrence
of
response
costs.
59
The
proposed
rule
allows
for
the
following
activities
to
be
the
responsibility
of,
or
conducted
by,
the
purchaser
or
landowner
and
not
necessarily
by
the
environmental
professional,

provided
the
results
of
such
inquiries
or
activities
are
provided
to
an
environmental
professional
overseeing
the
all
appropriate
inquiries:

°
searches
for
environmental
cleanup
liens
against
the
subject
property
that
are
filed
or
recorded
under
federal,
tribal,
state,
or
local
law,
as
required
by
proposed
§
312.25.

°
assessments
of
any
specialized
knowledge
or
experience
on
the
part
of
the
purchaser
or
landowner,
as
required
by
§
312.28.

°
an
assessment
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
subject
property,
if
the
property
was
not
contaminated,
as
required
by
§
312.29.

°
an
assessment
of
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property,
as
required
by
§
312.30.

The
proposed
rule
would
require
that
all
other
required
inquiries
and
activities,
beyond
those
listed
above
to
be
conducted
by,
or
under
the
supervision
or
responsible
charge
of,
an
environmental
professional.
The
Agency
requests
comment
on
the
proposed
division
of
responsibilities.

2.
When
must
all
appropriate
inquiries
be
conducted?

CERCLA,
as
amended,
requires
innocent
landowners,
bona
fide
prospective
purchasers,

and
contiguous
property
owners
to
conduct
all
appropriate
inquiries
prior
to
acquiring
a
property
for
the
purposes
of
either
establishing
that
the
purchaser
"
did
not
know
and
had
no
reason
to
know"
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
property,
or
60
in
the
case
of
the
bona
fide
prospective
purchaser,
to
identify
environmental
conditions
indicative
of
releases
or
threatened
releases
at
the
property
prior
to
taking
ownership
of
the
property.
In
the
case
of
contiguous
property
owners,
CERCLA
Section
107(
q)(
1)(
A)(
viii)
requires
that
a
person
claiming
to
be
a
contiguous
property
owner
conduct
all
appropriate
inquiries
"
at
the
time
at
which
the
person
acquired
the
property."
In
the
case
of
innocent
landowners,
Section
101(
35)(
B)
of
CERCLA
requires
that
the
property
owner
conduct
all
appropriate
inquiries
"
on
or
before
the
date
on
which
the
defendant
acquired
the
facility."

Other
than
to
specify
that
all
appropriate
inquiries
must
be
conducted
at
or
prior
to
the
time
a
person
acquires
a
property,
the
statute
is
silent
regarding
how
close
to
the
actual
purchase
date
the
inquiries
must
be
completed.
The
proposed
rule
requires
that
all
appropriate
inquiries
be
conducted
within
one
year
prior
to
taking
title
to
a
property.
As
explained
below,
purchasers
may
use
information
collected
as
part
of
previous
inquiries
for
the
same
property,
if
the
inquiries
were
completed
or
updated
within
one
year
prior
to
the
date
the
property
is
acquired.
The
proposed
rule
would
require
that
certain
information
collected
as
part
of
the
all
appropriate
inquiries
be
updated
if
it
was
collected
more
than
180
days
prior
to
the
date
a
purchaser
acquires
the
property.

In
addition,
the
Agency
is
proposing
to
define
the
date
of
acquisition
of
a
property
as
the
date
on
which
the
purchaser
acquires
title
to
the
property.

The
Agency
believes
that
the
event
that
most
closely
reflects
the
Congressional
intent
of
the
date
on
which
the
defendant
acquired
the
property
is
the
date
on
which
a
purchaser
received
title
to
the
property.
The
Agency
considered
other
dates,
such
as
the
date
a
prospective
purchaser
signs
a
purchase
or
sale
agreement.
However,
EPA
believes
that
it
could
be
burdensome
to
require
a
prospective
purchaser
to
have
completed
the
all
appropriate
inquiries
61
prior
to
having
an
agreement
with
a
seller
to
complete
a
sales
transaction.
In
fact,
the
time
period
between
the
date
on
which
a
sales
agreement
is
signed
and
the
date
on
which
the
title
to
the
property
is
actually
transferred
to
the
purchaser
may
be
the
most
convenient
time
for
the
prospective
purchaser
to
obtain
access
to
the
property
and
undertake
the
all
appropriate
inquiries.

In
addition,
requiring
that
all
appropriate
inquiries
be
completed
on
some
date
prior
to
the
date
of
title
transfer
could
result
in
requiring
prospective
purchasers
to
undertake
all
appropriate
inquiries
so
early
in
the
property
acquisition
process
as
to
require
the
inquiries
to
be
completed
prior
to
the
purchaser
making
a
final
decision
on
whether
to
actually
acquire
the
property.
EPA
requests
comment
on
the
proposal
to
establish
the
date
on
which
title
is
transferred
as
the
date
on
which
the
property
is
acquired.

To
increase
the
potential
that
the
information
collected
for
the
all
appropriate
inquiries
accurately
reflects
the
proposed
objectives
and
performance
factors,
as
well
as
to
increase
the
potential
that
opinions
and
judgments
regarding
the
environmental
conditions
at
a
property
that
are
included
in
an
all
appropriate
inquiries
report
are
based
on
current
and
relevant
information,

the
Agency
is
proposing
that
all
appropriate
inquiries
be
conducted
within
one
year
prior
to
the
purchaser
acquiring
the
property.
Such
inquiries
may
include
information
collected
for
previous
all
appropriate
inquiries
that
were
conducted
or
updated
within
one
year
prior
to
the
acquisition
date
of
the
property.
In
addition,
as
explained
in
more
detail
below,
the
proposed
rule
would
require
that
several
of
the
components
of
the
inquiries
be
updated
within
180
days
prior
to
the
date
the
property
is
acquired
(
i.
e.,
the
date
the
landowner
obtains
title
to
the
property).
62
3.
Can
a
purchaser
use
information
collected
for
previous
inquiries
completed
for
the
same
property?

The
proposed
rule,
at
§
312.20(
b),
would
allow
parties
conducting
all
appropriate
inquiries
to
use
previous
inquiries
completed
for
the
same
property,
under
certain
conditions.
First,
the
previous
inquiries
must
have
been
conducted
in
compliance
with
the
regulations
applicable
at
the
time
the
previous
all
appropriate
inquiries
investigation
was
completed.
In
addition,
the
previous
inquiries
must
have
been
completed
with
information
that
was
collected
or
updated
no
longer
than
a
year
prior
to
the
current
acquisition
date
for
the
property.
Certain
types
of
information
collected
more
than
180
days
prior
to
the
current
date
of
acquisition
must
be
updated
for
the
current
all
appropriate
inquiries.
Also,
the
information
required
under
some
specific
criterion
(
e.
g.,
relationship
of
purchase
price
to
property
value,
specialized
knowledge
on
part
of
defendant)
must
be
collected
specifically
for
the
current
transaction.

When
discussing
the
issue
of
whether
or
not
to
provide
for
the
use
of
all
appropriate
inquiries
conducted
by
a
previous
owner,
or
the
seller,
of
a
particular
property,
the
Negotiated
Rulemaking
Committee
recognized
that
there
is
value
in
using
previously
collected
information
when
such
information
was
collected
in
accordance
with
the
regulatory
standards,
particularly
when
the
use
of
such
previously­
collected
information
will
reduce
the
need
to
undertake
duplicative
efforts.
In
its
deliberations,
the
Committee
discussed
the
potential
impacts
that
allowing
the
use
of
all
appropriate
inquiries
conducted
by
third
parties
could
have
upon
the
legality
and
legitimacy
of
the
all
appropriate
inquiries
required
to
be
conducted
by
a
purchaser
not
involved
in
the
collection
of
the
information.
The
Committee
also
discussed
how
often
certain
information
required
to
be
collected
as
part
of
the
all
appropriate
inquiries
should
be
updated
to
63
ensure
its
accuracy.
A
particular
focus
of
the
Committee's
discussions
was
the
need
for
information
collected
and
used
by
an
environmental
professional
to
be
accurate
and
current,

therefore
allowing
the
environmental
professional
to
make
informed
judgments
regarding
the
environmental
conditions
of
the
property
and
provide
informed
opinions
as
to
the
likelihood
that
conditions
are
indicative
of
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in,
or
to
the
property.

The
Committee
recommended,
and
EPA
is
proposing,
to
allow
all
appropriate
inquiries
to
include
information
contained
in
previous
inquiries,
including
inquiries
conducted
by
third
parties,

for
the
same
property.
However,
such
information
must
have
been
updated
or
collected
within
one
year
prior
to
the
date
the
current
purchaser
acquires
the
property
(
the
date
on
which
the
owner
takes
title
to
the
property)
and
collected
in
compliance
with
the
regulatory
requirements
that
were
in
effect
at
the
time
the
previous
all
appropriate
inquiries
were
conducted.
Note
that
if
the
previous
all
appropriate
inquiries
were
conducted
prior
to
the
effective
date
of
the
final
federal
standards
for
all
appropriate
inquiries,
the
inquiries
must
have
been
conducted
in
compliance
with
the
either
the
interim
standard
established
by
Congress
in
the
Brownfields
Amendments
and
clarified
by
EPA
on
May
9,
2003
(
68
FR
24888),
or
in
the
case
of
properties
purchased
prior
to
May
31,
1997,
in
compliance
with
practices
consistent
with
good
commercial
or
customary
business
practices.

The
Committee
recognized
that
it
is
not
sufficient
to
wholly
adopt
previously
conducted
all
appropriate
inquiries
for
the
same
property
without
any
review.
Certain
aspects
of
the
all
appropriate
inquiries
investigation
are
specific
to
the
current
purchaser
and
the
current
purchase
64
transaction.
Therefore,
the
proposed
rule
would
require
that
each
all
appropriate
inquiries
investigation
include
current
information
related
to:

°
any
relevant
specialized
knowledge
held
by
the
current
purchaser
and
the
environmental
professional
responsible
for
overseeing
and
signing
the
all
appropriate
inquiries
report
(
i.
e.,
requirements
of
proposed
§
312.28);
and
°
the
relationship
of
the
current
purchase
price
to
the
value
of
the
property,
if
the
property
were
not
contaminated
(
i.
e.,
requirements
of
proposed
§
312.29)

In
addition,
the
Committee
recommended
that
certain
information
be
updated
if
it
was
not
collected
within
180
days
prior
to
the
date
of
acquisition
of
the
property
(
or
the
date
on
which
the
purchaser
takes
title
to
the
property)
to
ensure
that
an
all
appropriate
inquiries
investigation
accurately
reflects
the
environmental
conditions
at
a
property.
To
increase
the
potential
that
information
collected
is
accurate,
as
well
as
increase
the
potential
that
opinions
and
judgments
regarding
the
environmental
conditions
at
a
property
that
are
included
in
an
all
appropriate
inquiries
report
are
based
on
current
and
relevant
information,
the
proposed
rule
would
require
that
many
of
the
components
of
the
inquiries
be
updated
within
180
days
prior
to
the
date
of
acquisition
of
the
property.
The
components
of
the
all
appropriate
inquiries
that
must
be
updated
within
180
days
prior
to
the
date
of
acquisition
of
the
property
are:

°
interviews
with
past
and
present
owners,
operators,
and
occupants
(
proposed
§
312.23);

°
searches
for
recorded
environmental
cleanup
liens
(
proposed
§
312.25);

°
reviews
of
federal,
tribal,
state,
and
local
government
records
(
proposed
§
312.26);

°
visual
inspections
of
the
facility
and
of
adjoining
properties
(
proposed
§
312.27);
and
°
the
declaration
by
the
environmental
professional
(
proposed
§
312.21(
d)).
65
An
all
appropriate
inquiries
investigation
may
include
the
information
listed
above
when
previously
collected
by
the
purchaser
or
a
third
party
for
the
same
property,
provided
that
the
information
was
collected
no
longer
than
one
year
prior
to
the
current
purchaser's
date
of
acquisition
of
the
property
and
provided
that
it
is
updated
for
the
current
all
appropriate
inquiries
investigation,
if
it
was
collected
more
than
180
days
prior
to
the
acquisition
date.
Also,
in
all
cases
where
a
purchaser
is
using
previously
collected
information,
the
all
appropriate
inquiries
for
the
current
purchase
must
include
a
summary
of
any
changes
to
the
conditions
of
the
property
that
occurred
since
the
previous
inquiries
were
conducted.

The
Agency
requests
comment
on
the
proposed
provisions
for
using
previously
conducted
all
appropriate
inquiries.

6.
Can
all
appropriate
inquiries
be
conducted
by
one
party
and
transferred
to
another
party?

The
proposed
rule,
at
proposed
§
312.20(
c),
allows
for
all
appropriate
inquiries
to
be
conducted
by
one
party
and
transferred
to
another
party,
provided
that
certain
conditions
are
met.

It
was
brought
to
the
attention
of
the
Negotiated
Rulemaking
Committee
that
under
certain
circumstances,
the
person
purchasing
a
property
may
obtain
a
report
of
all
appropriate
inquiries
conducted
for
the
property
from
another
party,
either
the
seller
of
the
property
or
another
independent
party.
In
particular,
the
Committee
discussed
situations
where
the
federal
government
or
a
state
government
agency
may
conduct
the
all
appropriate
inquiries
on
behalf
of
the
local
government
on
a
property
being
purchased
by
a
local
government.
For
example,
the
EPA
Brownfields
program
conducts
"
targeted
brownfields
assessments"
on
behalf
of
local
governments.
This
situation
also
may
occur
when
a
state
government
is
covering
the
cost
of
the
66
all
appropriate
inquiries
for
a
property
owned
by
a
local
government
or
in
a
situation
where
the
local
government
does
not
have
access
to
appropriate
staff
or
capital
resources
to
conduct
the
all
appropriate
inquiries
and
it
therefore
is
conducted
by
a
state
government
agency.
Another
example
is
when
a
local
government
conducts
all
appropriate
inquiries
for
a
third
party
in
its
community,
such
as
a
private
prospective
purchaser.
In
addition,
local
brownfields
redevelopment
agencies
that
are
connected
to
local
government
may
seek
out
contaminated
property,
make
all
appropriate
inquiries
about
it,
acquire
it,
and
then
sell
the
property
to
a
developer.

The
proposed
rule
allows
for
a
person
acquiring
a
property
to
use
the
results
of
inquiries
and
the
inquiries
report
conducted
by
another
party,
if
the
inquiries
and
the
report
meet
the
proposed
objectives
and
performance
factors
for
the
all
appropriate
inquiries
regulations
and
the
purchaser
of
the
property
who
is
seeking
to
use
the
previously­
collected
information
or
report,

reviews
all
information
collected
and
updates
the
contents
of
the
report
as
necessary
to
accurately
reflect
current
conditions
at
the
property.
In
addition,
the
proposed
rule
would
require
that
the
purchaser
update
the
inquiries
and
the
report
to
include
any
relevant
specialized
knowledge
held
by
the
current
purchaser
and
the
environmental
professional.
The
Agency
requests
comments
on
the
proposed
requirements
for
using
all
appropriate
inquiries
conducted
by
third
parties.

7.
What
are
the
objectives
and
performance
factors
for
the
proposed
all
appropriate
inquiries
requirements?

The
Committee
developed
its
recommendation
for
proposed
regulatory
language
around
the
criteria
established
by
Congress
in
Section
101(
35)(
B)(
iii)
of
CERCLA.
As
the
Committee
progressed
in
its
efforts
to
address
each
criterion,
it
became
apparent
that
the
purposes
and
67
objectives
for
performing
many
of
the
inquiries
and
the
types
of
information
that
must
be
collected
to
meet
the
objectives
of
the
individual
regulatory
criterion
often
overlapped.
For
example,
in
developing
standards
addressing
the
criterion
requiring
a
review
of
historical
information,
a
search
for
recorded
environmental
cleanup
liens,
and
a
review
of
government
records,
the
Committee
concluded
that
the
objectives
of
each
criterion
or
activity
was
similar,
and
in
some
cases,
the
same
information
could
be
collected
independently
to
satisfy
each
criterion
when
conducting
activities
required
to
fulfill
each
of
the
criterion's
objectives.
A
chain
of
title
document
is
historic
information
that
may
include
information
on
environmental
cleanup
liens
and
may
include
information
on
past
owners
of
the
property
that
indicates
that
previous
owners
managed
hazardous
substances
at
the
property.

To
avoid
requiring
duplicative
efforts,
but
to
ensure
that
the
proposed
regulations
include
standards
and
practices
that
result
in
a
comprehensive
assessment
of
the
environmental
conditions
at
a
property,
the
Negotiated
Rulemaking
Committee
recommended,
and
EPA
is
proposing,
that
the
all
appropriate
inquiries
standards
be
structured
around
a
concise
set
of
objectives
and
performance
factors.
The
proposed
objectives
and
performance
factors
apply
to
the
inquiries
comprehensively.
In
conducting
the
inquiries
collectively,
the
landowner
and
the
environmental
professional
must
seek
to
achieve
the
proposed
objectives
and
performance
factors
and
use
these
proposed
objectives
and
standards
as
guidelines
in
implementing,
in
total,
all
of
the
other
proposed
regulatory
standards
and
practices.

An
all
appropriate
inquiries
investigation
need
not
address
each
of
the
regulatory
criterion
in
any
particular
sequence.
In
addition,
information
relevant
to
more
than
one
criterion
need
not
be
collected
twice,
and
a
single
source
of
information
may
satisfy
the
requirements
of
more
than
68
one
criterion
and
more
than
one
objective.
Under
the
provisions
of
the
proposed
rule,
the
information
required
to
achieve
each
of
the
objectives
and
performance
factors
must
be
met
for
the
all
appropriate
inquiries
investigation
to
be
complete.
Although
compliance
with
the
all
appropriate
inquiries
requirements
ultimately
will
be
determined
in
a
court,
the
proposed
rule
allows
the
purchaser
and
environmental
professional
to
determine
the
best
process
and
sequence
for
collecting
and
analyzing
all
required
information.
For
example,
it
may
be
appropriate
in
many
situations
for
the
historic
records
search
required
by
proposed
§
312.24
and
the
search
of
government
records
required
under
proposed
§
312.26
be
conducted
prior
to
conducting
interviews
of
past
and
present
owners,
operators,
and
occupants,
as
required
under
proposed
§
312.23.
This
may
allow
the
purchaser
or
environmental
professional
to
develop
a
general
understanding
of
past
uses
and
ownership
of
a
property
prior
to
interviewing
owners
and
occupants
and
therefore
make
better
use
of
the
interviews
to
obtain
information
necessary
to
meet
the
performance
factors
or
objectives
of
the
overall
investigation
when
conducting
interviews
of
past
and
present
owners
or
occupants.
In
addition,
it
often
may
be
beneficial
to
conduct
the
required
interviews
of
owners,
operators
and
occupants
prior
to
conducting
an
on­
site
visual
inspection.
Information
obtained
during
the
interviews
may
be
useful
for
locating
and
inspecting
potential
sources
of
environmental
concerns
during
the
visual
inspection.

As
stated
in
proposed
§
312.20(
d),
the
all
appropriate
inquiries
standards,
as
applicable
to
landowners
seeking
CERCLA
liability
protections
as
innocent
landowners,
bona
fide
prospective
purchasers,
and
contiguous
landowners,
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
prior
to
the
acquisition
of
the
property.
As
established
in
proposed
§
312(
d)(
2),
in
the
69
case
of
persons
receiving
federal
brownfields
grant
monies
under
CERCLA
Section
104(
k)
to
conduct
site
characterizations
and
assessments,
the
all
appropriate
inquiries
standards
are
intended
to
result
in
the
identification
of
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,
as
well
as
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
when
conducting
the
assessment
or
characterization
with
the
use
of
the
grant
funds
and
when
the
terms
and
conditions
of
the
grant
include
such
pollutants
and
contaminants
within
the
scope
of
the
grant.
This
expanded
objective
for
brownfields
grant
recipients
reflects
the
broad
statutory
definition
of
a
"
brownfield
site"
that
allows
EPA
to
provide
grant
monies
to
eligible
entities
(
see
CERCLA
Section
104(
k)(
1))
for
the
assessment
and
cleanup
of
real
property
that
is
complicated
by
the
presence
or
potential
presences
of
hazardous
substances,
pollutants,
contaminants,

petroleum
and
petroleum
products,
and
controlled
substances
(
see
CERCLA
Section
101(
39)).

In
performing
the
inquiries,
including
conducting
interviews,
collecting
historical
data
and
government
records,
inspecting
the
subject
property
and
adjoining
properties,
and
carrying
out
all
other
inquiries,
all
parties
undertaking
all
appropriate
inquiries
must
be
attentive
to
the
fact
that
the
primary
objectives
of
the
proposed
regulation
are
to
identify
the
following
types
of
information
about
the
subject
property
prior
to
acquiring
the
property:

°
current
and
past
property
uses
and
occupancies;

°
current
and
past
uses
of
hazardous
substances;

°
waste
management
and
disposal
activities
that
could
have
caused
releases
or
threatened
releases
of
hazardous
substances;
70
°
current
and
past
corrective
actions
and
response
activities
undertaken
to
address
past
and
on­
going
releases
of
hazardous
substances;

°
engineering
controls;

°
institutional
controls;
and
°
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
on,
at,
in,
or
to
the
subject
property.

The
Negotiated
Rulemaking
Committee
also
developed
a
set
of
performance
factors
for
the
conduct
and
performance
of
each
of
the
individual
proposed
standards
and
practices
that
make
up
the
proposed
rule.
These
performance
factors,
which
are
included
in
proposed
§
312.20(
e),

include:
(
1)
gather
the
information
that
is
required
for
each
standard
and
practice
that
is
publicly
available
(
or
otherwise
obtainable),
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,
taking
into
account
information
gathered
in
the
course
of
complying
with
the
other
standards
and
practices
of
this
subpart.
The
proposed
performance
factors
are
provided
as
guidelines
to
be
followed
in
conjunction
with
the
proposed
objectives
for
the
all
appropriate
inquiries.
EPA
and
the
Negotiated
Rulemaking
Committee
are
not
suggesting
that
the
goal
of
the
conduct
of
the
all
appropriate
inquiries
is
to
identify
every
available
document
and
piece
of
information
regarding
a
property
and
the
environmental
conditions
on
the
property.
Instead,
the
objective
of
the
conduct
of
all
appropriate
inquiries
is
to
develop
an
understanding
of
the
conditions
of
the
property
and
determine
whether
or
not
there
are
conditions
indicative
of
releases
and
threatened
releases
of
71
hazardous
substances
(
and
pollutants,
contaminants,
controlled
substances,
and
petroleum
and
petroleum
products,
if
applicable)
on,
at,
in
or
to
the
subject
property.

The
Agency
requests
comments
on
the
proposed
objectives
and
performance
factors
for
the
all
appropriate
inquiries
requirements.

Persons
seeking
to
establish
a
basis
for
one
of
the
CERCLA
landowner
liability
protections
also
should
keep
in
mind
that
an
objective
of
the
all
appropriate
inquiries
standards
and
practices
is
to
characterize
the
environmental
conditions
at
a
property
that
are
indicative
of
releases
or
threatened
releases,
prior
to
acquiring
the
property.
This
information
may
facilitate
compliance
with
the
additional
statutory
requirements
applicable
for
claiming
the
liability
protections
after
acquiring
the
property.

Failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
of
a
hazardous
substance
on,
at,
in
or
to
a
property
during
the
conduct
of
all
appropriate
inquiries,

does
not
relieve
a
landowner
from
complying
with
the
other
post­
acquisition
statutory
requirements
for
obtaining
the
landowner
liability
protections.
Landowners
must
comply
with
all
the
statutory
requirements
to
obtain
protection
from
liability.
For
example,
an
inability
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
post­
acquisition
responsibilities
under
the
statute
to
take
reasonable
steps
to
stop
the
release,
prevent
a
threatened
release,
and
prevent
exposure
to
the
release
or
threatened
release.

8.
What
are
institutional
controls?

Under
the
proposed
rule,
those
performing
all
appropriate
inquiries
must
seek
to
identify
institutional
controls.
As
defined
in
proposed
§
312.10,
institutional
controls
are
non­
engineered
72
instruments,
such
as
administrative
and
legal
controls,
that
among
other
things,
can
help
to
minimize
the
potential
for
human
exposure
to
contamination,
protect
the
integrity
of
a
remedy
by
limiting
land
or
resource
use,
and
provide
information
to
modify
behavior.
For
example,
an
institutional
control
might
prohibit
the
drilling
of
a
drinking
water
well
in
a
contaminated
aquifer
or
disturbing
contaminated
soils.
Institutional
controls
may
also
be
referred
to
as
land
use
controls,
activity
and
use
limitations,
etc.,
depending
on
the
program
under
which
a
response
action
is
conducted.

Institutional
controls
are
typically
used
whenever
contamination
precludes
unlimited
use
and
unrestricted
exposure
at
the
property.
Thus,
institutional
controls
may
be
needed
both
before
and
after
completion
of
the
remedial
action.
Institutional
controls
often
must
remain
in
place
for
an
indefinite
duration
and,
therefore,
generally
need
to
survive
changes
in
property
ownership
(
i.
e.,
run
with
the
land)
to
be
legally
and
practically
effective.
Some
common
examples
of
institutional
controls
include
zoning
restrictions,
building
or
excavation
permits,
well
drilling
prohibitions,
easements
and
covenants.

The
importance
of
identifying
institutional
controls
during
all
appropriate
inquiries
is
twofold.
First,
institutional
controls
are
usually
necessary
and
important
components
of
a
remedy.

Failure
to
abide
by
an
institutional
control
may
put
people
at
risk
of
harmful
exposure
to
hazardous
substances.
Second,
an
owner
wishing
to
maintain
protections
from
CERCLA
liability
as
an
innocent
landowner,
contiguous
property
owner,
or
bona
fide
prospective
purchaser
must
fulfill
ongoing
obligations
to
comply
with
any
land
use
restrictions
established
or
relied
on
in
connection
with
a
response
action
and
to
not
impede
the
effectiveness
or
integrity
of
any
institutional
control
employed
in
connection
with
a
response
action.
For
a
more
detailed
73
discussion
of
these
requirements
please
see
EPA,
Interim
Guidance
Regarding
Criteria
Landowners
Must
Meet
in
Order
to
Quality
for
Bona
Fide
Prospective
Purchaser,
Contiguous
Property
Owner,
or
Innocent
Landowner
Limitations
on
CERCLA
Liability
(
Common
Elements,

2003).

Those
persons
conducting
all
appropriate
inquiries
may
identify
institutional
controls
through
several
of
the
standards
and
practices
set
forth
in
this
rule.
As
noted,
implementation
of
institutional
controls
may
be
accomplished
through
the
use
of
several
administrative
and
legal
mechanisms,
such
as
zoning,
building
permit
requirements,
easements,
covenants,
etc.
Thus,
for
example,
an
easement
implementing
an
institutional
control
might
be
identified
through
the
review
of
chain
of
title
documents
under
§
312.24(
a).
Furthermore,
interviews
with
past
and
present
owners,
operators,
or
occupants
pursuant
to
§
312.23;
and
reviews
of
federal,
tribal,
state,
and
local
government
records
under
§
312.26,
may
identify
an
institutional
control
or
refer
a
person
to
the
appropriate
source
to
find
an
institutional
control.
For
example,
a
review
of
federal
Superfund
records,
including
Records
of
Decision
and
Action
Memoranda,
as
well
as
other
information
contained
in
the
CERCLIS
data
base,
may
indicate
that
zoning
was
selected
as
an
institutional
control
or
an
interview
with
a
current
operator
may
reveal
an
institutional
control
as
part
of
an
operating
permit.

9.
How
must
data
gaps
be
addressed
in
the
conduct
of
all
appropriate
inquiries?

As
defined
in
proposed
§
312.10,
data
gaps
are
a
lack
of
or
inability
to
obtain
information
required
by
the
standards
and
practices
listed
in
the
proposed
regulation,
despite
good
faith
efforts
by
the
environmental
professional
or
the
prospective
landowner
(
or
grant
recipient)
to
gather
such
74
information
pursuant
to
the
proposed
objectives
for
all
appropriate
inquiries.
Proposed
§
312.20(
f)
requires
environmental
professionals,
prospective
landowners
and
grant
recipients
to
identify
data
gaps
that
affect
their
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
(
and
in
the
case
of
grant
recipients
pollutants,
contaminants,

petroleum,
and
controlled
substances).
In
addition,
the
proposal
would
require
such
persons
to
identify
the
sources
of
information
consulted
to
address,
or
fill,
the
data
gaps,
and
require
such
persons
to
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases
in
the
all
appropriate
inquiries
report.
In
addition,
proposed
§
312.21(
c)(
2)
would
require
that
environmental
professionals
include
in
the
inquiries
report
an
identification
of
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
on,
at,
in,
or
to
the
subject
property.
Proposed
§
312.21(
c)(
2)
also
would
require
that
the
inquiries
report
include
comments
regarding
the
significance
of
any
data
gaps
on
the
environmental
professional's
ability
to
provide
an
opinion
as
to
whether
the
inquiries
have
identified
conditions
indicative
of
releases
or
threatened
releases.

A
lack
of
information
or
an
inability
to
obtain
information
that
may
affect
the
ability
of
an
environmental
professional
to
determine
whether
or
not
there
are
conditions
indicative
of
a
release
or
threatened
release
of
a
hazardous
substance
(
or
other
contaminant)
on,
at,
in
or
to
a
property
can
have
significant
consequences
regarding
a
prospective
landowner's
ultimate
ability
to
claim
protection
from
CERCLA
liability.
A
person's
inability
to
obtain
information
regarding
a
property's
ownership
or
use
prior
to
acquiring
a
property
can
affect
the
landowner's
ability
to
claim
a
protection
from
CERCLA
liability
after
acquiring
the
property,
if
a
lack
of
information
75
results
in
the
landowner's
inability
to
comply
with
any
other
post­
acquisition
statutory
obligations
that
are
necessary
to
assert
protection
from
CERCLA
liability.
For
example,
if
a
person
does
not
identify,
during
the
all
appropriate
inquiries
prior
to
acquiring
a
property,
a
leaking
underground
storage
tank
that
exists
on
the
property,
the
landowner
may
not
have
sufficient
information
to
comply
with
the
statutory
requirement
to
take
reasonable
steps
to
stop
on­
going
releases
after
acquiring
the
property.
This
may
result
in
an
inability
to
claim
protection
against
CERCLA
liability
for
any
on­
going
release.
The
proposed
rule
states
the
need
to
identify
data
gaps,
address
them
when
possible,
and
document
their
significance.
Prospective
landowners
must
consider
the
potential
significance
of
any
data
gaps
that
may
exist
after
conducting
the
pre­
acquisition
all
appropriate
inquiries
on
the
landowner's
ability
to
fulfill
the
additional
statutory
requirements
after
purchasing
a
property.

If
a
person
properly
conducts
all
appropriate
inquiries
pursuant
to
this
rule,
including
the
requirements
concerning
data
gaps
at
proposed
§
§
312.10,
312.20(
f)
and
312.21(
c)(
2),
the
person
can
fulfill
the
all
appropriate
inquiries
requirements
of
CERCLA
Sections
107(
q),
107(
r),
and
101(
35),
even
when
there
are
data
gaps
in
the
inquiries.
However,
as
explained
further
in
this
preamble,
a
fulfillment
of
the
all
appropriate
inquiries
requirements
does
not,
by
itself,
provide
a
person
with
a
protection
from
or
defense
to
CERCLA
liability.
An
inability
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
ongoing
or
continuing
responsibilities
under
the
statute,
including
the
requirements
to
take
reasonable
steps
to
stop
the
release,
prevent
a
threatened
release,
and
prevent
exposure
to
the
release
or
threatened
release
once
the
landowner
has
acquired
a
property.
Also,
if
an
existing
institutional
control
or
land
use
restriction
is
not
identified
during
the
conduct
of
all
appropriate
76
inquiries
prior
to
the
acquisition
of
a
property,
a
landowner
is
not
exempt
from
complying
with
the
institutional
control
or
land
use
restriction
after
acquiring
the
property.
None
of
the
other
statutory
requirements
for
the
liability
protections
is
satisfied
by
the
results
of
the
all
appropriate
inquiries.

The
Agency
notes
that
the
mere
fact
that
a
purchaser
conducted
all
appropriate
inquiries
does
not
provide
any
individual
with
a
limitation
from
CERCLA
liability.
To
qualify
as
a
bona
fide
prospective
purchaser,
innocent
landowner
or
a
contiguous
property
owner,
a
person
must,
in
addition
to
conducting
all
appropriate
inquiries
prior
to
acquiring
a
property,
comply
with
all
of
the
other
statutory
requirements.
These
criteria
are
summarized
in
section
II.
D.
of
this
preamble.

The
all
appropriate
inquiries
investigation
may
provide
a
purchaser
with
necessary
information
to
comply
with
the
other
post­
acquisition
statutory
requirements
for
obtaining
liability
protections.

The
failure
to
detect
a
release
during
the
conduct
of
all
appropriate
inquiries
does
not
exempt
a
landowner
from
his
or
her
post­
acquisition
continuing
obligations
under
other
provisions
of
the
statute.

Proposed
§
312.20(
f)
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
Agency
notes
that
the
proposed
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.

The
proposal
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.

The
Agency
requests
comments
on
the
proposed
provisions
addressing
data
gaps.
The
Agency
also
explicitly
requests
comments
on
the
decision
not
to
require
sampling
as
part
of
the
proposed
all
appropriate
inquiries
standards.
77
10.
Do
small
quantities
of
hazardous
substances
that
do
not
pose
threats
to
human
health
and
the
environment
have
to
be
identified
in
the
inquiries?

The
environmental
professional
should
identify
and
evaluate
all
evidence
of
releases
or
threatened
releases
on,
at,
in
or
to
the
subject
property,
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices.
However,
as
provided
in
proposed
§
312.20(
g),
the
environmental
professional
need
not
specifically
identify,
in
the
written
report
prepared
pursuant
to
proposed
§
312.21(
c),
extremely
small
quantities
or
amounts
of
contamination,
except
as
needed
to
fairly
describe
the
evidence
identified
by
the
environmental
professional
of
releases
and
threatened
releases
that
could
pose
a
threat
to
human
health
or
the
environment.

G.
What
are
the
Proposed
Requirements
for
Interviewing
Past
and
Present
Owners,

Operators,
and
Occupants?

CERCLA
Section
101(
35)(
B)(
iii)(
II)
requires
EPA
to
include
in
the
standards
and
practices
for
all
appropriate
inquiries
"
interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
for
the
purpose
of
gathering
information
regarding
the
potential
for
contamination
at
the
facility."
The
proposed
requirements
for
conducting
interviews
of
past
and
present
owners,
operators,
and
occupants
of
the
subject
property
are
included
in
proposed
§
312.23.
The
proposal
identifies
these
interviews
as
being
within
the
scope
of
the
inquiry
of
the
environmental
professional.
Therefore,
all
interviews
would
either
have
to
be
conducted
by
the
environmental
professional
or
within
the
supervision
or
responsible
charge
of
the
environmental
professional.
The
intent
is
that
an
individual
meeting
the
definition
of
an
environmental
78
professional
(
§
312.10)
must
oversee
the
conduct
of,
or
review
and
approve
the
results
of,
the
interviews
to
ensure
the
interviews
are
conducted
in
compliance
with
the
proposed
objectives
and
performance
factors
(
§
312.20).
EPA
also
intends
this
proposed
provision
be
used
to
help
ensure
that
the
information
obtained
from
the
interviews
provides
sufficient
information,
in
conjunction
with
the
results
of
all
other
inquiries,
to
allow
the
environmental
professional
to
render
an
opinion
with
regard
to
conditions
at
the
property
that
may
be
indicative
of
releases
or
threatened
releases
of
hazardous
substances
(
and
pollutants,
contaminants,
petroleum
and
controlled
substances,
if
applicable).

The
proposed
rule
would
require
the
environmental
professional's
inquiry
to
include
interviewing
the
current
owner
and
occupant
of
the
subject
property.
In
addition,
the
proposal
provides
that
the
inquiry
of
the
environmental
professional
include
interviews
of
additional
individuals,
including
current
and
past
facility
managers
with
relevant
knowledge
of
the
property,

past
owners,
occupants,
or
operators
of
the
subject
property,
or
employees
of
current
and
past
occupants
of
the
subject
property
as
necessary
to
meet
the
proposed
objectives
and
in
accordance
with
the
proposed
performance
factors.
A
primary
objective
of
the
interviews
portion
of
the
all
appropriate
inquiries
is
to
obtain
information
regarding
the
current
and
past
ownership
and
uses
of
the
property,
and
obtain
information
regarding
the
conditions
of
the
property.
The
proposed
rule
does
not
prescribe
particular
questions
that
must
be
asked
during
the
interview.
The
Negotiated
Rulemaking
Committee
and
EPA
concluded
that
the
type
and
content
of
any
questions
asked
during
interviews
will
depend
upon
the
site­
specific
conditions
and
circumstances
and
the
extent
of
the
environmental
professional's
(
or
other
individual's
under
the
supervision
or
responsible
charge
of
the
environmental
professional)
knowledge
of
the
property
prior
to
conducting
the
79
interviews.
Therefore,
the
proposed
rule
does
not
include
specific
questions
for
the
interviews,

but
requires
that
the
interviews
be
conducted
in
a
manner
that
achieves
the
proposed
objectives
and
performance
factors.
EPA
recommends
that
the
environmental
professional,
or
an
individual
under
the
supervision
or
responsible
charge
of
the
environmental
professional,
develop
the
interview
questions
prior
to
conducting
the
interview,
and
tailor
the
questions
to
the
rule's
objectives
and
performance
factors.
Interviews
with
current
and
past
owners
and
occupants
may
provide
opportunities
to
collect
information
about
a
property
that
is
not
previously
recorded
nor
well
documented
or
may
provide
valuable
perspectives
on
how
to
find
or
interpret
information
required
to
complete
other
aspects
of
the
all
appropriate
inquiries.
Information
gathered
during
the
interview
portion
of
the
all
appropriate
inquiries
may
in
turn
provide
valuable
information
for
the
on­
site
visual
inspection.
Persons
conducting
the
interviews
of
current
and
past
owners
and
occupants
may
want
to
spend
some
time
during
the
interviews
requesting
information
on
the
locations
of
operations
or
units
used
to
store
or
manage
hazardous
substances
on
the
property.

In
the
case
of
properties
where
there
may
be
more
than
one
owner
or
occupant,
or
many
owners
or
occupants,
the
proposed
rule
would
require
the
inquiry
to
include
interviews
of
major
occupants
and
those
occupants
that
are
using,
storing,
treating,
handling
or
disposing
(
or
are
likely
to
have
used,
stored,
treated,
handled
or
disposed)
of
hazardous
substances
(
or
pollutants,

contaminants,
petroleum,
and
controlled
substances,
as
applicable)
on
the
property.
The
proposed
rule
does
not
specify
the
number
of
owners
and
occupants
to
be
interviewed.
The
environmental
professional
must
perform
this
function
in
the
manner
that
best
fulfills
the
proposed
objectives
and
performance
factors
for
the
inquiries
in
proposed
§
312.20(
d)
and
(
e).

Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
80
occupants
to
be
interviewed
and
the
total
number
of
occupants
to
be
interviewed
in
seeking
to
comply
with
the
proposed
objectives
and
performance
factors
for
the
inquiries.
Interviews
must
be
conducted
with
individuals
most
likely
to
be
knowledgeable
about
the
current
and
past
uses
of
the
property,
particularly
with
regard
to
current
and
past
uses
of
hazardous
substances
on
the
property.

In
the
case
of
abandoned
properties,
the
proposed
rule
would
require
the
inquiry
of
the
environmental
professional
to
include
interviews
with
one
or
more
owners
or
occupants
of
neighboring
or
nearby
properties.
The
Committee
recognized
that
in
the
case
of
abandoned
properties,
it
most
likely
will
be
difficult
to
identify
or
interview
current
or
past
owners
and
occupants
of
the
property.
Therefore,
the
Committee
recommended
that
the
conduct
of
all
appropriate
inquiries
include
interviewing
at
least
one
owner
or
occupant
of
a
neighboring
property
to
obtain
information
regarding
past
owners
or
uses
of
property
in
cases
where
the
subject
property
is
abandoned.
The
proposed
rule
defines
an
abandoned
property
as
a
"
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."
As
is
the
case
with
interviews
conducted
with
current
and
past
owners
and
occupants
of
the
property,
interview
questions
should
be
developed
prior
to
the
conduct
of
the
interviews,

and
tailored
to
gather
information
to
achieve
the
rule's
objectives
and
performance
factors.

The
Agency
requests
comments
on
the
proposed
standards
for
conducting
interviews
of
past
and
present
owners
and
occupants
of
a
property.
EPA
also
requests
comments
on
the
81
proposed
requirements
to
interview
owners
or
occupants
of
neighboring
properties
in
the
case
of
abandoned
properties.

H.
What
are
the
Proposed
Requirements
for
Reviews
of
Historical
Sources
of
Information?

Historical
documents
and
records
may
contain
essential
information
regarding
past
ownership
and
uses
of
a
property
that
may
provide
information
regarding
the
potential
for
environmental
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
to
be
present
at
the
property.
Historical
documents
and
records,
among
others,
may
include
chain
of
title
documents,
land
use
records,
aerial
photographs
of
the
property,
fire
insurance
maps,
and
records
held
at
local
historical
societies.
The
proposed
rule,
as
proposed
§
312.24,
would
require
the
inquiry
of
the
environmental
professional
to
include
a
review
of
historical
documents
and
records
for
the
subject
property
that
document
the
ownership
and
use
of
the
property
for
a
period
of
time
as
far
back
in
the
history
of
the
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
government
purposes.

The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
"
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed."
The
Committee
recommended,
and
EPA
is
proposing,
that
records
be
searched
for
information
on
the
property
covering
a
time
period
as
far
back
in
history
as
there
is
documentation
that
the
property
contained
structures
or
was
placed
into
use
of
some
form.
The
Committee
believed,
and
EPA
agrees,
that
this
provision
follows
Congressional
intent.
Historical
documents
and
information
must
be
reviewed
to
obtain
82
information
relevant
to
the
proposed
objectives
and
performance
factors
of
proposed
§
312.20(
d)

and
(
e).
If
a
search
of
historical
sources
of
information
results
in
an
inability
of
the
inquiry
to
document
previous
uses
and
occupancies
of
the
property
as
far
back
in
history
as
there
is
documentation
that
the
property
contained
structures
or
was
placed
into
use
of
some
form
and
such
information
cannot
be
addressed
through
the
implementation
of
other
inquiries
or
regulatory
criteria,
then
the
unavailable
information
must
be
documented
as
a
data
gap
to
the
inquiries.
The
proposed
requirements
of
§
§
312.20(
f)
and
312.21(
c)(
2)
are
applicable
to
all
instances
in
the
all
appropriate
inquiries
that
result
in
data
gaps.

The
proposed
rule
would
not
require
that
any
specific
type
of
historic
information
be
collected.
In
particular,
the
proposed
rule
does
not
require
that
persons
obtain
a
chain
of
title
document
for
the
property.
The
proposed
rule
provides
that
the
purchaser
or
environmental
professional
use
professional
judgment
when
determining
what
types
of
historical
documentation
may
provide
the
most
useful
information
about
a
property's
ownership,
uses,
and
potential
environmental
conditions
when
seeking
to
comply
with
the
proposed
objectives
and
performance
factors
for
the
inquiries.
The
Negotiated
Rulemaking
Committee
considered
developing
a
specific
list
of
historical
documents
that
must
be
reviewed
for
each
property.
However,
given
the
wide
variety
of
property
types
and
locations
to
which
this
proposed
rule
could
apply,
the
Committee
determined
that
any
list
of
specific
documents
could
result
in
undue
burdens
on
many
property
owners
due
to
difficulties
in
collecting
any
specific
document
for
any
particular
property
or
property
location.
Therefore,
the
Committee
recommended,
and
EPA
is
proposing,
that
the
review
of
historical
documents
requirement
allow
the
purchaser
and
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
accepted
good
commercial
and
customary
83
standards
and
practices,
in
locating
the
best
available
sources
of
historical
information
and
reviewing
such
sources
for
information
necessary
to
comply
with
the
rule's
objectives
and
performance
factors.

As
explained
in
section
III.
E.
2
of
this
preamble,
the
purchaser
or
environmental
professional
may
make
use
of
previously
collected
information
about
a
property
when
conducting
all
appropriate
inquiries.
The
collection
of
historical
information
about
a
property
may
be
a
particular
case
where
previously
collected
information
may
be
valuable,
as
well
as
easily
accessible.
In
addition,
nothing
in
the
proposed
rule
prohibits
a
person
from
using
secondary
sources
(
e.
g.,
a
previously
conducted
title
search)
when
gathering
information
about
historical
ownership
and
usage
of
a
property.
As
explained
in
section
III.
E.
2,
information
must
be
updated
if
it
was
last
collected
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property.

The
Agency
requests
comments
on
the
proposed
standards
for
reviews
of
historical
sources
of
information.

I.
What
are
the
Proposed
Requirements
for
Searching
for
Recorded
Environmental
Cleanup
Liens?

For
purposes
of
this
rule,
recorded
environmental
cleanup
liens
are
encumbrances
on
property
for
the
recovery
of
incurred
cleanup
costs
on
the
part
of
a
state,
tribal
or
federal
government
agency
or
other
third
party.
Recorded
environmental
cleanup
liens
often
provide
an
indication
that
environmental
conditions
currently
or
previously
existed
on
a
property
that
may
have
included
the
release
or
threatened
release
of
a
hazardous
substance.
The
existence
of
an
environmental
cleanup
lien
should
be
used
as
an
indicator
of
potential
environmental
concerns
and
84
as
a
basis
for
further
investigation
into
the
potential
existence
of
on­
going
or
continued
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
subject
property.

The
Committee
recommended,
and
EPA
is
proposing
at
proposed
§
312.25,
that
the
search
for
recorded
environmental
cleanup
liens
be
performed
either
by
the
purchaser
or
through
the
inquiry
of
the
environmental
professional.
The
search
for
such
liens
may
not
necessarily
require
the
expertise
of
an
environmental
professional
and
therefore
may
be
more
efficiently
or
more
costeffectively
performed
by
the
purchaser
or
an
agent
of
the
purchaser.
Such
liens
may
be
included
as
part
of
the
chain
of
title
documents
or
may
be
recorded
in
some
other
format
by
state
or
local
government
agencies.
If
such
information
is
collected
by
the
purchaser,
or
other
agent
of
the
purchaser
who
is
not
under
the
supervision
or
responsible
charge
of
the
environmental
professional,
the
proposed
rule
would
require
that
any
information
on
environmental
cleanup
liens
that
is
collected
on
the
part
of
the
purchaser
be
provided
to
the
environmental
professional.
The
environmental
professional
can
then
make
use
of
such
information
during
the
conduct
of
the
all
appropriate
inquiries
and
when
rendering
conclusions
or
opinions
regarding
the
environmental
conditions
of
the
property.

The
Committee
recommended
that
the
all
appropriate
inquiries
regulation
require
that
purchasers
and
environmental
professionals
search
for
those
environmental
cleanup
liens
that
are
recorded
under
federal,
tribal,
state,
or
local
law.
Liens
that
are
not
recorded
by
government
programs
or
agencies
are
not
addressed
by
the
language
of
the
statute
on
the
criteria
for
all
appropriate
inquiries
(
the
statute
speaks
only
of
recorded
liens).
One
caution
about
the
conclusion
one
can
draw
from
not
finding
a
recorded
environmental
cleanup
lien
is
that
if
EPA
is
in
the
process
of
cleaning
up
a
site
at
the
time
of
acquisition
there
is
nothing
to
prevent
EPA
from
85
recording
such
a
lien
post
acquisition.
This
type
of
lien,
a
so­
called
windfall
lien,
has
no
statute
of
limitations
on
it
and
arises
at
the
time
EPA
first
spends
Superfund
money.
States
and
localities
may
have
similar
mechanisms.

The
Agency
requests
comments
on
the
proposed
standards
for
searching
for
recorded
environmental
cleanup
liens.

J.
What
are
the
Proposed
Requirements
for
Reviewing
Federal,
State,
Tribal,
and
Local
Government
Records?

The
proposed
rule,
at
proposed
§
312.26,
would
require
that
federal,
state,
tribal
and
local
government
records
be
searched
for
information
necessary
to
achieve
the
proposed
objectives
and
performance
factors,
including
information
regarding
the
use
and
occupancy
of
and
the
environmental
conditions
at
the
subject
property
and
conditions
of
nearby
or
adjoining
properties
that
could
have
a
impact
upon
the
environmental
conditions
of
the
subject
property.
Federal,

tribal,
state
and
local
government
records
may
contain
information
regarding
environmental
conditions
at
a
property.
In
particular,
government
records,
or
data
bases
of
such
information,

may
include
information
on
previously
reported
releases
of
hazardous
substances,
pollutants,

contaminants,
petroleum
products
and
controlled
substances.
Government
records
may
include
information
on
institutional
controls
related
to
a
particular
property.
For
example,
in
the
case
of
NPL
sites,
EPA
Superfund
records,
including
Action
Memoranda
and
Records
of
Decision,
may
have
information
on
institutional
controls
in
place
at
such
properties.
Government
records
also
may
include
information
on
activities
or
property
uses
that
could
cause
releases
or
threatened
releases
to
be
present
at
a
property.
The
proposed
rule,
at
§
312.26(
b),
requires
that
federal,
86
tribal,
state,
and
local
government
records
be
searched
for
information
indicative
of
environmental
conditions
at
the
subject
property.
The
types
of
government
records
or
data
bases
of
records
searched
should
include:

11.
Government
records
of
reported
releases
or
threatened
releases
at
the
subject
property,

including
previously
conducted
site
investigation
reports.

12.
Government
records
of
activities,
conditions,
or
incidents
likely
to
cause
or
contribute
to
releases
or
threatened
releases,
including
records
documenting
regulatory
permits
that
were
issued
to
current
or
previous
owners
or
operators
at
the
property
for
waste
management
activities
and
government
records
that
identify
the
subject
property
as
the
location
of
landfills,
storage
tanks,
or
as
the
location
for
generating
and
handling
activities
for
hazardous
substances,
pollutants,
contaminants,
petroleum
or
controlled
substances.

13.
CERCLIS
records
 
EPA's
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Information
System
(
CERCLIS)
database
contains
general
information
on
sites
across
the
nation
and
in
the
U.
S.
territories
that
have
been
assessed
by
EPA,
including
sites
listed
on
the
National
Priorities
List
(
NPL).
CERCLIS
includes
information
on
facility
location,
status,
contaminants,
institutional
controls,
and
actions
taken
at
particular
sites.
CERCLIS
also
contains
information
on
sites
being
assessed
under
the
Superfund
Program,
hazardous
waste
sites
and
potential
hazardous
waste
sites.

14.
Government­
maintained
records
of
public
risks
(
if
available)
 
the
all
appropriate
inquiries
government
records
search
should
include
a
search
for
available
records
documenting
public
health
threats
or
concerns
caused
by,
or
related
to,
activities
currently
or
previously
conducted
at
the
site.
87
15.
Emergency
Response
Notification
System
(
ERNS)
records
­
ERNS
is
EPA's
data
base
of
oil
and
hazardous
substance
spill
reports.
The
data
base
can
be
searched
for
information
on
reported
spills
of
oil
and
hazardous
substances
by
state.

16.
Government
registries,
or
publicly
available
lists
of
engineering
controls,
institutional
controls,
and
land
use
restrictions.
The
all
appropriate
inquiries
government
records
search
must
include
a
search
for
registries
or
publicly
available
lists
of
recorded
engineering
and
institutional
controls
and
recorded
land
use
restrictions.
Such
records
may
be
useful
in
identifying
past
releases
on,
at,
in,
or
to
the
subject
property
or
identifying
continuing
environmental
conditions
at
the
property.

In
the
case
of
all
the
government
records
listed
above,
the
requirements
of
this
criterion
may
be
met
by
searching
data
bases
containing
the
same
government
records
mentioned
in
the
list
above
that
are
accessible
and
available
through
government
entities
or
private
sources.
The
review
of
actual
records
is
not
necessary,
provided
that
the
same
information
contained
in
the
government
records
and
required
to
meet
the
requirements
of
this
criterion
and
achieve
the
proposed
objectives
and
performance
factors
for
these
regulations
is
attainable
by
searching
available
data
bases.

In
addition
to
reviewing
government
records,
or
data
bases
of
information
contained
in
government
records,
for
information
about
the
subject
property,
the
proposed
rule
would
require
that
government
records
for
nearby
and
adjoining
properties
be
reviewed
to
assess
the
potential
impact
to
the
subject
property
from
hazardous
substances
and
petroleum
contamination
migrating
from
contiguous
or
nearby
properties.
The
proposed
rule
would
require
all
appropriate
inquiries
to
include
a
search
of
government
records
or
data
bases
for
information
about
nearby
or
adjoining
88
properties
to
assess
potential
impacts
to
the
environmental
conditions
of
the
subject
property
from
off­
site
sources
of
contamination.
The
proposed
rule
would
require
that
government
records
be
searched
to
identify
information
relative
to
the
proposed
objectives
and
in
accordance
with
the
performance
factors
on:
(
1)
adjoining
and
nearby
properties
for
which
there
are
governmental
records
of
reported
releases
or
threatened
releases
(
e.
g.,
properties
currently
listed
on
the
National
Priorities
List
(
NPL),
properties
subject
to
corrective
action
orders
under
the
Resource
Conservation
and
Recovery
Act
(
RCRA),
properties
with
reported
releases
from
leaking
underground
storage
tanks);
(
2)
adjoining
and
nearby
properties
previously
identified
or
regulated
by
a
government
entity
due
to
environmental
conditions
at
a
site
(
e.
g.,
properties
previously
listed
on
the
NPL,
former
CERCLIS
sites
with
notices
of
no
further
response
actions
planned);
and
(
3)

adjoining
and
nearby
properties
that
have
government­
issued
permits
to
conduct
waste
management
activities
(
e.
g.,
facilities
permitted
to
manage
RCRA
hazardous
wastes).

In
the
case
of
government
records
searches
for
nearby
properties,
the
proposed
rule
(
at
§
312.26(
c))
includes
minimum
search
distances
for
obtaining
and
reviewing
records
or
data
bases
concerning
activities
and
facilities
located
on
nearby
properties.
The
minimum
search
distances
proposed
are
based
on
the
Negotiated
Rulemaking
Committee's
professional
judgment
regarding
the
value
of
obtaining
information
on
potential
releases
or
threatened
releases
from
properties
and
activities
within
a
given
distance
from
the
subject
property
that
could
have
an
impact
on
the
subject
property.
For
example,
government
records
identifying
properties
listed
on
the
NPL
should
be
searched
to
obtain
information
on
NPL
sites
located
within
one­
half
mile
of
the
subject
property.
The
Committee
generally
believed
that
NPL
sites
located
beyond
one­
half
mile
of
a
property
most
likely
would
have
little
or
no
impact
on
the
environmental
conditions
at
the
subject
89
property.
For
nearby
properties,
the
proposed
rule
includes
proposed
minimum
search
distances
(
e.
g.,
properties
located
either
within
one
mile
or
one
half
mile
of
the
subject
property)
for
each
type
of
record
to
be
searched
to
facilitate
defining
the
scope
of
the
records
searches.
In
the
case
of
two
types
of
records,
records
of
RCRA
small
quantity
and
large
quantity
generators
and
records
of
registered
storage
tanks,
the
all
appropriate
inquiries
search
need
only
identify
RCRA
generators
and
storage
tanks
located
on
adjoining
properties
(
the
proposal
contains
no
requirement
to
search
for
these
two
types
government
records
for
other
nearby
properties).

EPA
and
the
Negotiated
Rulemaking
Committee
realize
that
property­
specific
and
regional
conditions
may
influence
the
appropriateness
of
the
proposed
search
distances
for
any
given
type
of
record
and
property.
Appropriate
search
distances
for
properties
located
in
rural
settings
may
differ
from
appropriate
search
distances
for
urban
settings.
In
addition,
ground
water
flow
direction,
depth
to
ground
water,
arid
weather
conditions,
the
types
of
facilities
located
on
nearby
properties,
as
well
as
other
factors
may
influence
the
degree
of
impact
to
a
property
from
off­
site
sources.
Therefore,
the
proposed
rule
would
allow
for
the
environmental
professional
to
adjust
any
or
all
of
the
proposed
minimum
search
distances
for
any
of
the
record
types,
based
upon
professional
judgment
and
the
consideration
of
site­
specific
conditions
or
circumstances
when
seeking
to
achieve
the
proposed
objectives
and
performance
factors
for
the
required
inquiries.
The
proposed
rule
provides
that
the
environmental
professional
may
consider
one
or
more
of
the
following
factors
when
determining
an
alternative
appropriate
search
distance:

°
the
nature
and
extent
of
a
release;

°
geologic,
hydrogeologic,
or
topographic
conditions
of
the
subject
property
and
surrounding
environment;
90
°
land
use
or
development
densities;

°
the
property
type;

°
existing
or
past
uses
of
surrounding
properties;

°
potential
migration
pathways
(
e.
g.,
groundwater
flow
direction,
prevalent
wind
direction);

or
°
other
relevant
factors.

The
proposed
rule
would
require
environmental
professionals
to
document
the
rationale
for
making
any
modifications
to
the
required
minimum
search
distances
included
in
the
proposed
regulation.

The
Agency
requests
comments
on
the
proposed
standards
for
reviewing
federal,
state,

tribal
and
local
government
records.

K.
What
are
the
Proposed
Requirements
for
Visual
Inspections
of
the
Subject
Property
and
Adjoining
Properties?

1.
Visual
inspections
of
the
subject
property
The
proposed
rule,
at
§
312.27,
would
require
that
a
visual
on­
site
inspection
be
conducted
of
the
subject
property.
The
proposed
visual
on­
site
inspection
requirements
include
inspecting
the
facilities
and
any
improvements
on
the
property,
as
well
as
visually
inspecting
areas
on
the
property
where
hazardous
substances
may
currently
be
or
in
the
past
may
have
been
used,
stored,

treated,
handled,
or
disposed
of.
During
their
deliberations,
members
of
the
Negotiated
Rulemaking
Committee
overwhelmingly
stressed
the
need
for
every
all
appropriate
inquiries
investigation
to
include
an
on­
site
inspection.
Many
Committee
members
pointed
out
that
on­
site
91
inspections
of
a
property
can
provide
the
best
source
of
information
regarding
indications
of
environmental
conditions
on
a
property.
The
Committee
recommended,
and
EPA
included
in
today's
proposed
rule,
a
requirement
that
a
visual
on­
site
inspection
of
the
subject
property
be
conducted
in
all
but
a
few
very
limited
cases
and
that
physical
limitations
to
the
visual
on­
site
inspection
(
e.
g.,
weather
conditions,
physical
obstructions)
be
documented.

We
note
that
persons
conducting
all
appropriate
inquiries
with
monies
provided
in
a
grant
awarded
under
CERCLA
Section
104(
k)(
2)(
B)
must,
during
the
on­
site
visual
inspection,
inspect
the
facilities
and
any
improvements
on
the
property,
as
well
as
visually
inspect
any
other
areas
on
the
property
where
hazardous
substances
may
currently
be
or
in
the
past
may
have
been
used,

stored,
treated,
handled,
or
disposed.
In
addition,
depending
on
the
terms
and
conditions
of
the
grant
or
cooperative
agreement,
the
on­
site
visual
inspection
requirements
could
include
inspecting
the
facilities,
improvements,
and
other
areas
of
the
property
where
pollutants,

contaminants,
petroleum
and
petroleum
products,
or
controlled
substances
may
currently
be
or
in
the
past
may
have
been
used,
stored,
treated,
handled,
or
disposed.

The
visual
on­
site
inspection
of
a
property
during
the
conduct
of
all
appropriate
inquiries
may
be
the
most
important
aspect
of
the
inquiries
and
the
primary
source
of
information
regarding
the
environmental
conditions
on
the
property.
In
all
cases,
every
effort
must
be
made
to
conduct
an
on­
site
visual
inspection
of
a
property
when
conducting
all
appropriate
inquiries.

Some
members
of
the
Committee
raised
concerns
regarding
a
purchaser's
or
environmental
professional's
inability
to
obtain
on­
site
access
to
a
property
in
limited
circumstances.
Some
members
noted
that
extreme
and
prolonged
weather
conditions
and
remote
locations
can
impede
access
to
a
property.
Another
limited
circumstance
that
could
result
in
a
92
purchaser
or
environmental
professional
not
being
able
to
gain
on­
site
access
to
a
property
during
the
all
appropriate
inquiries
is
the
situation
where
a
local
government,
a
non­
profit
organization,

or
other
party
seeks
to
obtain
ownership
of
a
property,
but
the
owner
refuses
to
provide
access
to
the
local
government
or
non­
profit
organization
and
the
local
government
or
non­
profit
organization
exercises
all
good
faith
efforts
to
gain
access
to
the
property
(
e.
g.,
seeking
assistance
from
state
government
officials)
and
remains
unable
to
gain
on­
site
access.
Such
circumstances
may
arise
due
to
the
unique
nature
of
such
transactions.
Unlike
commercial
property
transactions
conducted
by
two
private
parties,
where
the
economic
and
legal
liability
interests
of
both
parties
and
the
ability
of
either
party
to
abandon
the
transaction
can
work
in
favor
of
the
purchasing
party's
ability
to
gain
access
to
a
property
prior
to
acquisition,
property
transactions
between
a
private
party
and
a
local
government
or
non­
profit
organization
acting
on
behalf
of
the
public
interest,
may
not
afford
the
local
government
or
non­
profit
organization
the
same
leverage,
even
if
it
is
indeed
in
the
public
interest
to
attain
ownership
of
the
property.
This
situation
may
occur
when
the
local
government
or
non­
profit
association
seeks
to
assess,
cleanup,
and
revitalize
an
area,
but
the
owner
of
the
property
is
unreachable,
unavailable,
or
otherwise
unwilling
to
provide
access
to
the
property.
In
such
limited
circumstances,
the
public
benefit
attained
from
a
government
entity,
or
the
non­
profit
organization,
gaining
ownership
of
a
property
may
outweigh
the
need
to
gain
on­
site
access
to
the
property
prior
to
the
transfer
of
ownership.

The
proposed
rule
would
require,
in
such
unusual
circumstances,
that
the
purchaser
make
good
faith
efforts
to
gain
access
to
the
property.
In
addition,
the
proposal
notes
that
the
mere
refusal
of
a
property
owner
to
allow
the
purchaser
to
have
access
to
the
property
does
not
constitute
an
unusual
circumstance,
absent
the
making
of
good
faith
efforts
to
otherwise
gain
93
access.
The
proposed
rule,
at
proposed
§
312.10,
would
define
"
good
faith"
as
"
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."

In
those
unusual
circumstances
where
a
purchaser
or
an
environmental
professional,
after
good
faith
efforts,
cannot
gain
access
to
a
property
and
therefore
cannot
conduct
an
on­
site
visual
inspection,
the
proposed
rule
would
require
that
the
property
be
visually
inspected,
or
observed,

by
another
method,
such
as
through
the
use
of
aerial
photography,
or
be
inspected,
or
observed,

from
the
nearest
accessible
vantage
point,
such
as
the
property
line
or
a
public
road
that
runs
through
or
along
the
property.
In
addition,
the
proposed
rule
would
require
that
the
all
appropriate
inquiries
report
includes
documentation
of
efforts
undertaken
by
the
purchaser
or
the
environmental
professional
to
obtain
on­
site
access
to
the
subject
property
and
includes
an
explanation
of
why
good
faith
efforts
to
gain
access
to
subject
property
were
unsuccessful.
The
proposed
rule
also
would
require
that
the
all
appropriate
inquiries
report
must
include
documentation
of
other
sources
of
information
that
were
consulted
to
obtain
information
necessary
to
achieve
the
proposed
objectives
and
performance
factors.
This
documentation
should
include
comments,
from
the
environmental
professional
who
signs
the
report,
regarding
any
significant
limitations
to
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
on,
at,
in,
or
to
the
subject
property,
that
may
arise
due
to
the
inability
of
the
purchaser
or
environmental
professional
to
obtain
on­
site
access
to
the
property.

In
addition,
in
those
limited
cases
where
an
on­
site
visual
inspection
cannot
be
conducted
prior
to
the
date
a
property
is
acquired,
EPA
recommends
that
once
a
property
is
purchased,
the
94
property
owner
conduct
an
on­
site
visual
inspection
of
the
property.
Such
an
inspection
may
provide
important
information
necessary
for
the
property
owner
to
fully
comply
with
the
other
statutory
provisions,
including
on­
going
obligations,
governing
the
CERCLA
liability
protections.

2.
Visual
inspections
of
adjoining
properties
The
proposed
rule,
at
proposed
§
312.27,
would
require
that
the
all
appropriate
inquiries
investigation
include
visual
inspections
or
observations
of
properties
that
adjoin
the
subject
property.
Visual
inspections
of
adjoining
properties
may
provide
excellent
information
on
the
potential
for
the
subject
property
to
be
affected
by
migrating
contamination
from
adjoining
properties.
The
Negotiated
Rulemaking
Committee
discussed
the
merits
and
legalities
of
requiring
parties
to
conduct
on­
site
visual
inspections
of
adjoining
properties.
Although
several
Committee
members
expressed
a
preference
for
visual
inspections
to
be
conducted
on­
site,
the
Committee
was
concerned
that
requiring
purchasers
or
environmental
professionals
to
gain
onsite
access
to
properties
adjoined
to
the
subject
property
would
not
be
practicable.
Therefore,
the
Committee
recommended
and
EPA
is
proposing
that
visual
observations
of
adjoining
properties
be
conducted
from
the
subject
property's
property
line,
one
or
more
public
rights­
of­
way,
or
other
vantage
point
(
e.
g.,
via
aerial
photography).
Where
practicable,
a
visual
on­
site
inspection
is
recommended
and
may
provide
greater
specificity
of
information.
The
proposed
rule
would
require
that
the
visual
observations
of
adjoining
properties
include
observing
areas
where
hazardous
substances
currently
may
be,
or
previously
may
have
been,
stored,
treated,
handled,
or
disposed.
Visual
inspections
or
observations
of
adjoining
properties
otherwise
also
must
be
conducted
to
achieve
the
proposed
objectives
and
performance
goals
for
the
all
appropriate
inquiries.
Physical
limitations
to
the
visual
inspections
or
observations
of
adjoining
properties
95
should
be
noted.

The
Agency
requests
comments
on
the
proposed
requirements
for
conducting
visual
inspections
of
the
subject
property
and
adjoining
properties,
including
the
proposed
exemption
from
the
on­
site
visual
inspection
requirement
in
cases
where
good
faith
efforts
result
in
an
ability
to
gain
access
to
a
property.

3.
Role
of
the
environmental
professional
in
the
visual
inspection
As
mentioned
in
section
III.
D.
4
of
this
preamble,
EPA
and
the
Negotiated
Rulemaking
Committee
considered
proposing
to
require
all
activities
in
the
all
appropriate
inquiries
investigation
to
be
conducted
by
persons
meeting
the
proposed
definition
of
an
environmental
professional.
Requiring
that
an
environmental
professional
conduct
all
activities
could
ensure
that
all
data
collection
and
investigations
are
conducted
in
a
manner
and
to
a
degree
of
specificity
that
allows
the
environmental
professional
to
make
best
use
of
all
information
in
forming
opinions
and
conclusions
regarding
the
environmental
conditions
at
a
property.
However,
after
careful
review
of
the
specific
activities
included
in
the
statutory
criteria
and
conducting
an
assessment
of
the
costs
and
burdens
of
such
a
requirement,
EPA
and
the
Committee
concluded
that
it
is
not
necessary
for
each
and
every
regulatory
requirement
to
be
conducted
by
an
environmental
professional.
As
outlined
in
section
III.
E.
1
of
this
preamble,
the
proposed
rule
would
allow
for
certain
aspects
of
the
inquiries
to
be
conducted
solely
by
the
purchaser
or
property
owner,
while
providing
that
all
other
aspects
be
conducted
under
the
supervision
or
responsible
charge
of
the
environmental
professional.
Among
the
activities
that
the
proposed
rule
would
require
to
be
conducted
under
the
supervision
or
responsible
charge
of
an
environmental
professional
is
the
on­
96
site
visual
inspection.

It
is
EPA's
recommendation
that
visual
inspections
of
the
subject
property
and
adjoining
properties
be
conducted
by
an
individual
who
meets
the
proposed
regulatory
definition
of
an
environmental
professional.
Although
many
other
aspects
of
the
all
appropriate
inquiries
may
be
conducted
sufficiently
and
accurately
by
individuals
other
than
an
environmental
professional
(
e.
g.,
a
research
associate
or
librarian
may
be
well
qualified
to
search
government
records,
an
attorney
may
be
well
qualified
to
conduct
a
search
for
an
environmental
lien),
EPA
believes
that
an
environmental
professional
is
best
qualified
to
conduct
a
visual
inspection
and
locate
and
interpret
information
regarding
the
physical
and
geological
characteristics
of
the
property
as
well
as
information
on
the
location
and
condition
of
equipment
and
other
resources
located
on
the
property.
EPA
recognizes
that
other
individuals
who
do
not
meet
the
proposed
regulatory
definition
of
an
environmental
professional,
particularly
when
these
individuals
are
conducting
such
activities
under
the
supervision
or
responsible
charge
of
an
environmental
professional,
may
have
the
required
skills
and
knowledge
to
conduct
an
adequate
on­
site
visual
inspection.

However,
EPA
believes
that
the
professional
judgment
of
an
individual
meeting
the
proposed
definition
of
an
environmental
professional
is
vital
to
ensuring
that
all
circumstances
at
the
property
indicative
of
environmental
conditions
and
potential
releases
or
threatened
releases
are
properly
identified
and
analyzed.
An
environmental
professional
is
best
qualified
for
identifying
such
situations
and
conditions
and
rendering
a
judgment
or
opinion
regarding
the
potential
existence
of
conditions
indicative
of
environmental
concerns.

An
environmental
professional
should,
at
a
minimum,
be
involved
in
planning
for
the
onsite
visual
inspection.
Information
collected
during
the
conduct
of
other
required
activities
such
97
as
interviews
with
owners
and
occupants
and
reviews
of
government
records
should
be
reviewed
in
preparing
for
the
on­
site
visual
inspection.
Although
the
proposed
rule
would
not
require
the
activities
proposed
as
part
of
all
appropriate
inquiries
investigation
to
be
done
in
any
particular
sequence,
EPA
recommends
that
the
on­
site
visual
inspection
occur
after
many
of
the
other
activities
are
completed
to
allow
the
environmental
professional
or
other
individuals
conducting
the
inspections
to
make
the
best
use
of
available
information
about
the
property
when
preparing
for
and
conducting
the
on­
site
visual
inspection.
For
example,
if
during
interviews
with
owners
and
occupants
of
the
property
or
during
the
review
of
government
records,
it
becomes
apparent
that
a
property
currently
used
for
general
retail
purposes
once
was
owned
by
individuals
issued
permits
for
the
storage
or
treatment
of
hazardous
wastes,
this
could
be
noted
during
the
preparation
for
the
on­
site
visual
inspection
and
the
persons
conducting
the
inspection
should
be
prepared
to
look
for
remaining
storage
units
or
evidence
of
conditions
caused
by
past
spills
or
releases
from
on­
site
management
units.
In
addition,
it
may
be
important
to
consider
any
specialized
knowledge
held
by
the
purchaser
or
the
environmental
professional
regarding
current
or
past
uses
and
ownership
of
the
property
prior
to
conducting
the
on­
site
visual
inspection.

L.
What
are
the
Proposed
Requirements
for
the
Inclusion
of
Specialized
Knowledge
or
Experience
on
the
Part
of
the
"
Defendant?"

Because
the
conduct
of
all
appropriate
inquiries
is
one
element
of
a
protection
against
CERCLA
liability,
and
the
situation
under
which
a
property
owner
may
need
to
assert
that
he
or
she
qualifies
for
liability
protection
is
when
the
property
owner
must
defend
his
or
her
status
as
an
innocent
landowner,
a
contiguous
property
owner,
or
a
bona
fide
prospective
purchaser,
the
98
statute
refers
to
the
property
owner,
or
the
user
of
the
all
appropriate
inquiries
investigation,
as
the
"
defendant."
The
Committee
believed,
and
EPA
agrees,
that
Congressional
intent
is
to
ensure
that
any
information
or
special
knowledge
held
by
the
purchaser
or
property
owner
with
regard
to
a
property
and
the
conditions
or
situations
present
at
the
subject
property
be
included
in
the
preacquisition
inquiries
and
be
considered,
along
with
all
information
collected
during
the
conduct
of
all
appropriate
inquiries,
when
an
environmental
professional
renders
a
judgment
or
opinion
regarding
the
presence
of
environmental
conditions
indicative
of
releases
or
potentials
releases
of
hazardous
substances
on,
at,
in,
or
to
the
subject
property.
This
information
should
be
revealed
to
all
parties
conducting
the
all
appropriate
inquiries
and
considered
earlier
in
the
inquiries
process
so
that
any
specialized
knowledge
may
be
taken
into
account
through
the
conduct
of
the
other
required
aspects
of
the
all
appropriate
inquiries.

Congress
first
added
the
innocent
landowner
defense
to
CERCLA
in
1986.
The
Brownfields
Amendments
amended
the
innocent
landowner
defense
and
added
to
CERCLA
the
bona
fide
prospective
purchaser
and
the
contiguous
property
owner
liability
protections
to
CERCLA
liability.
The
1986
amendments
to
CERCLA
established
that
among
other
elements
necessary
for
a
defendant
to
successfully
assert
the
innocent
landowner
defense,
a
defendant
must
demonstrate
that
he
or
she
had,
at
the
time
of
acquisition
of
the
property
in
question,
made
all
appropriate
inquiries
into
previous
ownership
and
uses
of
the
property.
Congress
directed
courts
evaluating
a
defendant's
showing
of
all
appropriate
inquiries
to
take
into
account,
among
other
things,
"
any
specialized
knowledge
or
experience
on
the
part
of
the
defendant."
Nothing
in
today's
proposed
rule
would
change
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986
or
in
how
the
courts
have
interpreted
the
requirement
to
date.
99
The
Negotiated
Rulemaking
Committee
decided
not
to
extend
the
proposed
requirements
for
the
consideration
of
any
specialized
knowledge
or
experience
of
the
property
owner
beyond
what
was
previously
required
under
CERCLA
and
established
through
case
law.
The
proposed
rule,
at
proposed
§
312.28,
would
require
that
all
appropriate
inquiries
include
specialized
knowledge
on
the
part
of
the
prospective
property
owner
of
the
subject
property,
the
area
surrounding
the
subject
property,
the
conditions
of
adjoining
properties,
as
well
as
other
experience
relative
to
the
inquiries
that
may
be
applicable
to
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
The
proposed
rule
also
would
require
that
the
results
of
the
inquiries
take
into
account
any
specialized
knowledge
related
to
the
property,

surrounding
areas,
and
adjoining
properties
held
by
the
persons
responsible
for
undertaking
the
inquiries,
including
any
specialized
knowledge
on
the
part
of
the
environmental
professional.

In
reviewing
existing
case
law
related
to
the
innocent
landowner
defense,
courts
appear
to
have
interpreted
the
"
specialized
knowledge"
factor
to
mean
that
the
professional
or
personal
experience
of
the
defendant
may
be
taken
into
account
when
analyzing
whether
the
defendant
made
all
appropriate
inquiries.
For
example,
in
Foster
v.
United
States,
922
F.
Supp.
642
(
D.

D.
C.
1996),
the
owner
of
a
property
formerly
owned
by
the
General
Services
Administration
and
contaminated
by,
among
other
things,
lead,
mercury
and
PCBs,
brought
an
action
against
the
United
States
and
District
of
Columbia,
prior
owners
or
operators
of
the
site.
The
plaintiff
was
a
principal
in
Long
&
Foster
companies
and
purchased
the
property
through
a
general
partnership,

and
received
it
by
quitclaim
deed.
The
U.
S.
and
D.
C.
counterclaimed
against
plaintiff.
Foster
asserted
the
innocent
landowner
defense.
The
court
rejected
the
plaintiff's
claim
based
in
part
on
the
defendant's
specialized
knowledge.
The
court
found
that
his
specialized
knowledge
included
100
his
position
at
Long
&
Foster,
which
did
hundreds
of
millions
of
dollars
of
commercial
real
estate
transactions,
and
his
position
as
a
partner
in
at
least
15
commercial
real
estate
partnerships.
The
partnership
was
involved
as
an
investor
in
a
number
of
real
estate
transactions,
some
of
which
involved
industrial
or
commercial
or
mixed­
use
property.
The
court
ruled
that
"
it
cannot
be
said
that
[
the
partnership]
is
a
group
unknowledgeable
or
inexperienced
in
commercial
real
estate
transactions."
Foster,
922
F.
Supp.
at
656.

In
American
National
Bank
and
Trust
Co.
of
Chicago
v.
Harcros
Chemicals,
Inc.,
1997
WL
281295
(
N.
D.
Ill.
1997),
the
plaintiff
was
a
company
"
involved
in
brownfields
development,

purchasing
environmentally
distressed
properties
at
a
discount,
cleaning
them
up,
and
selling
them
for
a
profit."
American
National
Bank,
1997
WL
281295
at
*
4.
As
a
counter­
claim
defendant,

the
company
asserted
it
was
an
innocent
landowner
and
therefore
not
liable
pursuant
to
CERCLA.
The
court
found
that
among
other
reasons
the
defense
failed
because
the
company
possessed
specialized
knowledge.
The
court
ruled
that
the
company
was
an
expert
environmental
firm
and
possessed
knowledge
that
should
have
alerted
it
to
the
potential
problems
at
the
site.

EPA
points
out
that
the
proposed
rule
requires
that
the
specialized
knowledge
of
prospective
landowners
and
the
persons
responsible
for
undertaking
the
all
appropriate
inquiries
be
taken
into
account
when
conducting
the
all
appropriate
inquiries
for
the
purposes
of
identifying
conditions
indicative
of
releases
or
threatened
releases
at
a
property.
However,
as
evidenced
by
the
case
law
cited
above,
the
determination
of
whether
or
not
the
all
appropriate
inquiries
standard
is
met
with
regard
to
specialized
knowledge
remains
within
the
discretion
of
the
courts.

The
Agency
requests
comments
on
the
proposed
provisions
governing
the
inclusion
of
specialized
knowledge
or
experience
on
the
part
of
the
purchaser
and
the
environmental
101
professional.

M.
What
are
the
Proposed
Requirements
for
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property,
if
the
Property
was
not
Contaminated?

The
proposed
rule,
at
§
312.29,
would
require
that
the
purchaser
of
the
property
consider
whether
or
not
the
purchase
price
paid
for
the
property
reflects
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
There
may
be
many
reasons
that
the
price
paid
for
a
particular
property
is
not
an
accurate
reflection
of
the
fair
market
value.
The
proposed
rule
would
require
that
the
purchaser
consider
whether
any
differential
between
the
purchase
price
and
the
value
of
the
property
is
due
to
the
presence
of
releases
or
threatened
releases
of
hazardous
substances
at
the
property.

The
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion.
Although
the
Negotiated
Rulemaking
Committee
discussed
the
potential
value
in
requiring
that
an
appraisal
be
conducted,
the
Committee
determined
that
a
formal
appraisal
is
not
necessary
for
the
purchaser
to
make
a
general
determination
of
whether
the
price
paid
for
a
property
reflects
its
market
value.
Such
a
determination
may
be
made
by
comparing
the
price
paid
for
a
particular
property
to
prices
paid
for
similar
properties
located
in
the
same
vicinity
as
the
subject
property,
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
and
who
may
be
able
to
provide
a
comparability
analysis.
The
objective
is
not
to
ascertain
the
exact
value
of
the
property,
but
to
determine
whether
or
not
the
purchase
price
paid
for
the
property
is
reflective
of
its
market
value.
Significant
differences
in
the
purchase
price
and
market
value
of
a
property
should
be
noted
and
the
reasons
for
any
differences
102
should
be
noted.
The
Agency
requests
comments
on
these
proposed
requirements.

N.
What
are
the
Proposed
Requirements
for
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property?

The
proposed
rule,
at
proposed
§
312.30,
would
require
that
landowners,
brownfields
grantees,
and
environmental
professionals
conducting
the
all
appropriate
inquiries
consider
commonly
known
information
about
the
potential
environmental
conditions
at
a
property.

Commonly
known
information
generally
is
information
available
in
the
local
community
that
may
be
ascertained
from
the
owner
or
occupant
of
a
property,
members
of
the
local
community,

including
owners
or
occupants
of
neighboring
properties
to
the
subject
property,
local
or
state
government
officials,
local
media
sources,
and
local
libraries
and
historical
societies.
Much
of
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
but
such
information
may
be
valuable
to
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
For
example,
neighboring
property
owners
and
local
community
members
may
have
information
regarding
undocumented
uses
of
a
property
during
periods
when
the
property
was
idle
or
abandoned.
Local
community
sources
may
be
good
sources
of
information
for
understanding
uses
of
a
property
and
activities
conducted
at
a
property
in
the
case
of
abandoned
properties.

The
collection
and
use
of
commonly
known
information
about
a
property
must
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
proposed
objectives
and
performance
factors
contained
in
proposed
§
312.20.
EPA
recommends
that
persons
undertaking
the
all
appropriate
inquiries
make
efforts
to
collect
information
on
the
103
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
of
§
312.20(
d)
and
(
e).
Opinions
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected.
All
information
collected,
including
information
available
from
the
local
community,
should
be
considered
in
the
final
evaluation.

As
mentioned
above
in
section
III.
K.,
the
Brownfields
Amendments
to
CERCLA
amended
the
innocent
landowner
defense
previously
added
to
CERCLA
in
1986.
In
addition,
the
Brownfields
Amendments
added
to
CERCLA
the
bona
fide
prospective
purchaser
and
the
contiguous
property
owner
liability
protections
to
the
statute.
The
1986
amendments
to
CERCLA
established
that
among
other
elements
necessary
for
a
defendant
to
successfully
assert
the
innocent
landowner
defense,
a
defendant
must
take
into
account
commonly
known
or
reasonably
ascertainable
information
about
the
property.
Nothing
in
today's
proposed
rule
would
change
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986
or
in
how
the
courts
have
interpreted
the
requirement
to
date.

There
is
some
case
law,
related
to
the
innocent
landowner
defense,
that
provide
guidance
for
considering
commonly
known
or
reasonably
ascertainable
information
about
the
property.
For
example,
in
Wickland
Oil
Terminals
v.
Asarco,
Inc.,
1988
WL
167247
(
N.
D.
Cal.
1988),
the
court
noted
that
Wickland
was
aware
of
potential
water
quality
problems
at
the
subject
property
due
to
large
piles
of
mining
slag
stored
at
the
property,
even
though
Wickland
argued
that
previous
owners
withheld
such
information,
because
the
information
was
available
from
other
sources
consulted
by
Wickland
prior
to
purchasing
the
property,
including
the
Regional
Water
Quality
Control
Board
and
a
consulting
firm
hired
by
Wickland.
Such
information
was
commonly
known
104
by
local
sources
and
therefore
should
have
been
considered
by
Wickland
during
its
conduct
of
all
appropriate
inquiries.

In
Hemingway
Transport
Inc.
v.
Kahn,
174
F.
R.
148
(
Bankr.
D.
Mass.
1994),
the
court
ruled
against
an
innocent
landowner
claim
because
it
found
"
that
had
[
the
defendants]
exerted
a
modicum
of
effort
they
may
easily
have
discovered
information
that
at
a
minimum
would
have
compelled
them
to
inspect
the
property
further...
the
[
defendants]
could
have
taken
a
few
significant
steps,
literally,
to
minimize
their
liability
and
discover
information
about
the
property..."
The
court
cited
that
one
action
the
defendants
should
have
taken
to
collect
available
information
about
the
property
is
phone
calls
to
city
officials
to
inquire
about
conditions
at
the
property.

EPA
requests
comment
on
the
proposed
requirements
for
including
within
the
all
appropriate
inquiries
commonly
known
or
reasonably
ascertainable
information
about
the
property.

O.
What
are
the
Proposed
Requirements
for
"
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?"

The
proposed
rule,
at
§
312.31,
would
require
that
persons
conducting
the
all
appropriate
inquiries
consider
all
the
information
collected
during
the
conduct
of
the
inquiries
in
totality
to
ascertain
the
potential
presence
of
a
release
or
threatened
release
at
the
property.
Persons
conducting
all
appropriate
inquiries,
following
the
collection
of
all
required
information,
must
assess
whether
or
not
an
obvious
conclusion
may
be
drawn
that
there
are
conditions
indicative
of
105
a
release
or
threatened
release
of
hazardous
substances
(
or
other
substances,
pollutants
or
contaminants)
on,
at,
in,
or
to
the
property.
In
addition,
the
proposed
rule
would
require
parties
to
consider
whether
or
not
the
totality
of
information
collected
prior
to
acquiring
the
property
indicates
that
the
parties
should
be
able
to
detect
a
release
or
threatened
release
on,
at,
in,
or
to
the
property.
Persons
should
undertake
these
considerations
keeping
in
mind
that
ultimately
it
is
for
a
court
to
assess
the
degree
of
obviousness
of
contamination.

The
previous
innocent
landowner
defense
(
added
to
CERCLA
in
1986)
required
a
court
to
consider
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
a
property,
and
the
ability
of
the
defendant
(
i.
e.,
the
landowner)
to
detect
the
contamination
by
appropriate
investigation.
Nothing
in
today's
proposed
rule
would
change
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986
or
in
how
the
courts
have
interpreted
the
requirement
to
date.
Case
law
relevant
to
this
criterion
indicates
that
defendants
may
not
be
able
to
claim
an
innocent
landowner
defense
if
a
preponderance
of
information
available
to
a
prospective
landowner
prior
to
acquiring
the
property
indicates
that
the
defendant
should
have
concluded
that
there
is
a
high
likelihood
of
contamination
at
the
site.
In
some
cases
(
e.
g.,

Hemingway
Transport
Inc.
v.
Kahn,
174
F.
R.
148
(
Bankr.
D.
Mass.
1994),
and
Foster
v.
United
States,
922
F.
Supp.
642
(
D.
D.
C.
1996),
courts
have
ruled
that
if
a
defendant
had
done
a
bit
more
visual
inspection
or
further
investigation,
based
upon
information
available
to
the
defendant
prior
to
acquiring
the
property,
it
would
have
been
obvious
that
the
property
was
contaminated.
In
Foster
v.
United
States,
the
court
determined
that
the
innocent
landowner
defense
was
not
available
based
in
part
on
the
fact
that
the
partnership
presumed
the
site
was
free
of
contamination
based
upon
cursory
visual
inspections
despite
evidence
in
the
record
that,
at
the
time
of
the
sale,
106
the
soil
was
visibly
stained
by
PCB­
contaminated
oil.
In
addition,
although
the
property
was
located
in
a
run­
down
industrial
area,
the
defendant
did
no
investigation
into
the
environmental
conditions
at
the
site
prior
to
acquiring
the
property.

With
regard
to
the
conduct
of
sampling
and
analysis,
today's
proposed
rule
would
not
require
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
investigation.
However,

members
of
the
Committee
recognized
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
In
addition,
the
fact
that
the
all
appropriate
inquiry
standards
would
not
require
sampling
and
analysis
may
not
prevent
a
court
from
concluding
that,
under
the
circumstances
of
a
particular
case,
sampling
and
analysis
should
have
been
conducted
to
meet
"
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"
criterion
and
obtain
protection
from
CERCLA
liability.
Prospective
landowners
should
keep
in
mind
that
the
conduct
of
all
appropriate
inquiries
prior
to
purchasing
a
property
is
only
one
requirement
to
which
a
purchaser
must
comply
to
claim
protection
from
CERCLA
liability
once
the
purchase
has
taken
place.
The
statute
requires
that
persons,
after
acquiring
a
property,
comply
with
continuing
obligations
to
take
reasonable
steps
to
stop
on­
going
releases
at
the
property,
prevent
any
threatened
future
releases,
and
prevent
or
limit
any
human,

environmental,
or
natural
resource
exposure
to
any
previously
released
hazardous
substances
(
these
criteria
are
summarized
in
detail
in
section
II.
D.
of
this
preamble).
In
certain
instances,

depending
upon
site­
specific
circumstances
and
the
totality
of
the
information
collected
during
the
all
appropriate
inquiries
prior
to
the
property
acquisition,
it
may
be
necessary
to
conduct
sampling
and
analysis,
either
pre­
or
post­
acquisition,
to
fully
understand
the
conditions
at
a
property,
and
107
fully
comply
with
the
statutory
requirements
for
the
CERCLA
liability
protections.
In
addition,

sampling
and
analysis
may
help
explain
existing
data
gaps.
Prospective
purchasers
should
be
mindful
of
all
the
statutory
requirements
for
obtaining
the
CERCLA
liability
protections
when
considering
whether
or
not
to
conduct
sampling
and
analysis
and
when
determining
whether
to
undertake
sampling
and
analysis
prior
to
or
after
acquiring
a
property.
Today's
proposed
regulation
does
not
require
that
sampling
and
analysis
be
conducted
as
part
of
the
all
appropriate
inquiries
that
must
be
conducted
prior
to
acquiring
a
property.

The
Agency
requests
comments
on
the
proposed
requirements
for
meeting
the
statutory
provisions
for
including
within
the
all
appropriate
inquiries
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.
The
Agency
also
specifically
requests
comments
on
the
decision
not
to
require
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
regulations.

IV.
Requests
for
Comments
EPA
is
requesting
comment
on
the
standards
and
practices
included
as
part
of
today's
proposed
rule.
Public
comments
may
be
submitted
to
the
Agency
electronically
or
by
mail,
as
explained
in
the
SUPPLEMENTARY
INFORMATION
section
of
this
preamble.
As
explained
in
that
section,
the
Agency
requests
that
when
submitting
comments,
please
state
your
views
as
clearly
as
possible,
describe
any
assumptions
applicable
to
your
comments,
provide
any
technical
information
and
data
that
support
your
views,
and
provide
specific
examples
to
illustrate
your
concerns.
Specifically,
the
Agency
is
interested
in
receiving
public
comment
on
the
following:
108
°
The
proposed
requirements
for
an
all
appropriate
inquiries
report,
including
the
signature
requirements
for
the
all
appropriate
inquiries
report.

°
The
proposed
qualifications
included
in
the
definition
of
an
environmental
professional
and
the
provisions
allowing
for
individuals
who
do
not
qualify
as
environmental
professionals
to
contribute
to
inquiry
activities.

°
The
proposed
division
of
responsibilities
for
conducting
all
appropriate
inquiries.

°
The
proposal
to
establish
the
date
on
which
title
is
transferred
on
a
property
as
the
date
on
which
the
property
is
acquired.

°
The
proposed
provisions
for
using
previously
conducted
all
appropriate
inquiries.

°
The
proposed
requirements
for
using
all
appropriate
inquiries
conducted
by
third
parties.

°
The
proposed
objectives
and
performance
factors
for
the
all
appropriate
inquiries
requirements.

°
The
proposed
provisions
for
addressing
data
gaps.

°
The
proposal
to
not
require
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
standards.

°
The
proposed
standards
for
conducting
interviews
of
past
and
present
owners
and
occupants
of
a
property.

°
The
proposed
requirements
to
interview
owners
or
occupants
of
neighboring
properties
in
the
case
of
abandoned
properties.

°
The
proposed
standards
for
reviews
of
historical
sources
of
information.

°
The
proposed
standards
for
searching
for
recorded
environmental
cleanup
liens.

°
The
proposed
standards
for
reviewing
federal,
state,
tribal
and
local
government
records.
109
°
The
proposed
requirements
for
conducting
visual
inspections
of
the
subject
property
and
adjoining
properties,
including
the
limited
exemption
from
conducting
an
on­
site
inspection
when
good
faith
efforts
result
in
an
inability
to
obtain
access
to
a
property.

°
The
proposed
provisions
governing
the
inclusion
of
specialized
knowledge
or
experience
on
the
part
of
the
purchaser
and
the
environmental
professional.

°
The
proposed
requirements
for
considering
the
relationship
of
the
purchase
price
to
the
value
of
a
property,
if
the
property
was
not
contaminated.

°
The
proposed
requirements
for
commonly
known
or
reasonably
ascertainable
information
about
the
property.

°
The
proposed
requirements
for
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.

°
The
proposed
information
collection
requirements,
including
the
need
for
such
information,
the
accuracy
of
the
provided
burden
estimates
associated
with
the
requirements,
and
any
suggested
methods
for
minimizing
respondent
burden,
including
through
the
use
of
automated
collection
techniques.

°
The
methodology
used
to
estimate
the
costs
and
impacts
of
today's
proposed
rule,

including
the
estimated
incremental
labor
hours
used
to
estimate
the
incremental
cost
of
the
proposed
rule.

°
The
methodology
employed
to
identify
impacted
small
entities
and
estimating
the
potential
impacts
on
small
entities.

°
The
identification
of
voluntary
consensus
standards
that
are
applicable
to
and
compliant
110
with
today's
proposed
standards
and
practices
for
all
appropriate
inquiries.

V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735),
the
Agency
must
determine
whether
this
regulatory
action
is
"
significant''
and
therefore
subject
to
formal
review
by
the
Office
of
Management
and
Budget
(
OMB)
and
to
the
requirements
of
the
Executive
Order.
The
Executive
Order
defines
"
significant
regulatory
action''
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)

have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,

public
health
or
safety,
or
state,
local,
or
tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)

materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
today's
proposed
rule
is
a
"
significant
regulatory
action"
because
this
proposed
rule
contains
novel
legal
or
policy
issues.

Based
upon
the
results
of
its
Economic
Impacts
Analysis
(
EIA),
EPA
has
determined
that
this
proposed
rule
will
have
an
annual
effect
on
the
economy
of
less
than
$
100
million.
The
annualized
benefits
associated
with
today's
proposed
rule
have
not
been
monetized
but
are
identified
and
summarized
in
the
document
titled
"
Economic
Impacts
Analysis
for
the
Proposed
111
All
Appropriate
Inquiries
Regulation."
A
copy
of
the
EIA
is
available
in
the
docket
for
today's
proposed
rule.
The
Agency
solicits
comment
on
the
methodology
and
results
from
the
analysis
as
well
as
any
data
that
the
public
believes
would
be
useful
in
a
revised
analysis.

24.
Methodology
The
value
of
any
regulatory
action
is
traditionally
measured
by
the
net
change
in
social
welfare
that
it
generates.
The
Economic
Impacts
Analysis
(
EIA)
conducted
in
support
of
today's
proposed
rule
examines
both
costs
and
qualitative
benefits
in
an
effort
to
assess
the
overall
net
change
in
social
welfare.
The
primary
focus
of
the
EIA
document
is
on
compliance
costs
and
economic
impacts.
Below,
EPA
summarizes
the
analytical
methodology
and
findings
for
the
proposed
all
appropriate
inquiries
rule.
The
information
presented
is
derived
from
the
EIA.

The
all
appropriate
inquiries
regulation
potentially
will
apply
to
most
commercial
property
transactions.
The
requirements
will
be
applicable
to
any
public
or
private
party,
who
may
potentially
claim
protection
from
CERCLA
liability
as
an
innocent
landowner,
a
bona
fide
prospective
purchaser,
or
a
contiguous
property
owner.
However,
the
conduct
of
all
appropriate
inquiries,
or
environmental
due
diligence,
is
not
new
to
the
commercial
property
market.
Prior
to
the
Brownfields
Amendments
to
CERCLA,
commercial
property
transactions
often
included
an
assessment
of
the
environmental
conditions
at
properties
prior
to
the
closing
of
any
real
estate
transaction
whereby
ownership
was
acquired
for
the
purposes
of
confirming
the
conditions
at
the
property
or
to
establish
an
innocent
landowner
defense
should
environmental
contamination
be
discovered
after
the
property
was
acquired.
The
process
most
prevalently
used
for
conducting
all
appropriate
inquiries,
or
environmental
site
assessments,
is
the
process
developed
by
the
American
Society
for
Testing
and
Materials
(
ASTM)
and
entitled
"
E1527,
Phase
I
Environmental
112
Site
Assessment
Process."
In
addition,
some
properties,
particularly
in
cases
where
the
subject
property
is
assumed
not
to
be
contaminated
or
was
never
used
for
industrial
or
commercial
purposes,
were
assessed
using
another,
less
rigorous
process
developed
by
ASTM,
sometimes
referred
to
as
a
"
transaction
screen"
and
entitled
"
E1528
Standard
Practice
for
Environmental
Site
Assessments:
Transaction
Screen
Process."

Our
first
step
in
assessing
the
economic
impacts
of
the
proposed
rule
was
establishing
a
baseline
to
represent
the
relevant
aspects
to
the
commercial
real
estate
market
in
the
absence
of
any
changes
in
regulations.
Because
under
existing
conditions
almost
all
transactions
concerning
commercial
properties
are
accompanied
by
either
an
environmental
site
assessment
(
ESA)

conducted
in
accordance
with
ASTM
E1527­
2000
or
a
transaction
screen
as
specified
in
ASTM
E1528,
these
practices
were
assumed
to
continue
even
in
the
absence
of
the
all
appropriate
inquiries
regulation.
The
numbers
of
each
type
of
assessment
were
estimated
on
the
basis
of
industry
data
for
recent
years,
with
recent
growth
rates
in
transactions
assumed
to
continue
for
the
10
year
period
covered
by
the
EIA.
An
adjustment
in
the
relative
numbers
of
the
ESAs
and
transaction
screens
was
made
to
account
for
the
fact
that,
under
the
proposed
rule,
an
ESA
will
provide
more
certain
protection
from
liability.
This
adjustment
was
made
by
comparing
shifts
between
the
two
procedures
that
occurred
when
the
Brownfields
Amendments
established
the
ASTM
E1527­
2000
standard
as
the
interim
standard
for
all
appropriate
inquiries,
and
thus
as
one
requirement
for
qualifying
as
an
innocent
landowner,
bona
fide
purchaser,
or
contiguous
property
owner.

We
then
considered
the
requirements
included
in
the
recommendation
of
the
Negotiated
Rulemaking
Committee
and
those
included
in
a
few
options
that
the
committee
considered
but
did
113
not
adopt,
as
well
as
an
additional
option,
at
the
request
of
the
Office
of
Management
and
Budget
(
OMB),
and
compared.
We
then
compared
the
costs
of
each
alternative
option
to
the
requirements
for
forcosts
associated
with
conducting
assessments
conducted
under
using
the
ASTM
E1527­
2000
and
ASTM
E1528.
standard..
When
We
present
this
cost
comparison
to
comply
with
current
OMB
guidance
to
consider
a
less
stringent
alternative
than
the
Agency's
preferred
alternative
when
conducting
an
economic
impacts
assessment.
As
explained
in
section
V.
I.,
EPA
has
determined
that
the
ASTM
E1527­
2000
standard
is
inconsistent
with
applicable
law.
However,
the
alternative
is
included
in
the
economics
assessment
for
cost
comparison
purposes.

When
compared
to
the
ASTM
E1527­
2000
standard
(
i.
e.,
the
baseline
standard),
today's
proposed
rule
is
documenting
recorded
environmental
cleanup
liens;
increased
burden
for
documenting
the
reasons
for
the
price
and
market
value
of
a
property
in
those
cases
where
the
purchase
price
paid
for
the
subject
property
is
significantly
below
the
market
value
of
the
property;
and
increased
burden
for
recording
information
about
the
degree
of
obviousness
of
contamination
at
a
property.
The
three
regulatory
options
that
were
considered
by
the
Negotiated
Rulemaking
Committee
but
not
adopted
would
have
required:
(
1)
all
non­
clerical
work
to
be
performed
by
an
individual
meeting
the
proposed
definition
of
an
environmental
professional;
(
2)
no
requirement
to
interview
owners/
occupants
of
neighboring
properties
when
the
subject
property
is
abandoned;
and
(
3)

limited
soil
or
water
sampling.
An
additional
option
is
presented
in
the
EIA
for
the
proposed
rule
to
comply
with
guidance
recently
issued
by
OMB.
OMB
"
Circular
A­
4"
requires
that
agencies
3
The
distribution
of
abandoned
properties
and
properties
with
known
owners,
modeled
as
a
range,
is
based
on
an
estimate
of
vacant
lands
in
urban
areas
and
an
estimate
of
abandoned
Superfund
sites.

114
analyze
a
continuum
of
regulatory
options,
including
a
regulatory
alternative
that
is
less
stringent
than
an
agency's
preferred
alternative.
To
fully
comply
with
the
OMB
guidance,
and
at
the
request
of
OMB,
the
EIA
includes
a
comparison
of
the
cost
impacts
of
our
preferred
option
and
the
other
options
considered
by
the
Negotiated
Rulemaking
Committee
to
an
option
that
would
entail
using
the
ASTM
E1527­
2000
standard
as
the
federal
regulation.
As
explained
in
more
detail
below,
it
is
EPA's
opinion
that
the
ASTM
E1527­
2000
standard
is
not
compliant
with
the
statutory
requirements
for
all
appropriate
inquires,
and
therefore
if
adopted
may
not
provide
the
benefits
of
the
CERCLA
liability
protections.
However,
the
option
is
provided
in
the
EIA
for
the
purposes
of
a
cost
comparison.

To
estimate
the
changes
in
costs
resulting
from
the
rule
or
the
regulatory
options,
we
developed
a
costing
model.
This
model
estimates
the
total
costs
of
conducting
site
assessments
as
the
product
of
costs
per
assessment,
numbers
of
assessments
per
year,
and
the
number
of
years
in
the
analysis.
The
costs
per
assessment,
in
turn,
are
calculated
by
dividing
each
assessment
into
individual
labor
activities,
estimating
the
labor
time
associated
with
each,
and
assigning
a
per­
hour
labor
cost
to
each
activity
on
the
basis
of
the
labor
category
most
appropriate
to
that
activity.

Labor
times
and
categories
are
assumed
to
depend
on
the
size
and
type
of
property
being
assessed,
with
the
nationwide
distribution
of
properties
based
on
data
from
industry
on
environmental
sites
assessments
and
brownfield
sites.
3
The
estimates
and
assignments
of
categories
are
made
based
on
the
experience
of
professionals
who
have
been
involved
in
large
numbers
of
site
assessments,
and
who
are
therefore
skilled
in
cost
estimation
for
the
relevant
115
activities.
Other
costs,
such
as
reproduction
and
the
purchase
of
data,
are
added
to
the
labor
costs
to
form
the
estimates
of
total
costs
per
assessment.
These
total
costs,
stratified
by
size
and
type
of
property,
are
then
multiplied
by
estimated
numbers
of
assessments
of
each
size
and
type
to
generate
our
estimates
of
total
annual
costs.
The
model
was
tested
by
comparing
its
results
to
industry­
wide
estimates
of
average
price
of
conducting
assessments
under
baseline
conditions,
and
found
to
agree
quite
well.
We
also
used
the
model
to
estimate
total
costs
per
year
under
the
proposed
rule
and
each
option;
the
differences
between
these
estimated
costs
and
the
estimated
costs
in
the
baseline
constituted
our
estimates
of
the
incremental
regulatory
costs.
EPA
requests
comments
on
our
methodology
for
estimating
the
costs
and
impacts
of
today's
proposed
rule,

including
comments
on
our
estimates
of
the
incremental
labor
hours
necessary
to
conduct
activities
required
by
the
proposed
rule
but
not
currently
conducted
using
the
baseline
standard
(
i.
e.,
ASTM
E1527­
2000).

The
EIA
provides
a
qualitative
assessment
of
the
benefits
of
the
proposed
rule.
The
benefits
discussed
are
those
that
may
be
attributed
to
an
increased
level
of
certainty
with
regard
to
CERCLA
liability
provided
to
prospective
purchasers
of
potentially
contaminated
properties,

including
brownfields,
who
comply
with
the
provisions
of
the
proposed
rule
and
comply
with
the
other
statutory
provisions
associated
with
the
liability
protections.
Our
basic
premise
for
associating
certain
benefits
to
the
proposed
rule
is
that
we
believe
that
the
level
of
certainty
provided
by
the
liability
protections
may
result
in
increased
brownfields
property
transactions.

However,
it
is
difficult
to
predict
how
many
additional
transactions
may
occur
that
involve
brownfields
properties
in
response
to
the
increased
certainty
of
the
liability
protections.
It
also
is
difficult
to
obtain
data
on
changes
in
behaviors
and
practices
of
prospective
property
owners
in
116
response
to
the
liability
protections.
Therefore,
we
made
no
attempt
to
quantify
potential
benefits
or
compare
the
benefits
to
estimated
incremental
costs.

The
Agency
believes
that
the
increased
level
of
certainty
with
regard
to
CERCLA
liability
provided
by
complying
with
the
proposed
rule
and
other
statutory
requirements
may
have
the
affect
of
increasing
property
transactions
involving
brownfields
and
other
contaminated
and
potentially­
contaminated
properties
and
improving
information
about
environmental
conditions
at
these
properties.
The
types
of
indirect
benefits
that
we
believe
may
result
from
this
increase
in
the
number
of
transactions
involving
these
types
of
properties
include
increased
numbers
of
cleanups,
reduced
use
of
greenfields,
potential
increases
in
property
values,
and
potential
increases
in
quality
of
life
measures
(
e.
g.,
decreases
in
urban
blight,
reductions
in
traffic,

congestion,
and
reduced
pollution
due
to
mobile
source
emissions).
However,
as
stated
above,

the
benefits
of
the
proposed
rule
are
considered
only
qualitatively,
due
to
the
difficulty
of
predicting
how
many
additional
brownfields
and
contaminated
property
transactions
may
occur
in
response
to
the
increased
certainty
of
liability
protections
provided
by
the
proposed
rule,
as
well
as
the
difficulty
in
getting
data
on
changes
in
behaviors
and
practices
in
response
to
the
availability
of
the
liability
protections.
EPA
is
confident
that
the
new
liability
protections
afforded
to
prospective
property
owners,
if
they
comply
with
the
all
appropriate
inquiries
provisions,
will
result
in
increased
benefits.
EPA
is
not
able
to
quantify,
with
any
significant
level
of
confidence,

the
exact
proportion
of
the
benefits
attributed
only
to
the
availability
of
the
liability
protections
and
the
all
appropriate
inquiries
regulations.
For
these
reasons,
the
costs
and
benefits
could
not
be
directly
compared.
117
25.
Summary
of
Regulatory
Costs
For
a
given
property,
the
costs
of
compliance
with
the
proposed
rule
relative
to
the
baseline
depend
on
whether
that
property
would
have
been
assessed,
in
absence
of
the
all
appropriate
inquiries
regulation,
with
an
ASTM
E1527­
2000
assessment
process
or
with
a
simpler
transaction
screen
(
ASTM
E1528).
The
table
below
shows
that
the
average
incremental
cost
of
the
proposed
rule
relative
to
conducting
an
ASTM
E1527­
2000
is
estimated
to
be
between
$
41
and
$
47.
For
the
small
percentage
of
cases
for
which
a
transaction
screen
would
have
been
preferred
to
the
ASTM
E1527­
2000
in
the
baseline,
but
which
now
would
require
an
assessment
in
compliance
with
the
proposed
rule,
the
average
incremental
cost
is
estimated
to
be
between
$
1,448
and
$
1,454.
We
estimate
that
approximately
97
percent
of
property
transactions
will
bear
only
the
incremental
cost
of
the
proposed
rule
relative
to
the
ASTM
E1527­
2000
process.

Therefore,
the
weighted
average
incremental
cost
per
transaction
is
estimated
to
be
fairly
low,

between
$
84
and
$
89.

The
three
regulatory
options
considered
by
the
Negotiated
Rulemaking
Committee,
but
not
recommended,
would
result
in
higher
incremental
costs
from
the
base
case.
Option
1,
which
would
require
all
of
the
non­
clerical
tasks
in
the
all
appropriate
inquiries
to
be
performed
by
an
individual
meeting
the
definition
of
environmental
professional,
would
add
an
average
of
$
539
per
property
assessment
(
or
approximately
$
1,946
per
property,
assuming
a
transition
from
a
transaction
screen).

EPA
estimates
that
the
incremental
cost
of
Option
2,
or
the
incremental
cost
of
incorporating
all
the
additional
aspects
of
118
the
proposed
rule,
over
the
baseline,
except
for
the
neighboring
property
owners/
occupants
interview
requirement
for
abandoned
properties,
would
be
$
54
per
assessment
(
or
$
1,460
per
property,
assuming
a
transition
from
a
transaction
screen).
Option
3,
which
would
require
the
all
appropriate
inquiries
to
include
limited
sampling
and
analysis,
would
result
in
average
incremental
costs
of
either
$
1,439
or
$
2,845,
depending
on
whether,
under
baseline
conditions,
an
ASTM
E1527­
2000
process
or
a
transaction
screen
(
ASTM
E1528)
would
have
been
used.
The
OMB­
requested
alternative
of
using
the
ASTM
E1527­
2000
standard
as
the
federal
regulation
would
result
in
no
($
0)
incremental
cost
per
property
assessment
(
or,
on
average,
$
1,407
per
property,
assuming
a
transition
from
a
transaction
screen).
We
note,
however,
that
EPA
has
found
that
the
ASTM
E1527­
2000
standard
is
inconsistent
with
the
statutory
requirements
for
all
appropriate
inquiries.

Summary
of
Incremental
Per­
Assessment
Cost
Estimates
Average
Incremental
Cost
Relative
to
Phase
I
ESA
under
ASTM
E1527­
2000
(
97%
of
transactions)
Average
Incremental
Cost
for
Transition
from
Transaction
Screen
(
under
ASTM
E1528)
(
3%
of
transactions)
Proposed
AAI
Rule
$
41
­
$
47
$
1,448
­
$
1,454
Option
1
 
Environmental
Professional
Only
$
539
$
1,946
Option
2
 
Unchanged
Interview
Requirement
$
54
$
1,460
Option
3
 
Limited
Sampling
$
1,439
$
2,845
OMB
Option
 
ASTM
E1527­
2000
$
0
$
1,407
The
total
annualized
costs
of
the
proposed
rule
and
the
four
additional
options
considered,
in
total
and
relative
to
the
base
case,
are
shown
in
the
exhibit
below.
The
total
costs
were
calculated
over
a
period
of
ten
years
from
the
start
of
2004
and
then
annualized
at
a
three
119
and
seven
percent
discount
rate.
When
a
discount
rate
of
three
percent
is
used,
the
estimated
total
annual
costs
for
the
options
considered
by
the
Negotiated
Rulemaking
Committee
range
from
just
under
$
700
million
to
over
$
1
billion
per
year,
compared
to
the
baseline
costs
of
$
663.8
million
and
the
costs
associated
with
the
option
of
using
the
ASTM
E1527­
2000
standard
of
over
$
677
million.
The
proposed
regulation
adds
between
$
26
and
$
28
million
per
year,
while
the
incremental
costs
association
with
the
options
considered
by
the
Negotiated
Rulemaking
Committee
range
from
$
30
million
to
almost
$
460
million
per
year.
The
incremental
cost
of
the
OMB
alternative
of
using
the
ASTM
1527­
2000
standard
is
over
$
13
million.
When
a
discount
rate
of
seven
percent
is
used,
the
estimated
total
annual
costs
for
the
options
considered
by
the
Negotiated
Rulemaking
Committee
range
from
$
710
million
to
over
$
1
billion
per
year,
compared
to
the
baseline
costs
of
$
683.5
million
and
the
costs
associated
with
using
the
OMB
optionASTM
E1527
standard
of
over
$
697
million.
The
proposed
regulation
adds
between
$
27
and
$
29
million
per
year,
while
the
incremental
costs
association
with
the
options
considered
by
the
Negotiated
Rulemaking
Committee
range
from
$
31
million
to
over
$
470
million
per
year.
The
incremental
cost
of
the
OMB
alternative
of
using
the
ASTM
E1527­
2000
standard
is
close
to
$
14
million.
120
Summary
of
Annual
Cost
Estimates
(
in
millions),
Discounted
at
Three
Percent
Base
Case
Proposed
Rule
Option
1
Option
2
Option
3
OMB
Option
ASTM
E1527
Total
Annual
Cost
$
663.8
$
690.1
­
$
691.9
$
844.0
$
693.9
$
1,122.0
$
677.3
Incremental
Total
Annual
Cost
Relative
to
the
Base
Case
$
0
$
26.3
­
$
28
$
180.2
$
30.0
$
458.1
$
13.5
Summary
of
Annual
Cost
Estimates
(
in
millions),
Discounted
at
Seven
Percent
Base
Case
Proposed
Rule
Option
1
Option
2
Option
3
OMB
Option
ASTM
E1527
Total
Annual
Cost
$
683.5
$
710.5
­
$
712.3
$
868.9
$
714.4
$
1,155.0
$
697.3
Incremental
Total
Annual
Cost
Relative
to
the
Base
Case
$
0
$
27
­
$
28.8
$
185.4
$
30.8
$
471.5
$
13.8
As
shown
in
the
table
above,
the
estimated
total
annual
cost
of
today's
proposed
rule,

calculated
using
a
discount
rate
of
seven
percent,
would
be
between
$
710.5
and
$
712.3
million
and
the
estimated
total
annual
incremental
cost
would
be
between
$
27
and
$
29
million.
Thus,

the
proposed
rule
will
have
an
incremental
annual
effect
on
the
economy
of
less
than
$
100
million
per
year.
121
B.
Paperwork
Reduction
Act
The
information
collection
requirements
contained
in
this
proposed
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
The
Information
Collection
Request
(
ICR)
document
prepared
by
EPA
has
been
assigned
EPA
ICR
Number
2144.01.

Under
the
PRA,
EPA
is
required
to
estimate
the
notification,
reporting
and
recordkeeping
costs
and
burdens
associated
with
the
requirements
specified
in
the
proposed
rule.
This
proposed
rule,
if
it
is
promulgated,
will
require
persons
wanting
to
claim
one
of
the
liability
protections
under
CERCLA
to
conduct
some
activities
that
go
beyond
current
customary
and
usual
business
practices
(
i.
e.,
beyond
ASTM
E1527­
2000)
and
therefore
will
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act.

The
information
collection
activities
are
associated
with
the
activities
mandated
in
Section
101
(
35)(
B)
of
CERCLA
for
those
persons
wanting
to
claim
protection
from
CERCLA
liability.

None
of
the
information
collection
burdens
associated
with
the
provisions
of
today's
rule
include
requirements
to
submit
the
collected
information
to
EPA
or
any
other
government
agency.
Information
collected
by
persons
affected
by
today's
proposed
rule
may
be
useful
to
such
persons
if
their
liability
under
CERCLA
for
the
release
or
threatened
release
of
a
hazardous
substance
is
challenged
in
a
court.

The
activities
associated
with
today's
proposed
rule
that
go
beyond
current
customary
and
usual
business
practices
include
interviews
with
neighboring
property
owners
and/
or
occupants
in
those
cases
where
the
subject
property
is
abandoned,
documentation
of
all
environmental
cleanup
liens
in
the
Phase
I
Environmental
Site
Assessment
report,
discussion
of
122
the
relationship
of
purchase
price
to
value
of
the
property
in
the
report,
and
consideration
and
discussion
of
whether
additional
environmental
investigation
is
warranted.
Paperwork
burdens
are
estimated
to
Under
the
Paperwork
Reduction
Act
``
burden''
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,

acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,

and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

To
comment
on
the
Agency's
need
for
this
information,
the
accuracy
of
the
provided
burden
estimates,
and
suggested
methods
for
minimizing
respondent
burden,
EPA
has
123
established
a
public
docket
for
this
proposed
rule,
which
includes
this
ICR,
under
Docket
ID
Number
SFUND­
2004­
0001.
Submit
any
comments
related
to
the
ICR
for
this
proposed
rule
to
EPA
and
OMB.
See
ADDRESSES
section
at
the
beginning
of
this
document
for
where
to
submit
comments
to
EPA.
Send
comments
to
OMB
at
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget,
725
17th
Street,
N.
W.,
Washington,

D.
C.
20503,
Attention:
Desk
Officer
for
EPA.

Since
OMB
is
required
to
make
a
decision
concerning
the
ICR
between
30
and
60
days
after
[
INSERT
DATE
OF
PUBLICATION
OF
THIS
DOCUMENT],
a
comment
to
OMB
is
best
assured
of
having
its
full
effect
if
OMB
receives
it
by
[
INSERT
DATE
30
DAYS
AFTER
PUBLICATION
IN
FEDERAL
REGISTER].
The
final
rule
will
respond
to
any
OMB
or
public
comments
on
the
information
collection
requirements
contained
in
this
proposed
rule.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
USC
601
et.
seq.,
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute,
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
the
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
A
small
business
that
is
defined
by
the
Small
Business
Administration
by
124
category
of
business
using
the
North
American
Industrial
Classification
System
(
NAICS)
and
codified
at
13
CFR
121.201;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

Since
all
non­
residential
property
transactions
could
be
affected
by
today's
proposed
rule,
if
it
is
promulgated,
large
numbers
of
small
entities
could
be
affected
to
some
degree.

However,
we
estimate
that
the
effects,
on
the
whole,
will
not
be
significant
for
small
entities.

We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
today's
proposed
rule
relative
to
conducting
an
ASTM
E1527­
2000
will
be
between
$
41
and
$
47.

When
we
annualize
the
incremental
cost
of
$
47
per
property
transaction
over
ten
years
at
a
seven
percent
discount
rate,
we
estimate
that
the
average
annual
cost
increase
per
establishment
per
property
transaction
will
be
us,
the
cost
impact
to
small
entities
is
estimated
to
not
be
significant.
A
more
detailed
summary
of
our
analysis
of
the
potential
impacts
of
today's
proposed
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Proposed
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
proposed
rule.

After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
We
estimate
that,
on
average,
small
entities
may
purchase
commercial
real
estate
in
any
given
year
and
therefore
could
potentially
be
impacted
by
today's
proposed
rule.
Though
large
numbers
of
small
entities
could
be
affected
to
some
degree,
we
estimated
4
For
a
very
small
percentage
of
entities
transitioning
from
transaction
screens
to
the
all
appropriate
inquiries
requirements,
the
maximum
increase
per
establishment
per
property
transaction
is
estimated
to
be
.
When
we
annualize
this
incremental
cost
per
property
transaction
over
ten
years
at
a
seven
percent
discount
rate,
we
estimate
that
the
maximum
annual
cost
increase
per
establishment
per
property
transaction
will
be
We
estimate
that
approximately
one
fifth
of
one
percent
of
the
properties
transitioning
from
a
transaction
screen
to
a
Phase
I
ESA
will
have
an
impact
of
this
magnitude
each
year.

125
that
the
effects,
on
the
whole,
would
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
today's
proposed
rule
relative
to
conducting
an
ASTM
E1527­
2000
will
be
between
$
41
and
$
47.
For
the
small
percentage
of
cases
for
which
a
transaction
screen
would
have
been
preferred
to
the
ASTM
E1527­
2000
in
the
baseline,
but
which
now
will
require
an
assessment
in
compliance
with
the
proposed
rule,

the
average
incremental
cost
of
conducting
an
environmental
site
assessment
will
be
between
$
1,448
and
$
1,454.
When
we
annualize
the
incremental
cost
per
property
transaction
over
ten
years
at
a
seven
percent
discount
rate,
we
estimate
that
for
the
majority
of
small
entities
the
average
annual
cost
increase
per
establishment
per
property
transaction
will
be
the
small
percentage
of
entities
transitioning
from
transaction
screens
to
the
all
appropriate
inquiries
requirements
of
the
proposed
rule,
the
average
annual
cost
increase
per
establishment
per
property
transaction
will
be
Although
this
proposed
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities,
EPA
nonetheless
considered
impacts
to
small
entities
in
the
development
of
this
rule.
As
described
in
Section
II.
F.
of
this
preamble,
we
developed
this
proposed
rule
using
a
negotiated
rulemaking
committee.
The
interests
of
small
entities,

including
small
businesses
and
small
communities,
were
represented
on
the
Negotiated
Rulemaking
Committee
for
All
Appropriate
Inquiries.
Committee
members
representing
small
126
entities,
including
representatives
from
small
environmental
services
firms
and
representatives
from
organizations
representing
small
and
rural
communities,
participated
in
each
meeting
of
the
Committee.
Today's
proposed
rule
includes
provisions
that
are
the
direct
result
of
input
from
these
representatives
to
the
Committee.

EPA
continues
to
be
interested
in
the
potential
impacts
of
the
proposed
rule
on
small
entities.
EPA
welcomes
comments
on
issues
related
to
such
impacts.
In
addition,
EPA
requests
comments
on
the
methodology
employed
to
identify
impacted
small
entities
and
estimate
the
potential
impacts
on
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104­
4,

establishes
requirements
for
federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,

EPA
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.

Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
127
Administrator
publishes
with
the
final
rule
an
explanation
of
why
that
alternative
was
not
adopted.

Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA,
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
to
have
meaningful
and
timely
input
in
the
development
of
regulatory
proposals
with
significant
federal
intergovernmental
mandates,

and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

Today's
proposed
rule
contains
no
federal
mandates
(
under
the
regulatory
provisions
of
Title
II
of
the
UMRA)
for
state,
local,
or
tribal
governments
or
the
private
sector.
The
proposed
rule
imposes
no
enforceable
duty
on
any
state,
local,
or
tribal
governments.
EPA
also
determined
that
this
proposed
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
In
addition,
as
discussed
above,
the
private
sector
is
not
expected
to
incur
costs
of
$
100
million
or
more
as
a
result
of
today's
proposed
rule.
Therefore,

today's
proposed
rule
is
not
subject
to
the
requirements
of
Sections
202
and
205
of
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),

requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
128
include
regulations
that
have
"
substantial
direct
effects
on
the
states,
on
the
relationship
between
the
national
government
and
the
states,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
proposal
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
states,
on
the
relationship
between
the
national
government
and
the
states,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
No
state
and
local
government
bodies
will
incur
compliance
costs
as
a
result
of
today's
rulemaking.
Therefore,
Executive
Order
13132
does
not
apply
to
this
proposed
rule.

Although
section
6
of
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
did
ensure
that
meaningful
and
timely
input
was
obtained
from
state
and
local
government
officials
when
developing
the
proposed
rule.
Representatives
from
two
different
state
agencies
participated
on
the
Negotiated
Rulemaking
Committee.
In
addition,
representatives
from
three
different
organizations
representing
local
government
officials
participated
on
the
Committee.
State
and
local
government
representatives
participated
in
the
Committee
negotiations
at
each
meeting
of
the
Committee.
Today's
proposed
rule
includes
provisions
that
are
the
direct
result
of
input
from
the
state
and
local
government
representatives
to
the
Committee
negotiations.

In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
state
and
local
governments,
EPA
specifically
solicits
comment
on
this
proposed
rule
from
state
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
129
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
This
proposed
rule
does
not
have
tribal
implications,
as
specified
in
Executive
Order
13175.
Today's
proposed
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments,
nor
would
it
impose
direct
compliance
costs
on
them.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

Although
Executive
Order
13175
does
not
apply
to
this
proposed
rule,
EPA
did
ensure
that
meaningful
and
timely
input
was
obtained
from
tribal
officials
when
developing
the
proposed
rule.
Representatives
from
two
different
tribal
communities
participated
on
the
Negotiated
Rulemaking
Committee.
A
tribal
government
representative
participated
in
the
Committee
negotiations
at
each
meeting
of
the
Committee.
Today's
proposed
rule
includes
provisions
that
are
the
direct
result
of
input
from
the
tribal
representatives
to
the
Committee
negotiations.

EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
tribal
officials.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Risks
and
Safety
Risks
Executive
Order
13045,
entitled
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
130
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)

concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children;
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

This
proposal
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution
or
Use
This
proposed
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,

or
Use"
(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significantly
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
Further,
we
have
concluded
that
this
rule
is
not
likely
to
have
any
adverse
energy
effects.

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Public
Law
No.
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities,
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
131
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
Today's
proposed
rule
involves
technical
standards.
Therefore,
the
requirements
of
section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
15
U.
S.
C.
272)
apply.

EPA
proposes
to
use
the
all
appropriate
inquiries
standard
developed
with
the
assistance
of
a
regulatory
negotiation
committee
comprised
of
various
affected
stakeholder
groups.
At
the
request
of
the
Office
of
Management
and
Budget,
EPA
considered
using
the
existing
standard
developed
by
ASTM
as
the
federal
standard
for
all
appropriate
inquiries.
This
standard
is
known
as
the
ASTM
E1527­
2000
standard
("
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
Process,").
EPA
and
OMB
estimates
that
the
adoption
of
the
ASTM
standard
would
be
less
costly
than
the
Agency's
preferred
option
(
the
option
developed
by
the
Negotiated
Rulemaking
Committee)
or
any
of
the
other
options
considered
by
the
Negotiated
Rulemaking
Committee
and
presented
in
the
Economic
Impact
Analysis.
The
existing
ASTM
E1527­
2000
standard
equates
to
the
base
case
in
the
economic
impact
analysis.
The
adoption
of
this
alternative
would
reduce
the
annual
paperwork
burden
associated
with
the
proposed
rule
by
approximately
236,000
hours.
However,
for
reasons
provided
below,
EPA
has
determined
that
the
ASTM
E1527­
2000
standard
is
inconsistent
with
applicable
law.

In
CERCLA
Section
101(
35)(
B),
Congress
included
ten
specific
criteria
to
be
used
in
promulgating
the
all
appropriate
inquiries
rule.
The
ASTM
standards
do
not
address
all
of
the
132
required
criteria.
For
example,
the
ASTM
standards
do
not
provide
for
interviews
of
past
owners,
operators,
and
occupants
of
a
facility.
The
statute,
however,
states
that
the
promulgated
standard
"
shall
include...
interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
for
the
purpose
of
gathering
information
regarding
the
potential
for
contamination
at
the
facility."
CERCLA
Section
101(
35)(
B)(
iii)(
II).

In
addition,
ASTM's
existing
standard
does
not
meet
other
statutory
requirements.

CERCLA
101(
35)(
B)(
iii)(
III)
mandates
that
EPA
shall
include
in
the
federal
regulations
setting
standards
for
all
appropriate
inquiries:
"
Reviews
of
historical
sources,
such
as
chain
of
title
documents,
aerial
photographs,
building
department
records,
and
land
use
records,
to
determine
the
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed."

ASTM
E1527­
2000
requires
identification
of
all
obvious
uses
of
the
property
from
the
present,

back
to
the
property's
obvious
first
developed
use
or
back
to
1940,
whichever
is
earlier.

Congress
did
not
qualify
the
review
to
obvious
uses,
and
did
not
give
an
alternate
date
regarding
the
review.

Further,
CERCLA
101(
35)(
B)(
iii)(
VI)
states
that:
"
Visual
inspections
of
the
facility
and
adjoining
properties"
shall
be
included
in
the
inquiry.
ASTM
E1527­
2000
does
not
mandate
visual
inspections
of
adjoining
properties.
ASTM's
standard
requires
noting
any
observed
past
uses,
but
does
not
require
the
conduct
of
an
actual
visual
inspection
of
adjoining
properties.

This
contrasts
with
the
mandatory
language
Congress
required
with
respect
to
the
intent
to
conduct
visual
inspection
of
adjoining
properties.

CERCLA
101(
35)(
B)(
iii)(
VIII)
also
states
that
the
standards
for
all
appropriate
inquiries
shall
include:
"
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
133
property
was
not
contaminated."
In
its
E1527­
2000
standard,
ASTM
limits
this
requirement
to
actual
knowledge
by
the
defendant
of
a
significantly
lower
price
for
a
property
when
compared
with
comparable
properties.
The
statute's
criteria
does
not
limit
this
to
actual
knowledge.

Finally,
CERCLA
101(
35)(
B)(
iii)(
IV)
states
that
the
standards
for
all
appropriate
inquiries
shall
include:
"
Searches
for
recorded
environmental
cleanup
liens
against
the
facility
that
are
filed
under
Federal,
State,
or
local
law."
ASTM's
E1527­
2000
standard
describes
a
much
more
limited
scope
for
this
search
than
the
statute
requires.
We
are
aware
that
in
some
instances,
liens
may
be
filed
in
places
other
than
recorded
land
title
records
and
therefore
a
more
comprehensive
standard
is
necessary
to
match
the
scope
intended
by
the
statute.

As
a
result,
use
of
the
ASTM
standards
would
be
inconsistent
with
applicable
law.
We
welcome
comments
on
this
aspect
of
the
proposed
rulemaking.
Specifically,
we
invite
the
public
to
comment
on
our
determination
that
the
alternative
of
adopting
the
ASTM
E1527­

2000
standard
as
the
federal
standards
for
conducting
all
appropriate
inquiries
would
be
inconsistent
with
applicable
law.
In
addition,
we
invite
the
public
to
identify
other
potentially
applicable
voluntary
consensus
standards
for
conducting
all
appropriate
inquiries
and
to
explain
why
EPA
should
use
such
standards
in
promulgating
this
regulation.
Prior
to
promulgating
a
final
regulation
setting
federal
standards
and
practices
for
all
appropriate
inquiries,
the
Agency
will
may
cite
or
reference
applicable
and
compliant
voluntary
consensus
standards
in
the
final
regulation
to
facilitate
implementation
of
the
final
regulations
and
avoid
disruption
to
parties
using
voluntary
consensus
standards
that
are
found
to
be
fully
compliant
with
the
federal
regulations.
134
J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
Executive
Order
12898,
"
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations"
(
February
11,
1994),
is
designed
to
address
the
environmental
and
human
health
conditions
of
minority
and
low­
income
populations.
EPA
is
committed
to
addressing
environmental
justice
concerns
and
has
assumed
a
leadership
role
in
environmental
justice
initiatives
to
enhance
environmental
quality
for
all
citizens
of
the
United
States.
The
Agency's
goals
are
to
ensure
that
no
segment
of
the
population,
regardless
of
race,

color,
national
origin,
income,
or
net
worth
bears
disproportionately
high
and
adverse
human
health
and
environmental
impacts
as
a
result
of
EPA's
policies,
programs,
and
activities.
Our
goal
is
to
ensure
that
all
citizens
live
in
clean
and
sustainable
communities.
In
response
to
Executive
Order
12898,
and
to
concerns
voiced
by
many
groups
outside
the
Agency,
EPA's
Office
of
Solid
Waste
and
Emergency
Response
(
OSWER)
formed
an
Environmental
Justice
Task
Force
to
analyze
the
array
of
environmental
justice
issues
specific
to
waste
programs
and
to
develop
an
overall
strategy
to
identify
and
address
these
issues
(
OSWER
Directive
No.

9200.3­
17).
EPA's
brownfields
program
has
a
particular
emphasis
on
addressing
concerns
specific
to
environmental
justices
communities.
Many
of
the
communities
and
neighborhoods
that
are
most
significantly
impacted
by
brownfields
are
environmental
justice
communities.

EPA's
brownfields
program
targets
such
communities
for
assessment,
cleanup,
and
revitalization.
The
brownfields
program
has
a
long
history
of
working
with
environmental
justice
communities
and
advocates
through
our
technical
assistance
and
grant
programs.
In
addition
to
the
monies
awarded
to
such
communities
in
the
form
of
assessment
and
cleanup
135
grants,
the
brownfields
program
also
works
with
environmental
justice
communities
through
our
job
training
grants
program.
The
job
training
grants
provide
money
to
government
entities
to
facilitate
the
training
of
persons
living
in
or
near
brownfields
communities
to
attain
skills
for
conducting
site
assessments
and
cleanups.

Given
that
environmental
justice
communities
are
significantly
impacted
by
brownfields,

and
the
federal
standards
for
all
appropriate
inquiries
may
play
a
primary
role
in
encouraging
the
assessment
and
cleanup
of
brownfields
sites,
EPA
made
it
a
priority
to
obtain
input
from
representatives
of
environmental
justice
interest
groups
during
the
development
of
the
proposed
rulemaking.
The
Negotiated
Rulemaking
Committee
tasked
with
developing
the
all
appropriate
inquiries
proposed
rule
included
three
representatives
from
environmental
justice
advocacy
groups.
Each
representative
played
a
significant
role
in
the
negotiations
and
in
the
development
of
today's
proposed
rule.

List
of
Subjects
in
40
CFR
Part
312
Environmental
protection,
Administrative
practice
and
procedure,
Hazardous
substances,

Intergovernmental
relations,
Reporting
and
recordkeeping
requirements.
136
Dated:

Michael
O.
Leavitt,

Administrator.

For
reasons
set
out
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
proposed
to
be
amended
by
revising
Part
312
as
follows:

PART
312
 
INNOCENT
LANDOWNERS,
STANDARDS
FOR
CONDUCTING
ALL
APPROPRIATE
INQUIRIES
Subpart
A
 
Introduction
Sec.

312.1
Purpose,
applicability,
scope,
and
disclosure
obligations.

Subpart
B
 
Definitions
and
References
312.10
Definitions.

312.11
References.

Subpart
C
 
Standards
and
Practices
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.
137
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.

Authority:
Section
101(
35)(
B)
of
CERCLA,
as
amended,
42
U.
S.
C.
9601(
35)(
B).

PART
312
 
INNOCENT
LANDOWNERS,
STANDARDS
FOR
CONDUCTING
ALL
APPROPRIATE
INQUIRIES
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
Section
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
Sections
101(
35)
and
107(
b)(
3);
138
(
ii)
The
bona
fide
prospective
purchaser
liability
protection
pursuant
to
CERCLA
Sections
101(
40)
and
107(
r);

(
iii)
The
contiguous
property
owner
liability
protection
pursuant
to
CERCLA
Section
107(
q);
and
(
2)
persons
conducting
site
characterization
and
assessments
with
the
use
of
a
grant
awarded
under
CERCLA
Section
104(
k)(
2)(
B).

(
c)
Scope.
(
1)
Persons
seeking
to
qualify
for
one
of
the
liability
protections
under
paragraph
(
b)(
1)
of
this
section
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
Section
101(
22),
of
hazardous
substances,
as
defined
in
CERCLA
Section
101(
14).

(
2)
Persons
identified
in
paragraph
(
b)(
2)
of
this
section
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
of
hazardous
substances,
as
defined
in
CERCLA
Section
101(
22),
and
as
applicable
per
the
terms
and
conditions
of
the
grant
or
cooperative
agreement,

releases
and
threatened
releases
of:

(
i)
Pollutants
and
contaminants,
as
defined
in
CERCLA
Section
101(
33);

(
ii)
Petroleum
or
petroleum
products
excluded
from
the
definition
of
"
hazardous
substance"
as
defined
in
CERCLA
Section
101(
14);
and
(
iii)
Controlled
substances,
as
defined
in
21
U.
S.
C.
802.
139
(
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
Sections
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.

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
as
follows:

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
140
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
this
part
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:

(
1)
a
person
who
possesses
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
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).

(
2)
Such
a
person
must:

(
i)
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
(
ii)
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
(
iii)
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
(
iv)
As
of
the
date
of
the
promulgation
of
this
rule,
have
a
Baccalaureate
or
higher
141
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience.

(
3)
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.

(
4)
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).

(
5)
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
when
conducting
such
activities.

Relevant
experience,
as
used
in
the
definition
of
environmental
professional
in
this
section,
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.
142
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:
[
Reserved]

Subpart
C
 
Standards
and
Practices
§
312.20
All
appropriate
inquiries.

(
a)
"
All
appropriate
inquiries"
pursuant
to
CERCLA
Section
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:
143
(
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
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii);

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

(
3)
Not
withstanding
paragraph
(
b)(
2)
of
this
section,
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
(
see
§
312.23);

(
ii)
Searches
for
recorded
environmental
cleanup
liens
(
see
§
312.25);

(
iii)
Reviews
of
federal,
tribal,
state,
and
local
government
records
(
see
§
312.26);

(
iv)
Visual
inspections
of
the
facility
and
of
adjoining
properties
(
see
§
312.27);
and
(
v)
The
declaration
by
the
environmental
professional
(
see
§
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
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
paragraphs
(
d)
and
(
e)
of
this
section;
and
(
2)
The
person
specified
in
§
312.1(
b)
and
seeking
to
use
the
previously
collected
144
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
paragraph
(
b)(
3)
of
this
section,
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
this
section
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
(
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.
145
(
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
this
section
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.
146
(
e)
Performance
factors.
In
performing
each
of
the
standards
and
practices
set
forth
in
this
subpart
and
to
meet
the
objectives
stated
in
paragraph
(
d)
of
this
section,
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
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
paragraph
(
e)
of
this
section
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.
147
(
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.

§
312.21
Results
of
inquiry
by
an
environmental
professional.

(
a)
Persons
identified
under
§
312.1(
b)
must
undertake
an
inquiry,
as
defined
in
paragraph
(
b)
of
this
section,
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:
148
(
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
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
paragraph
(
c)(
1)
of
this
section;
and
(
3)
The
qualifications
of
the
environmental
professional(
s).

(
d)
The
environmental
professional
must
place
the
following
statement
in
the
written
document
identified
in
paragraph
(
c)
of
this
section
and
sign
the
document:

"[
I,
We]
declare
that,
to
the
best
of
[
my,
our]
professional
knowledge
and
149
belief,
[
I,
we]
meet
the
definition
of
Environmental
Professional
as
defined
in
§
312.10
of
this
part."

"[
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."

§
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.

§
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants.
150
(
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
151
abandoned
properties
for
the
purpose
of
gathering
information
necessary
to
achieve
the
objectives
and
performance
factors
of
§
312.20(
d)
and
(
e).

§
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.

§
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.
152
§
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
153
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);

(
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:
154
(
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
paragraphs
(
c)(
1)
through
(
c)(
3)
of
this
section
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
paragraph
(
c)
of
this
section
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)
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
155
(
7)
Other
relevant
factors.

§
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
rights­
of­
way,
or
other
vantage
point
(
e.
g.,
aerial
photography),
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
Section
104(
k)(
2)(
B)
must
include
in
the
inquiries
referenced
in
§
312.27(
a)

visual
inspections
of
areas
where
hazardous
substances,
and
may
include,
as
applicable
per
the
terms
and
conditions
of
the
grant
or
cooperative
agreement,
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
156
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);

(
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.

§
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
157
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)).

§
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
Section
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.
158
§
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).
159
§
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.
