RESPONSE
TO
COMMENT
DOCUMENT
ALL
APPROPRIATE
INQUIRIES
REGULATION
October
2005
Table
of
Contents
Background
and
Purpose
of
Document........................................................................
1
Background.................................................................................................................
1
Purpose
of
Document
..................................................................................................
2
SECTION
1:
Proposed
Rule
 
General
Opinion.....................................................
4
1.1
General
Opinion
of
the
Proposed
Rule
.............................................................
4
1.1.1
General
Support
of
the
Proposed
Rule......................................................
4
1.1.2
General
Opposition
to
the
Proposed
Rule
...............................................
64
SECTION
2:
Definition
of
Environmental
Professional
.....................................
103
2.1
License,
Educational,
and
Relevant
Experience
Requirements
.....................
105
2.1.1
Support
of
the
Proposed
Minimum
Requirements
................................
105
2.1.2
Revise
the
License
Requirement
to
Include
Licensed
or
Certified
Professionals
Other
than
Professional
Engineers
and
Professional
Geologists............................................................................................
137
2.1.3
Revise
the
Rule
to
Exclude
the
License
Requirement
from
the
Definition
of
the
EP..............................................................................................
180
2.1.4
Revise
Educational
Requirements
to
Allow
Individuals
with
Baccalaureate
or
Higher
Degrees
in
Areas
Other
than
Engineering,
Environmental
Science,
and
Earth
Science
and
Five
or
More
Years
of
Relevant
Experience
to
Qualify
as
EPs
...............................................................
186
2.1.5
Revise
the
Minimum
Requirements
to
Allow
Individuals
Certified
by
a
Professional
Organization
that
is
Third
Party
Accredited
and
Have
Ten
Years
of
Full­
Time
Relevant
Experience
to
Qualify
as
EPs..................
209
2.1.6
Revise
Educational
Requirements
to
Allow
Individuals
with
Substantial
Relevant
Work
Experience
to
Qualify
as
EPs
.......................................
226
2.1.7
Revise
the
Grandfather
Clause
to
Allow
All
Individuals
Currently
Conducting
Site
Assessments
to
Qualify
as
EPs
...................................
245
2.1.8
Comments
on
the
Proposed
Minimum
Requirements
...........................
250
2.2
An
EP
Should
Remain
Current
in
His/
Her
Field
through
Participation
in
Continuing
Education
or
Other
Relevant
Activities
.....................................
308
2.2.1
The
Agency
Should
Clarify
What
Type
of
Training
or
Continuing
Education
Would
Satisfy
This
Requirement
.........................................
310
2.3
Suggestions
for
Additional
Elements
or
Revisions
of
the
Proposed
Definition
....................................................................................................................
315
2.3.1
Professional
Engineer
Certification
and
Professional
Geologist
Certification
Do
Not
Ensure
High
Level
of
Professional
Ability...........
320
2.3.2
Revise
the
Proposed
Rule
to
Include
a
Provision
Relieving
the
EP
of
a
Liability
for
Contaminant
Exposure
of
Persons
Working
under
His/
Her
Supervision
or
Responsible
Charge
......................................................
344
2.3.3
Adopt
the
Definition
of
EP
as
Specified
in
the
ASTM
Standard
...........
345
2.3.4
Persons
Who
Do
Not
Qualify
as
EPs
Should
Not
Be
Allowed
to
Assist
in
the
Conduct
of
All
Appropriate
Inquiries
.............................................
347
2.3.5
The
Rule
Should
Provide
Examples
of
Relevant
Experience
................
357
2.3.6
Revise
the
Proposed
Rule
to
Allow
Individuals
to
Accumulate
the
Required
Ten
Years
of
Experience
after
the
Promulgation
of
the
Rule
.
358
2.3.7
Ramifications/
Penalties
for
an
Unqualified
Non­
EP
Signing
an
AAI
Statement
.............................................................................................
361
2.3.8
To
Ensure
that
EPs
are
Qualified,
a
National
Test
and/
or
Training
Should
Be
Established
.....................................................................................
365
2.3.9
The
Rule
Should
Specifically
Address
Subsurface
Investigations
as
a
Separate
Component
of
AAI
................................................................
370
2.3.10
The
Agency
Should
Define
the
Term
"
Full­
Time"................................
372
SECTION
3:
Requirements
for
Conducting
All
Appropriate
Inquiries
............
374
3.1
Interview
Requirements
for
Non­
Abandoned
Properties
..............................
376
3.1.1
Interview
of
the
Current
Owners,
Occupants,
Employees,
and/
or
Managers
of
the
Subject
Property.........................................................................
382
3.1.2
Interview
of
the
Past
Owners,
Occupants,
Employees,
and/
or
Managers
of
the
Subject
Property.............................................................................
384
3.2
Interview
Requirements
for
Abandoned
Properties
......................................
390
3.2.1
Interviewing
Owners
of
Neighboring
Properties
Should
Be
Optional
...
394
3.2.2
The
Agency
Should
Clarify/
Modify
the
Language
Pertaining
to
"
Unauthorized
Use"
and
"
Uncontrolled
Access"
of
the
Subject
Property
............................................................................................................
404
3.3
Review
of
Historical
Sources
of
Information
...............................................
406
3.3.1
Scope
of
the
Review
­
How
far
Back
in
Time/
History
Historical
Records
Must
Be
Reviewed...............................................................................
413
3.3.2
Review
of
Chain
of
Title
Documents
Should
Be
Made
a
Requirement
.
426
3.4
Recorded
Environmental
Cleanup
Lens
Searches.........................................
432
3.5
Review
of
Federal,
State,
Tribal,
and
Local
Government
Records................
440
3.5.1
Review
of
Tribal
Records.....................................................................
447
3.5.2
Adjustments
to
Search
Distances..........................................................
451
3.5.3
Government
Records
May
Not
Be
Reasonably
Ascertainable...............
464
3.5.4
The
Agency
Should
Provide
More
Guidance
on
How
Best
to
Obtain
Information
about
Institutional
and
Engineering
Controls
....................
468
3.5.5
The
Agency
Should
Provide
the
Definition
of
Engineering
Controls
....
470
3.5.6
Record
Listings
Should
Be
Replaced
by
Specific
Government
Facility
Listings
................................................................................................
471
3.6
Visual
Inspections........................................................................................
472
3.6.1
Visual
Inspection
of
the
Subject
Property.............................................
473
3.6.2
Limited
Exemption
from
Conducting
an
On­
Site
Inspection
of
the
Subject
Property
...............................................................................................
488
3.6.3
Visual
Inspection
of
Adjoining
Properties
............................................
497
3.7
Inclusion
of
Specialized
Knowledge
or
Experience......................................
503
3.7.1
Specialized
Knowledge
of
the
Current
Owner(
s)
of
the
Subject
Property
............................................................................................................
507
3.8
Considering
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property
....................................................................................................................
509
3.8.1
The
EP
Should
Not
Be
Required
to
Consider
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property..........................................
515
3.8.2
Explanation
of
the
Assessment
Process
Provided
in
the
Preamble/
Rule
is
Inadequate............................................................................................
537
3.8.3
The
Agency
Should
Clarify
the
Definition
of
Fair
Market
Value..........
548
3.8.4
The
Rule
Should
Require
a
Commercial
Appraisal
by
a
Real
Estate
Expert/
Appraiser
..................................................................................
549
3.9
Considering
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property
.......................................................................................
561
3.9.1
Commonly
Known
or
Reasonably
Ascertainable
Information
Should
Not
Be
Limited
to
Information
Available
in
the
Local
Community
.............
569
3.9.2
The
Agency
Should
Provide
Additional
Guidance................................
570
3.9.3
Commonly
Known
or
Reasonably
Ascertainable
Information
Should
Be
Limited
to
State
or
Local
Governments
................................................
576
3.10
Considering
the
Degree
of
Obviousness
of
the
Presence
or
Likely
Presence
of
Contamination
at
the
Property
.....................................................................
580
3.11
Recognized
Environmental
Conditions
........................................................
587
3.11.1
De
Minimis
Conditions
or
Releases
of
Hazardous
Substances..............
589
3.11.2
Controlled
Substances
..........................................................................
592
3.12
Data
Gaps....................................................................................................
596
3.12.1
The
Rule
Should
Require
Sampling
and
Analysis.................................
613
3.12.2
The
Rule
Should
Not
Require
Sampling
and
Analysis..........................
618
3.12.3
The
Agency
Should
Clarify
How
Many
Years
without
Data
Constitute
a
Data
Gap..............................................................................................
633
3.12.4
Review
of
Information
Ordered
Closed
by
Courts................................
636
3.13
Shelf
Life
of
the
AAI
Report........................................................................
637
3.13.1
Use
of
Information
Collected
for
Previous
Inquiries
Completed
for
the
Same
Property......................................................................................
641
3.13.2
AAIs
Conducted
by
Third
Parties.........................................................
650
3.13.3
The
Agency
Should
Clarify
whether
the
Results
of
the
Reports
that
Have
Been
Prepared
in
Accordance
with
ASTM
E1527­
2000
Can
Be
Included
in
Updated
AAI
Reports.......................................................................
653
3.13.4
Shelf
Life
Should
Be
Extended
beyond
180
Days/
One
Year.................
654
3.14
The
AAI
Report
Must
Be
Signed
by
an
EP
..................................................
666
3.14.1
The
Agency
Should
Clarify
whether
the
Seal
of
the
Licensed
Professional
Engineers
and
Professional
Geologists
Will
Be
Required
on
the
AAI
Report
..................................................................................................
669
3.14.2
Review
of
Information
Ordered
Closed
by
Courts................................
670
3.14.3
The
Signature
Requirement
Should
Be
Modified..................................
672
3.15
Suggestions
for
Including
Additional
Requirements
or
Revising
the
Proposed
Requirements
..............................................................................................
676
3.15.1
Information
Considered
by
the
EP
in
Reaching
an
Opinion
Regarding
the
Environmental
Condition(
s)
of
the
Subject
Property
Should
Be
Included
in
the
AAI
Report
as
an
Appendix............................................................
679
3.15.2
The
AAI
Report
Should
Be
Submitted
to
the
Agency
or
the
Appropriate
State
Agency........................................................................................
680
3.15.3
Require
EPs
to
Incorporate
Existing
Tribal
Standards
and
Regulations
into
the
AAI
Process
............................................................................
681
3.15.4
The
EP's
Report
Should
Only
Include
Data
Necessary
for
the
Judgment
of
the
EP
..................................................................................................
683
3.15.5
The
Agency
Should
Specify
a
Required
Format/
Outline
for
the
AAI
Report
..................................................................................................
684
3.15.6
Explicitly
State
that
Due
Diligence
According
to
the
Standard
Will
Not
Address
Significant
Compliance­
Related
Liabilities.............................
686
3.15.7
Clarify
That,
Although
the
Rule
Requires
No
New
Reporting
or
Disclosure,
These
May
Be
Required
under
Other
Existing
Standards
(
e.
g.,

Release
Reporting)...............................................................................
687
3.16
Division
of
Responsibilities
(
Tasks
Performed
by
EP
vs.
Landowner
or
Purchaser)
...................................................................................................
688
SECTION
4:
Comments
on
the
Economic
Impact
Analysis
...............................
695
4.1
The
Impact
of
the
Rule
is
Underestimated....................................................
698
4.2
The
Volume
of
Phase
I
ESAs
Performed
Using
the
AAI
Standard
is
Overestimated/
Underestimated....................................................................
740
4.3
The
Impact
of
the
Rule
on
State,
Local,
and
Tribal
Governments.................
742
SECTION
5:
Comments
on
the
Paperwork
Reduction
Act................................
745
SECTION
6:
Miscellaneous
.................................................................................
746
6.1
EPA
Should
Adopt
ASTM
Standard
Rather
than
Develop
Separate
Regulations
....................................................................................................................
746
6.2
The
Agency
Should
Clarify
How
the
Final
AAI
Rule
Will
Relate
to
the
ASTM
Standard......................................................................................................
767
6.3
The
Agency
Should
Clarify
whether
the
CERCLA
Liability
Protections
Apply
if
the
State
Government
Acquires
the
Property
Amicably
by
Agreement
in
Lieu
of
Eminent
Domain
.....................................................................................
777
6.4
Sections
of
the
Rule
Should
Be
Printed
in
Bold
Letters................................
784
6.5
Post­
acquisition
Statutory
Requirements
for
Obtaining
the
CERCLA
Liability
Protections
..................................................................................................
785
6.6
Impact
of
the
Rule
on
the
Cost
of
Liability
Insurance...................................
789
6.7
Negotiated
Rulemaking
Committee/
Process.................................................
794
6.8
EPA
Should
Perform
More
Outreach
and
Education
on
AAI
and
the
Proposed
Rule
............................................................................................................
807
6.9
Tribes
May
Not
Have
Capacity/
Resources
to
Meet
the
AAI
Requirements
..
811
6.10
Other
...........................................................................................................
813
1
Background
and
Purpose
of
Document
Background
On
January
11,
2002,
President
Bush
signed
into
law
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
Brownfields
Amendments).
The
Brownfields
Amendments
amend
the
Comprehensive
Environmental
Recovery,
Compensation,
and
Liability
Act
(
CERCLA)
by
increasing
funding
for
assessing
and
cleaning
up
brownfields
sites,
clarifying
CERCLA
liability
protections
for
certain
landowners,
and
enhancing
State
and
Tribal
response
programs.

The
Brownfields
Amendments
require
the
Environmental
Protection
Agency
(
the
Agency)
to
develop
regulations
establishing
standards
and
practices
for
conducting
"
all
appropriate
inquiries"
and
promulgate
the
standards
within
two
years
of
its
enactment.
The
AAI
standards
and
practices
provide
a
framework
for
assessing
the
previous
ownership,
uses,
and
environmental
conditions
of
a
property.
The
standards
and
practices
are
applicable
to
any
prospective
commercial
property
owner
who
may
want
to
claim
liability
protection
for
a
release
or
threatened
release
of
a
hazardous
substance
as
an
innocent
landowner,
a
contiguous
property
owner,
or
a
bona
fide
prospective
purchaser.
The
standards
and
practices
also
are
applicable
to
persons
conducting
site
characterizations
and
assessments
with
the
use
of
Federal
brownfields
grants.

Congress
included
in
the
Brownfields
Amendments
a
list
of
criteria
that
the
Agency
must
address
in
developing
standards
and
practices
for
conducting
all
appropriate
inquires
(
section
101(
35)(
2)(
B)(
ii)).
In
addition,
as
part
of
the
Brownfields
Amendments,
Congress
established
the
ASTM
International
Standard
E1527­
97
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process")
as
an
interim
standard
for
all
appropriate
inquiries,
until
the
Agency
promulgates
final
federal
regulatory
standards.

The
Agency
determined
that
the
regulatory
negotiation
process
was
the
best
way
to
develop
the
proposed
Federal
standards
and
practices
for
conducting
all
appropriate
inquiries
and
established
the
Negotiated
Rulemaking
Committee
for
All
Appropriate
Inquiries.
The
Committee,
composed
of
25
members
representing
parties
of
interest
in
the
rulemaking,
held
six
multiple­
day
meetings
over
the
course
of
seven
months,
beginning
in
April
2003.
During
the
Committee's
deliberations,
the
general
public
had
many
opportunities
to
comment
on
the
Committee's
draft
regulatory
language,
including
the
opportunities
to
provide
written
comments
and
make
oral
presentations
to
the
Committee.
On
November
14,
2003,
the
Committee
arrived
at
a
consensus
document
representing
its
recommendation
for
a
proposed
regulation.

The
Agency
used
the
Committee's
consensus
language
as
a
basis
for
the
All
Appropriate
Inquiries
proposed
rule
and
published
the
proposed
rule
in
the
Federal
Register
on
August
26,
2004
(
69
FR
52542).
The
Agency
also
established
a
90­
day
comment
period
requesting
comments
from
the
public
on
the
proposed
requirements
for
conducting
all
2
appropriate
inquiries
and
the
Agency's
analysis
of
the
potentially
impacted
entities.
The
proposed
rule
and
the
background
documents
were
made
available
to
the
public
in
the
Agency's
docket.
During
the
public
comment
period,
the
Agency
held
three
public
meetings
on
the
proposed
All
Appropriate
Inquiries
rule,
in
St.
Louis
on
September
22,
Washington
D.
C.
on
October
20,
and
San
Francisco
on
November
18.

During
the
comment
period,
which
ended
on
November
30,
2004,
the
Agency
received
4301
comments
from
interested
stakeholders,
including
the
comments
submitted
during
the
three
public
meetings.
Commenters
who
indicated
that
they
currently
are
performing
environmental
site
assessments
(
ESAs)
submitted
over
70
percent
of
the
public
comments.
Close
to
40
percent
of
those
commenters
were
members
of
professional
organizations
which
have
educational
and
certification
requirements
for
their
members.
Less
than
10
percent
of
the
comments
received
by
the
Agency
were
submitted
by
Federal,
State,
Tribal,
and
Local
governments,
environmental
groups,
and
academic
institutions.
Approximately
the
same
number
of
comments
was
submitted
by
businesses
which
solicit
or
provide
services
to
the
ESA
industry
and/
or
real
estate
industry
(
e.
g.,
lawyers,
appraisers,
financial
institutions,
developers).
The
rest
of
the
comments
were
submitted
by
anonymous
commenters.

The
Agency
received
the
highest
number
of
comments
on
the
proposed
definition
of
environmental
professional
(
EP).
Although
a
large
number
of
commenters
agreed
that
the
rule
should
establish
some
minimum
requirements
for
EPs,
they
disagreed
on
how
stringent
those
requirements
should
be.
The
Agency
received
comments
on
all
of
the
proposed
requirements
for
performing
all
appropriate
inquiries
with
the
highest
number
of
comments
addressing
the
requirements
for
considering
the
relationship
of
the
purchase
price
to
the
value
of
the
property.

The
Agency
reviewed
and
considered
all
public
comments
received
in
response
to
the
proposed
rule.
Based
upon
input
provided
in
the
public
comments,
the
Agency
made
some
modifications
to
the
regulatory
language
and
the
Economic
Impact
Analysis
(
EIA).
An
explanation
of
the
regulatory
changes
is
included
in
the
preamble
to
the
final
rule.
A
summary
of
the
changes
made
to
the
EIA
are
provided
in
an
Addendum
to
the
EIA
developed
for
the
proposed
rule.
The
Addendum
and
the
EIA
are
available
in
the
docket
for
the
final
rule.

Purpose
of
Document
This
document
presents
the
public
comments
received
in
response
to
the
proposed
All
Appropriate
Inquiries
rule
and
the
Agency's
response
to
each
comment.
The
comment
response
document
is
organized
by
category
of
issues
raised
by
the
public
in
response
to
the
proposed
rule,
preamble,
and
the
EIA.

This
document
does
not
present
the
comments
in
their
entirety.
Rather,
each
issue
section
contains
relevant
excerpts
of
the
comments
that
address
each
particular
issue.
For
clarity,
every
comment
excerpt
is
identified
by:
(
1)
the
name
of
the
person
or
1
The
Agency
received
439
comment
letters
of
which
nine
letters
were
duplicates.
3
organization
that
submitted
the
comment,
(
2)
the
unique
comment
number
assigned
to
each
comment
by
the
Agency,
and
(
3)
an
unique
comment
excerpt
number.

Each
comment
excerpt
is
followed
by
the
Agency's
response.
The
responses
clarify
how
the
comments
were
considered
in
the
final
rule.

The
public
can
view
the
comment
letters
in
their
entirety
at
the
Agency
docket.
The
comment
letters
are
available
electronically
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket,
under
Docket
ID
No.
SFUND­
2004­
0001.
The
public
also
can
view
the
comment
letters
in
hard
copy
at
the
EPA
Docket
Center,
EPA
West
Building,
Room
B102,
1301
Constitution
Ave.,
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.
4
SECTION
1:
Proposed
Rule
 
General
Opinion
1.1
General
Opinion
of
the
Proposed
Rule
1.1.1
General
Support
of
the
Proposed
Rule
Commenter
Organization
Name:
Dailey,
Christopher
W
Comment
Number:
0036
Excerpt
Number:
1
Excerpt
Text:
As
an
environmental
professional
I
would
like
to
extend
my
support
to
the
proposed
All
Appropriate
Inquiry
(
AAI)
rule
published
in
the
Federal
Register
on
August
26,
2004.
While
the
ASTM
E­
1527­
2000
Phase
I
Environmental
Site
Assessment
(
ESA)
Standard
served
well
as
an
interim
measure,
it
allowed
too
much
interpretation
over
who
could
perform
a
Phase
I
ESA
and
how
it
should
be
done.
The
AAI
rule
will
set
a
high
benchmark
for
the
brownfield
industry
and
help
ensure
environmental
protection
for
developers
who
wish
to
pursue
redevelopment
of
potentially
contaminated
properties.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
TXU
Comment
Number:
0268
Excerpt
Number:
1
Excerpt
Text:
TXU
supports
EPA's
development
of
all
appropriate
inquiries
standards.
Most
of
the
proposed
regulatory
language
is
acceptable
and
will
be
beneficial
in
TXU's
conduct
of
all
appropriate
inquiries.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Albin,
Dave
Comment
Number:
0325
Excerpt
Number:
1
Excerpt
Text:
We
have
long
needed
to
establish
a
minimum
level
of
qualifications
for
individuals
performing
environmental
assessments,
particularly
those
done
in
preparation
for
property
transactions.
The
proposed
rule
accomplishes
that
goal
and
for
this
reason
I
support
it.
5
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Cassidy,
Daniel
Comment
Number:
0389
Excerpt
Number:
1
Excerpt
Text:
The
EPA's
proposed
rules
for
All
Appropriate
Inquiry
(
AAI)
transfer
criteria
for
due
diligence
activity
from
the
current
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
fully
support
this
transfer
which
will
help
ensure
a
level
of
professionalism
and
quality
appropriate
for
this
very
important
type
of
environmental
investigation.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Kehres
Comment
Number:
0395
Excerpt
Number:
1
Excerpt
Text:
The
EPAs
proposed
rules
for
All
Appropriate
Inquiry
(
AAI)
transfer
criteria
for
this
due
diligence
activity
from
the
current
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
enthusiastically
support
this
transfer,
which
will
help
ensure
a
level
of
professionalism
and
quality
appropriate
for
this
important
type
of
environmental
investigation.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
MBA
Comment
Number:
0401
Excerpt
Number:
2
Excerpt
Text:
MBA
and
its
members
support
EPA's
proposed
regulation,
which
establishes
that
AAI
is
met
through
the
performance
of
an
ASTM
Phase
I
environmental
site
assessment.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
6
Commenter
Organization
Name:
Morse,
Catherine
Comment
Number:
0413
Excerpt
Number:
1
Excerpt
Text:
This
is
to
advise
that
I
support
the
proposed
rules
for
All
Appropriate
Inquiry
(
AAI)
which
transfers
criteria
for
this
due
diligence
activity
from
the
current
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
believe
that
this
change
will
assist
in
bringing
a
high
degree
of
professionalism
to
this
type
of
environmental
inquiry.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
10
Excerpt
Text:
The
new
AAI
Rule
will
require
more
time
to
conduct
environmental
due
diligence,
more
rigorous
pre­
qualification
of
EPs,
increased
collaboration
between
the
User
and
the
EP
and
greater
disclosure
of
detailed
transactional
information
to
the
EP
(
e.
g.,
purchase
price,
title,
commonly
known
information,
specialized
knowledge
of
the
parties).
We
support
USEPA's
efforts
to
standardize
the
AAI
process,
and
we
encourage
USEPA
to
ensure
that
the
final
AAI
Rule
will
allow
AAI
to
dove­
tail
with
other
environmental
assessments
relevant
to
property
transactions
(
e.
g.,
asbestos
inspections,
radon
testing,
wetlands
delineations,
regulatory
compliance
audits)
so
that
AAI
can
continue
to
be
a
relevant,
worthwhile
exercise.
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Hoskins,
Herbert
Comment
Number:
0428
Excerpt
Number:
1
Excerpt
Text:
The
EPA's
proposed
rules
for
All
Appropriate
Inquiry
(
AAI)
transfer
criteria
for
this
due
diligence
activity
from
the
current
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
enthusiastically
support
this
transfer,
which
will
help
ensure
a
level
of
professionalism
and
quality
appropriate
for
this
important
type
of
environmental
investigation.
In
general
the
transition
is
coherent
and
reasonable;

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
7
Commenter
Organization
Name:
Mittelholzer,
Michael
Comment
Number:
PM­
0207­
0002
Excerpt
Number:
1
Excerpt
Text:
However,
before
I
discuss
some
of
the
merits
of
the
proposed
rule
for
the
land
development
and
construction
industry,
it
is
important
to
remember
the
importance
of
today's
proposed
rule
to
the
implementation
of
a
significant
environmental
statute,
the
Small
Business
Liability
and
Brownfields
Revitalization
Act,
commonly
referred
to
as
the
Brownfields
Law.
NAHB
supports
the
proposed
rule
for
three
main
reasons:

First:
The
proposed
rule
implements
a
key
provision
of
the
recently
passed
brownfields
law
that
clarifies
what
specific
actions
a
landowner
must
take
prior
to
taking
title
to
a
property
to
determine
the
potential
presence
of
environmental
contamination.
Second:
The
proposed
rule
is
consistent
with
the
criteria
established
by
Congress
under
the
recently
enacted
brownfields
law.
I
believe
that's
found
in
Section
223(
d).

Three:
Promulgation
of
the
rule
will
provide
landowners
with
the
means
to
demonstrate
they
qualify
for
the
important
federal
liability
protections
CERCLA
Super
Fund
granted
under
the
brownfields
law.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
8
1.1.1.1
Adopt
the
Rule
as
Proposed
Commenter
Organization
Name:
Malivuk,
John
Comment
Number:
0060
Excerpt
Number:
2
Excerpt
Text:
In
summary,
I
favor
the
AAI
rule
as
proposed.
I
urge
the
Agency
to
adopt
the
rule
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Van
Reenen,
Dirk
Comment
Number:
0070
Excerpt
Number:
1
Excerpt
Text:
I
fully
support
the
All
Appropriate
Inquiry
rule.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
None
Comment
Number:
0082
Excerpt
Number:
1
Excerpt
Text:
I
support
AAI!!

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Jeffers,
Larry
A
Comment
Number:
0084
Excerpt
Number:
1
Excerpt
Text:
As
a
Professional
Engineer
who
provides
and
uses
environmental
services,
I
am
in
full
9
support
of
this
proposed
rule.
This
proposed
AAI
rule
under
consideration
here
does
the
following:
"
Encourages
project/
client/
public
sensitivity
by
permitting
the
flexibility
derived
from
a
performance­
based
approach
instead
of
a
prescriptive
approach.
The
rule
would
be
applicable
to
any
type
of
property."
Sets
minimum
qualification
criteria
for
environmental
professionals
(
EPs).
"
Allows
for
professional
judgment,
which
is
critical
in
the
proper
evaluation
of
the
risk
associated
with
a
particular
site."
Requires
a
broader
scope
of
environmental
inquiry
by
building
on
and
significantly
improving
the
existing
process
(
ASTM
E­
1527)
that
is
familiar
to
many
clients
(
users)
who
have
all
appropriate
inquiry
studies
performed.
This
approach
enhances
the
process
and
the
familiarity
will
help
avoid
'
confusion'
among
users
and
will
also
help
reduce
or
limit
the
cost
impacts.
"
Provides
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
that
does
not
currently
exist
with
the
ASTM
process."
While
not
perfect,
this
rule
would
result
in
'
raising
the
bar'
on
the
quality
of
AAI
studies,
as
there
are
enough
safeguards
and
protections
within
the
proposed
rule.
We
urge
you
to
pass
and
implement
this
rule
in
the
best
interest
of
the
public
at
large.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
McHugh,
Dan
Comment
Number:
0085
Excerpt
Number:
2
Excerpt
Text:
In
my
opinion,
the
proposed
AAI
rule
should
be
approved
as
is
with
no
changes.
Negotiated
rules
all
have
some
weaknesses
depending
on
the
point
of
view
but
this
proposed
rule
seems
reasonable
and
will
definitely
improve
the
quality
of
ESAs
in
the
industry.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Fulk,
Kevin
J
Comment
Number:
0086
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
I
support
the
proposed
rule
because
it
establishes
minimum
qualifications
for
an
10
environmental
professional
and
will
provide
a
better
approach
for
developers
/
landowners
to
handle
redevelopment
on
brownfield
sites
in
our
nations
urban
areas
than
what
currently
exists.

The
minimum
qualifications
for
an
environmental
professional
will
help
the
industry
apply
a
higher
level
of
qualifications/
experience
to
solve
environmental
issues
for
real
estate
development
and
redevelopment.
This
EPA
legislation
should
also
give
developers
a
higher
level
of
confidence
to
tackle
brownfields
sites,
which
will
significantly
aid
in
"
protecting
human
health
and
the
environmental"
for
generations
to
come.

I
urge
the
Agency
to
adopt
the
rule
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
CERCLA
Research
Center
Subcommittee
Comment
Number:
0103
Excerpt
Number:
1
Excerpt
Text:
The
Focus
Group
stands
in
support
of
the
proposed
rule
for
all
appropriate
inquiries
as
written.
It
is
reflective
of
the
issues
and
concerns
identified
and
addressed
in
the
negotiated
rulemaking
process,
and
as
such
represents
a
step
forward
in
protecting
human
health
and
the
environment
in
a
manner
that
does
not
hinder
the
productive
reuse
of
properties
at
which
the
perception
of
risk
poses
a
barrier.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Crocetti,
Charles
Comment
Number:
0110
Excerpt
Number:
3
Other
Sections:
NEW
­
6.7
­
Negotiated
rulemaking
committee/
process
Excerpt
Text:
The
proposed
rule
was
developed
based
on
the
work
of
a
Negotiated
Rulemaking
11
Committee
represented
by
a
wide
spectrum
of
interests,
including
the.
American
Society
of
Civil
Engineers,
the
National
Groundwater
Association,
and
ASFE.
The
latter
groups
represent,
I
believe,
some
of
the
premiere
technical/
trade
organizations
in
the
environmental
industry,
and
each
serves
as
a
valuable
resource
for
the
dissemination
of
technical
information
and
research
relative
to
environmental
work.

In
summary,
I
urge
EPA
to
adopt
the
All
Appropriate
Inquiry
rule
as
proposed.
I
very
much
appreciate
the
opportunity
to
comment
on
the
proposed
rule.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
ASCE
Comment
Number:
0126
Excerpt
Number:
1
Excerpt
Text:
The
American
Society
of
Civil
Engineers
(
ASCE)
is
pleased
to
comment
in
strong
support
of
the
regulation
proposed
on
August
26,
2004,
to
establish
federal
standards
and
practices
for
conducting
"
all
appropriate
inquiries"
required
under
sections
101
(
35)(
B)(
ii)
and
(
iii)
of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
(
CERCLA).
U.
S.
EPA,
Proposed
Rule,
Standards
and
Practices
for
All
Appropriate
Inquiries,
69
Fed.
Reg.
52,542.

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).

ASCE
was
privileged
to
participate
in
the
consensus
process
established
by
the
Agency
to
draft
the
proposed
rule
to
be
adopted
in
compliance
with
the
Small
Business
Liability
Relief
and
Brownfields
Redevelopment
Act,
Pub.
L.
107­
118,
Jan.
11,
2002,
115
Stat.
2356.
The
regulation
proposed
on
August
26
fairly
represents
the
interests
of
a
broad
coalition
of
engineering,
commercial
professional,
technical,
and
environmental
organizations.
When
fully
implemented,
the
regulation
will
ensure
the
expeditious
cleanup
of
thousands
of
abandoned
properties
that
then
will
be
safely
returned
to
productive
use.
12
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0281
Excerpt
Number:
1
Excerpt
Text:
I
am
an
environmental
professional
working
in
the
Brownfields
industry.
I
want
to
offer
my
support
for
the
AAI
proposed
rule.
We
need
to
maintain
a
strong
standard
that
is
implemeneted
by
environmental
professionals.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Webster,
O.
Christopher
Comment
Number:
0285
Excerpt
Number:
2
Excerpt
Text:
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Engels,
Joseph
Comment
Number:
0287
Excerpt
Number:
2
Excerpt
Text:
Please
adopt
the
rule
as
written.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
13
Commenter
Organization
Name:
Foppe
Technical
Group
Comment
Number:
0289
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
As
an
environmental
company
that
performs
AAI,
we
would
like
to
add
our
voice
in
support
of
the
proposed
rule.
It
is
imperative
that
the
technical
nature
of
a
Phase
I
be
performed
by
well
trained,
competent
professionals.
The
proposed
rules
elevated
the
requirements
to
a
necessary
level
to
ensure
that
competent
work
is
performed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
5
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Moors,
Scott
Comment
Number:
0298
Excerpt
Number:
3
Excerpt
Text:
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
14
Commenter
Organization
Name:
Farnsworth,
Sam
Comment
Number:
0299
Excerpt
Number:
1
Excerpt
Text:
I
support
the
implementation
of
the
Proposed
Rule
for
AAI.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
QORE,
Inc
Comment
Number:
0307
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
I
think
this
is
a
good
and
necessary
standard.
Minimum
qualification
criteria
for
environmental
professionals
must
be
set.
The
public
will
be
provided
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
that
does
not
currently
exist
with
the
ASTM
process.
I
am
pleased
to
support
the
AAI
rule.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Privette,
Kevin
Comment
Number:
0309
Excerpt
Number:
1
Excerpt
Text:
As
a
professional
engineer
and
practicing
consultant
for
16
years,
I
request
that
the
proposed
AAI
rule
be
approved
and
implemented.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
May,
Thomas
Comment
Number:
0310
Excerpt
Number:
3
Excerpt
Text:
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.
15
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
the
today's
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Griebel,
Russell
Comment
Number:
0316
Excerpt
Number:
2
Excerpt
Text:
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
CE&
MT
Comment
Number:
0318
Excerpt
Number:
1
Excerpt
Text:
I
do
agree
with
the
proposed
rules.
As
the
president
of
a
geotechnical
engineering
firm
routinely
engaged
in
ESA's,
we
support
the
proposed
rules.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
QORE,
Inc
Comment
Number:
0324
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
We
have
long
needed
to
establish
a
minimum
level
of
qualifications
for
individuals
performing
environmental
assessments,
particularly
those
done
in
preparation
for
property
transactions.
The
proposed
rule
accomplishes
that
goal
and
for
this
reason
I
support
it.
16
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
5
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
1
Excerpt
Text:
Patricia,
as
you
know,
I
represented
ASFE/
The
Best
People
on
Earth
and
environmental
professionals
on
the
negotiated
rulemaking
committee
that
developed
the
language
in
the
proposed
AAI
rule.
As
such,
I
support
the
proposed
rule
and
urge
its
adoption
by
the
EPA.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
7
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
EPA
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
17
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
5
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Gallagher,
Paul
Comment
Number:
0383
Excerpt
Number:
2
Excerpt
Text:
I
am
in
favor
of
the
AAI
rule
as
proposed.
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
5
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
18
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Stejer,
Warham
Comment
Number:
0385
Excerpt
Number:
1
Excerpt
Text:
I
would
like
voice
my
support
for
the
All
Appropriate
Inquiry
(
AAI)
Standard
proposed
by
the
EPA.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Stejer,
Warham
Comment
Number:
0385
Excerpt
Number:
2
Excerpt
Text:
It
would
be
a
mistake
to
abandon
enactment
of
the
All
Appropriate
Inquiry
standard
based
on
the
negative
sentiments
expressed
by
individuals
who
would
no
longer
qualify
as
"
environmental
professionals,"
because
they
lack
the
education
and/
or
experience
that
would
be
needed
to
conduct
brownfield
studies.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
the
proposed
definition
of
environmental
professional
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
5
Excerpt
Text:
In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
19
the
proposed
rule.
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Alizadeh,
Ed
Comment
Number:
PM­
0127­
0001
Excerpt
Number:
1
Excerpt
Text:
I
want
to
just
give
a
couple
of
comments
regarding
the
rule.
First
of
all,
I
think
it
provides
clarity
for
purchasers.
The
creation
of
the
bona
fide
prospective
purchaser
of
defense
and
contiguous
property
owner
of
defense
will
promote
property
transfers
and
redevelopment
of
properties
to
their
best
use.

Those
have
been
considerable
hindrances
to
development
in
the
past,
and
I
think
clarifying
that
in
this
rule
is
of
benefit
to
prospective
purchasers.
I
also
think
the
rule
enhances
public
confidence
in
environmental
assessments
and
redevelopment
of
brownfields
by
creating
a
definition
for
environmental
professional,
which
I
know
is
a
difficult
definition
to
arrive
at,
but
by
creating
specific
education,
experience,
and
certification
requirements,
the
rule
provides
the
public
with
confidence
that
the
studies
will
be
protective
of
human
health
and
the
environment.

I
also
think
it
provides
public
confidence
because
the
rule
expands
the
database
review
requirements
and
provides
for
a
nonprescriptive
approach
and
allows
for
engineering
or
professional
judgment
in
terms
of
what
assessments
should
be
done.

That
will
result
in
more
data
being
reviewed,
which
will
provide
more
confidence
in
the
findings
and
conclusions
and
recommendations
that
are
put
forward,
based
on
these
assessments.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Alizadeh,
Ed
Comment
Number:
PM­
0127­
0001
Excerpt
Number:
2
Other
Sections:
NEW
­
3.13.4
­
Shelf
life
should
be
extended
beyond
180
days/
one
year
Excerpt
Text:
Lastly,
I
think
the
rule
­­
By
extending
the
time
period
that
the
inquiries
were
good
from
six
months
to
a
year
will
result
in
being
a
benefit
for
developers.
Frequently
developers
from
start
to
finish
take
much
longer
than
six
months
before
the
deal
is
finalized,
and
by
extending
that
to
a
year,
will
provide
a
benefit
to
developers
who
are
trying
to
redevelop
20
brownfield
properties.
In
summary,
the
rule
makes
redeveloping
brownfields
sites
more
attractive
to
potential
developers.
It
sets
minimum
criteria
for
environmental
professionals,
which
enhances
the
public
confidence,
and
although
through
the
AAI
studies,
the
fees
will
potentially
increase
due
to
the
added
research
requirements,
it
will
enhance
the
confidence
and
will
be
protective
of
human
health
and
the
environment.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
The
final
rule
retains
and
clarifies
the
requirement
that
all
appropriate
inquiries
be
conducted
within
one
year
prior
to
the
date
of
acquisition
of
the
property,
with
certain
aspects
updated
within
180
days.
21
1.1.1.2
Support
of
the
Performance
Standard
Commenter
Organization
Name:
Franz,
Barry
Comment
Number:
0068
Excerpt
Number:
1
Other
Sections:
NEW
­
6.1
­
EPA
should
adopt
ASTM
standard
rather
than
develop
separate
regulations
Excerpt
Text:
Some
key
points
of
the
AAI
rule
that
I
like
is
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach
rather
than
a
"
prescriptive/
mandatory"
application
of
a
standard
(
e.
g.
ASTM
El527­
00).
This
approach
allows
an
environmental
professional
to
resolve
data
gaps
based
upon
the
professional's
experience.
Another
critical
aspect
of
the
AAI
rule
that
I
like
and
appreciate,
is
the
definition
of
what
constitutes
an
environmental
professional
and
what
qualifications
one
should
have.

However,
I
am
not
entirely
convinced
that
we
need
the
AAI
rule.
The
ASTM
Standard,
El
527­
00,
has
served
as
the
de
facto
standard
for
a
number
of
years
and
is
recognized
by
the
real
estate
and
financial
communities
as
an
acceptable
demonstration
for
environmental
due
diligence.
Although
I
have
a
number
of
issues
with
the
ASTM
Standard,
I
can
not
state
that
it
has
not
worked
to
the
satisfaction
of
my
clients,
and
the
real
estate
and
financial
communities.
It
has
performed
reasonable
in
defining
the
overall
environmental
risk
posed
by
a
site.

In
summary,
if
we
must
have
a
promulgated
regulation,
then
the
AAI
rule
as
proposed
is
acceptable.
However,
I
believe
that
the
clarifications
made
in
the
rule
could
be
adopted
into
the
existing
ASTM
standard
and
this
standard
would
serve
just
as
well.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

With
regard
to
the
use
of
the
ASTM
E1527­
2000
standard,
prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
has
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process
to
address
the
inconsistencies.
EPA
has
determined
that
the
updated
standard
is
compliant
with
the
statute
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
comply
with
the
final
rule.
22
Commenter
Organization
Name:
Van
Reenen,
Dirk
Comment
Number:
0070
Excerpt
Number:
2
Excerpt
Text:
I
am
pleased
that
the
proposed
AAI
rule
establishes
definitions
of
"
environmental
professional"
and
encourages
use
of
professional
judgment.
I
have
seen
too
many
examples
of
environmental
site
assessments
performed
by
marginally
or
unqualified
individuals
that
seem
to
consider
an
assessment
to
be
little
more
than
filling
out
a
checklist.
I
believe
that
the
proposed
rule
will
improve
the
quality
of
environmental
site
assessments.
I
also
am
pleased
that
the
proposed
rule
encourages
a
performance­
based
approach
rather
than
the
mandatory
use
of
a
standard.
In
my
opinion,
this
will
result
in
a
higher
quality
assessment
and
fewer
reports
that
are
merely
the
regurgitation
of
a
checklist.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

It
is
the
Agency's
contention
that
the
performance­
based
approach
effectuates
Congressional
intent.
The
language
used
by
Congress
in
describing
the
action
to
be
taken
under
this
rule
is
"
all
appropriate
inquiries."
Because
each
property
for
which
all
appropriate
inquiries
is
undertaken
is
unique,
"
appropriate"
inquiries
for
one
property
may
not
be
"
appropriate"
for
another.
This
uniqueness
requires
differing
approaches.
Therefore,
the
final
rule
is
promulgated
in
a
manner
that
allows
the
flexibility
needed
to
engage
in
all
appropriate
inquiries
for
any
property.
The
purpose
behind
establishing
a
performance
standard
for
the
conduct
of
all
appropriate
inquiries
is
to
allow
for
a
comprehensive
assessment
of
available
information
about
the
potential
environmental
conditions
at
a
property,
while
avoiding
duplicative
requirements.
Sections
312.20(
e)
and
(
f)
of
the
final
rule
set
forth
objectives
for
the
all
appropriate
inquiries
investigation
and
performance
factors
for
obtaining
the
information
established
within
the
objectives.
As
explained
in
the
preamble
to
the
proposed
rule,
the
advantage
of
a
performance­
based
approach
over
a
checklist
approach
to
conducting
the
inquiries
is
that
multiple
sources
of
information
need
not
be
consulted
for
the
same
information.

The
final
rule
(
as
did
the
proposed
rule)
encourages
environmental
professionals
to
use
discretion
and
professional
judgment
in
determining
the
best
sources
of
information
and
the
best
manner
in
which
to
obtain
information,
given
the
objectives
of
the
regulations
and
the
specific
characteristics
of
the
property
being
assessed.
EPA
anticipates
that
this
flexible
approach
will
encourage
the
efficient
use
of
resources
in
the
case
of
properties
that
may
not
require
as
rigorous
of
an
investigation
due
to
available
information
about
a
property
or
particular
knowledge
about
a
property
that
may
not
be
available
in
the
case
of
other
properties,
while
at
the
same
time
maintaining
adequate
standards
to
ensure
environmental
protection
in
the
case
of
all
properties.

Commenter
Organization
Name:
Thacker,
Barry
K
Comment
Number:
0071
23
Excerpt
Number:
3
Other
Sections:
NEW
­
3.12.2
­
The
rule
should
not
require
sampling
and
analysis
Excerpt
Text:
Furthermore,
I
support
the
AAI
rule
changes
because
they
encourage
a
performancebased
approach,
rather
than
a
prescriptive
"
mandatory"
application
of
a
"
standard,'"
and
allow
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Freitag,
George
A
Comment
Number:
0072
Excerpt
Number:
3
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Engels,
Joseph
G
Comment
Number:
0088
Excerpt
Number:
1
Excerpt
Text:
As
a
practicing
environmental
professional
with
close
to
25
years
of
experience
evaluating
and
remediating
brownfield
sites,
I
am
encouraged
by
the
proposed
All
Appropriate
Inquiry
rule.
In
particular,
I
am
encouraged
by
the
performance
based
approach
that
is
proposed,
rather
than
the
current
prescriptive
ASTM
approach.
As
proposed,
AAI
investigations
should
be
designed
by
qualified
professionals
based
on
specific
circumstances,
site
conditions
and
past
and
future
uses
of
the
property.
Qualified
24
professionals
provide
their
opinions
based
on
their
education,
experience
and
technical
expertise.
The
establishment
of
minimum
education
and
experience
standards
for
environmental
professional
qualifications
are
long
overdue
in
this
area
of
practice.
Recognition
of
licensing/
certification
by
state
or
federal
agencies
is
also
a
very
positive
aspect
of
the
rule
because
it
adds
the
aspect
associated
with
protecting
the
public
welfare
that
is
intrinsic
to
these
licensing
programs.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Simon,
Richard
M
Comment
Number:
0089
Excerpt
Number:
4
Other
Sections:
NEW
­
3.12.2
­
The
rule
should
not
require
sampling
and
analysis
Excerpt
Text:
I
like
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach,
rather
than
a
prescriptive
'
mandatory'
application
of
a
'
standard,'
and
allows
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.
I
also
believe
that
the
broader
scope
of
environmental
inquiry
and
wider
application
of
the
rule
will
result
in
the
development
of
more
thorough
scopes
of
services,
contracts,
and
reports.
This
result
will
be
of
significant
benefit
to
my
firm,
the
client,
and
most
of
all,
the
public.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Sanborn,
Head
&
Associates,
Inc
Comment
Number:
0090
Excerpt
Number:
1
Excerpt
Text:
We
support
EPA's
proposed
rule
based
on
the
following
reasons:
'
The
proposed
rule
clearly
establishes
minimum
qualification
criteria
for
environmental
professionals
that
are
consistent
with
the
level
of
education/
experience
typically
necessary
to
collect
and
interpret
environmental
data,
and
develop
conclusions
and
recommendations
based
on
analysis
of
the
data
collected.'
The
proposed
rule
builds
upon
and
advances
the
standard
of
practice
for
environmental
inquiry
related
to
property
transactions,
and
allows
for
the
exercise
of
professional
judgment
in
evaluating
the
environmental
risks
potentially
posed
by
conditions
at
a
Site,
rather
than
following
a
prescriptive
approach.
'
The
proposed
rule
25
was
developed
based
on
the
work
of
a
Negotiated
Rulemaking
Committee
represented
by
a
wide
spectrum
of
interests,
including
the
American
Society
of
Civil
Engineers,
the
National
Groundwater
Association,
and
ASFE.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Crocetti,
Charles
Comment
Number:
0110
Excerpt
Number:
2
Excerpt
Text:
The
proposed
rule
builds
upon
and
advances
the
standard
of
practice
for
environmental
inquiry
related
to
property
transactions,
and
allows
for
the
exercise
of
professional
judgment
in
evaluating
the
environmental
risks
potentially
posed
by
conditions
at
a
Site,
rather
than
following
a
prescriptive
approach.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
12
Excerpt
Text:
The
proposed
objectives
and
performance
factors
for
an
all
appropriate
inquiries
requirements
(
page
52558­
52559).

The
objectives
and
performance
factors
described
in
the
proposed
rule
(
§
312.20(
d),
§
312.20
(
e),
§
312.23(
a),
§
312.23(
c),
§
312.23(
d),
§
312.24,
§
312.26,
§
312.27,
and
§
312.30)
are
generally
in
keeping
with
the
standards
currently
utilized
by
environmental
professionals
to
perform
all
appropriate
inquiries
and
therefore
are
reasonable.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.
26
Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
1
Excerpt
Text:
Overall,
I
support
the
AAI
rule,
as
I
believe
it
will
significantly
improve
the
environmental
inquiry
process
by
providing
performance­
based
requirements
and
broadening
the
scope
of
an
environmental
inquiry
to
a
degree
that
will
be
much
more
protective
of
human
health
and
the
environment,
while
promoting
the
productive
use
of
properties
subject
to
the
Brownfields
Revitalization
Act.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
NGWA
Comment
Number:
0265
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rules
emphasize
a
site­
specific,
performance
based
approach
that
provides
for
flexibility
and
the
exercise
of
professional
judgment.
The
rule's
approach
achieves
environmental
and
public
health
protection
while
moving
sites
into
productive
use
efficiently
and
cost
effectively.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Belaire,
Kent
Comment
Number:
0267
Excerpt
Number:
4
Excerpt
Text:
The
AAI
rule
improves
the
existing
environmental
inquiry
process
because
it
encourages
a
performance­
based
approach
instead
of
a
prescriptive
approach
and
broadens
the
scope
of
the
environmental
inquiry
where
it
is
needed.
The
performance­
based
approach
provides
for
flexibility
by
allowing
studies
to
be
designed
for
the
specific
circumstances
associated
with
a
property.
The
broader
scope
will
result
in
studies
that
will
be
protective
of
human
health
and
the
environment
and
promote
the
productive
use
of
properties
subject
to
the
Brownfields
Revitalization
Act.
27
In
summary,
I
support
the
AAI
rule.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
GZA
GeoEnvironmental
Comment
Number:
0279
Excerpt
Number:
1
Excerpt
Text:
I
support
adoption
of
the
proposed
all
appropriate
inquiry
rule
because
it
emphasizes
a
performance
based
approach,
sets
minimum
criteria
for
environmental
professionals
(
it
is
about
time
this
was
implemented)
and
allows
for
professional
judgement.
With
over
20­
years
of
experience
in
environmental
and
engineering
consulting,
I
find
it
refreshing
that
USEPA
has
established
minimum
requirements
for
an
environmental
profession.
It
is
important
that
these
minimum
standards
not
be
relaxed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Billington,
Edward
Comment
Number:
0284
Excerpt
Number:
2
Other
Sections:
NEW
­
3.12.2
­
The
rule
should
not
require
sampling
and
analysis
Excerpt
Text:
I
also
support
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach,
rather
than
a
mandatory
application
of
a
prescriptive
standard,
and
allows
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.
The
broader
scope
of
environmental
inquiry
and
wider
application
of
the
rule
should
result
in
the
development
of
more
thorough
scopes
of
services,
contracts,
and
reports.
I
believe
the
result
will
be
of
significant
benefit
to
the
public.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.
28
Commenter
Organization
Name:
Webster,
O.
Christopher
Comment
Number:
0285
Excerpt
Number:
1
Excerpt
Text:
As
a
professional
engineer
I
support
the
proposed
rule.
The
proposed
rule
uses
a
performance­
based
approach
instead
of
prescriptive­
based
approach,
and
as
such,
recognizes
that
the
professional
needs
to
develop
the
AAI
studies
to
address
the
specific
circumstances
posed
by
the
property
and
past
uses.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Willis,
George
Comment
Number:
0288
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
I
like
the
fact
that
it
sets
a
minimum
qualification
and
criteria
level
for
the
professionals
in
the
environmental
practice
area.
It
is
performance
based
and
includes
an
education
component
which
is
not
unlike
the
successful
professional
practices
found
in
the
engineering
industry.
The
use
of
professional
judgement
in
evaluating
site
risk
is
imperative
and
supported
by
the
rule.
If
adopted,
the
All
Appropriate
Inquiry
Rule
should
go
a
long
way
towards
improving
the
quality
of
the
practitioners
in
the
field
and
more
significantly,
actually
protecting
human
health
and
the
environment.
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
29
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Whitaker,
Robert
Comment
Number:
0297
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
I
urge
you
to
adopt
the
proposed
Rule.
It
will
serve
to
raise
the
bar
for
personnel
credentials
and
establish
a
performance
based
approach
to
environmental
services
that
promotes
professional
judgment
instead
of
a
one
size
fits
all
"
cookbook"
approach.
The
environmental
professional
services
industry
has
taken
an
unfortunate
turn
toward
becoming
a
cottage
industry
in
recent
years
and
it
is
in
the
public
interest
to
curtail
this
trend.
The
proposed
rule
will
build
on
the
success
of
the
process
established
in
the
current
ASTM
standard
and
provide
the
public
and
end
users
of
these
services
with
a
better
understanding
of
what
the
process
entails.
In
summary
approving
this
rule
is
a
win­
win
proposal
for
the
profession
and
the
public.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
30
Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Moors,
Scott
Comment
Number:
0298
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
I
support
the
proposed
rule
and
I
urge
the
Agency
to
adopt
it
as
proposed.
The
proposed
AAI
rule:
??
Encourages
project/
client/
public
sensitivity
by
permitting
the
flexibility
derived
from
a
performance­
based
approach
instead
of
a
prescriptive
approach.
The
rule
would
be
applicable
to
any
type
of
property.
??
Sets
minimum
qualification
criteria
for
environmental
professionals
(
EPs).
??
Allows
for
professional
judgment,
which
is
critical
in
the
proper
evaluation
of
the
risk
associated
with
a
particular
site.
??
Requires
a
broader
scope
of
environmental
inquiry
by
building
on
and
significantly
improving
the
existing
process
(
ASTM
E­
1527)
that
is
familiar
to
many
clients
(
users)
who
have
all
appropriate
inquiry
studies
performed.
This
approach
enhances
the
process
and
the
familiarity
will
help
avoid
?
gconfusion?
h
among
users
and
will
also
help
reduce
or
limit
the
cost
impacts.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Davis,
Colin
Comment
Number:
0300
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
I
am
in
support
of
the
proposed
AAI
rule
due
to:
It
establishes
minimum
qualifcation
criteria
for
environmental
professionals.
Allows
for
professional
judgement
in
evaluation
of
risk
associated
with
a
site.
Encourages
project/
client/
public
sensitivity
by
permitting
the
flexibility
derived
from
a
performance
based
approach
instead
of
a
perspective
approach.
Broader
scope
of
study
by
improving
the
current
standard
defined
in
ASTM
E1527.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
31
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Erb,
Ronald
Comment
Number:
0301
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
I
would
like
to
add
my
support
to
the
proposed
rule
for
Standards
and
Practices
for
All
Appropriate
Inquiry.
I
believe
this
service
should
be
handled
by
persons
with
a
minimum
of
training
and
expertise
as
outlined
in
the
proposed
rule.
Site
specific,
performance
based
approaches
are
important
in
the
type
of
work
performed
by
environmental
professionals.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
also
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0303
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
I
approve
of
the
proposed
rule
for
AAI.
The
prescriptive
approach
currently
used
in
the
ASTM
method
is
not
applicable
to
many
projects/
sites;
therefore,
a
more
flexible
approach,
as
is
proposed
in
the
AAI
is
an
improvement.
The
AAI
proposed
rule
also
sets
minimum
qualifications
for
professions
conducting
the
inquiries
that
are
more
appropriate
to
the
inquiry
process.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.
32
Commenter
Organization
Name:
May,
Thomas
Comment
Number:
0310
Excerpt
Number:
2
Excerpt
Text:
I
also
support
the
proposed
rule
because
it
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
The
proposed
rule
is
also
vastly
superior
to
what
is
currently
performed
for
property
transactions
for
two
reasons:
1.
A
performance­
based
approach
instead
of
a
prescriptive
approach
is
employed,
which
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
property
type.
2.
It
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
protect
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
The
proposed
rule
appears
to
balance
the
concerns
of
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.
33
Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
8
Excerpt
Text:
Objectives
and
Performance
Factors.
Well
done.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
6
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
I
am
convinced
that
the
proposed
AAI
rule
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
broader
scope
of
the
environmental
inquiry
provides
users
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.
Commenter
Organization
Name:
Smith,
Michael
Comment
Number:
0360
Excerpt
Number:
4
Excerpt
Text:
I
like
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach,
rather
than
a
prescriptive
"
mandatory"
application
of
a
"
standard,"
and
allows
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.
I
also
believe
that
the
broader
scope
of
environmental
inquiry
and
wider
application
of
the
rule
will
result
in
the
development
of
more
thorough
scopes
of
services,
contracts,
and
reports.
This
result
will
be
of
significant
benefit
to
my
firm,
the
client,
and
most
of
all,
the
public.

Response:
34
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
8
Excerpt
Text:
In
the
preamble
(
page
52559,
1st
column),
the
Agency
states
that
the
proposed
performance
factors
in
§
312.20(
e)
are
"
guidelines
to
be
followed
in
conjunction
with
the
performance
objectives
for
the
all
appropriate
inquiries."
It
is
recommended
that
the
Agency
incorporate
language
in
the
regulation
to
clearly
state
that
these
are
guidelines.

Response:
The
regulatory
language
at
40
CFR
312.20(
f)
states
"
In
performing
each
of
the
standards
and
practices
set
forth
in
this
subpart
and
to
meet
the
objectives
stated
in
paragraph
(
e)
of
this
section,
the
persons
identified
under
section
312.1(
b)
or
the
environmental
professional
as
defined
in
section
312.10
(
as
appropriate
to
the
particular
standard
and
practice)
must
seek
to..."
(
emphasis
added).
By
including
in
the
regulatory
language
the
phrase
"
must
seek
to"
the
Agency
designates
the
performance
factors
as
guidelines
or
objectives
for
how
to
perform
the
all
appropriate
inquiries
in
compliance
with
the
statutory
criteria
and
the
regulatory
objectives
established
in
the
final
rule.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property
with
sufficient
specificity
to
focus
on
the
relevant
environmental
conditions
that
may
exist
at
that
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
35
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.4
­
The
proposed
rule
balances
concerns
of
the
stakeholders
without
compromising
the
environment
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
36
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
5
Excerpt
Text:
­
The
proposed
objectives
and
performance
factors
for
the
all
appropriate
inquiries
requirements.

­­
While
we
agree
it
is
important
to
approach
an
all
appropriate
inquiry
with
a
concise
set
of
objectives
and
performance
factors,
we
believe
that
too
much
stress
is
placed
here
on
the
approach
rather
then
stressing
the
quality
of
investigation.
It
is
our
experience
that
information
relevant
to
one
criterion
is
rarely
collected
more
than
once.
Therefore,
we
believe
it
is
sufficient
to
establish
in
a
final
rule
that
the
environmental
professional
will
determine
the
best
process
and
sequence
for
collecting
and
analyzing
all
required
information.
We
are
aware,
however,
from
years
of
experience
that
the
sequence
of
information
gathering
is
more
efficient
if
historical
resources
are
reviewed
first,
followed
by
a
review
of
government
databases
and
records,
and
then
the
site
visit.
Characterizing
the
historic
uses
of
a
site
and
identifying
listed
sites
within
a
½
mile
radius
of
the
subject
property
sets
the
stage
for
a
more
complete
site
visit.
In
addition,
although
Intertox
opposes
this,
if
sampling
and
analysis
is
determined
to
be
an
acceptable
activity
in
the
all
appropriate
inquiry,
then
knowing
the
background
of
the
site
will
help
determine
where
sampling
should
occur
on
a
property.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

The
Agency
notes
that
the
final
rule
includes
no
requirements
to
conduct
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
investigation.
37
Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
4
Excerpt
Text:
3)
Proposed
objective
and
performance
factors
for
AAI
a)
Page
#
52578
b)
View:
I
support
the
objective
and
performance
factors.
Objective
and
performance
factors
are
designed
to
achieve
a
higher
standard
of
Phase
I
report,
and
more
consistent
Phase
I
product
in
order
to
allow
the
legal
system
to
apply
an
AAI
standard
for
purchasers
of
contaminated
land.

c)
Assumptions:
The
current
voluntary
standard
(
ASTM)
is
not
sufficient
for
AAI
and
not
consistently
applied
in
the
practice
of
Phase
I
reports.

d)
Burden:
Will
require
the
EP
firms
to
reformat
their
Phase
I
reports
and
alter
their
report
preparation
process.
This
may
increase
report
costs
slightly.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

EPA
agrees
with
the
commenter
that
the
requirements
included
in
the
final
rule
will
slightly
increase
the
costs
of
performing
an
environmental
site
assessment
over
the
current
cost
of
performing
an
assessment
in
compliance
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
1
Excerpt
Text:
Discussion
of
Scope
­
One
positive
outcome
of
EPA's
development
of
a
definition
of
AAI
is
promotion
of
industry
discussion.
In
recent
years,
much
of
the
environmental
industry
has
moved
toward
a
formulaic
approach
to
environmental
investigation,
frequently
completing
certain
steps
without
an
apparent
understanding
for
the
significance
of
the
findings
of
the
investigation.
Hopefully,
the
implementation
of
EPA's
standard
will
result
in
completion
of
more
thoughtful
investigations.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
38
Commenter
Organization
Name:
Haley
and
Aldrich
Comment
Number:
0432
Excerpt
Number:
1
Excerpt
Text:
In
general,
we
support
the
All
Appropriate
Inquiry
rule;
in
particular
the
performance
based
approach
that
is
proposed,
rather
than
the
current
prescriptive
ASTM
approach.
We
support
the
notion
that
the
proposed
rule
requires
that
the
opinions
provided
should
be
by
qualified
professionals
and
not
just
anyone
with
limited
training
can
conduct
such
an
assessment
contains.
We
also
agree
with
the
lack
of
requirements
regarding
the
length,
structure,
or
specific
format
of
a
written
report;

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
5
Excerpt
Text:
312.24,
312.25
and
312.26
Each
of
these
sections
addresses
documents
to
be
reviewed
in
conducting
AAIs.
It
is
refreshing
to
have
some
latitude
in
the
regulations
to
exercise
professional
judgement
as
to
how
to
conduct
the
inquiries
addressed
in
these
Parts.
However
I
can
foresee
circumstances
where
EPs
could
reach
different
conclusion
based
on
their
professional
judgement
which
could
lead
to
legal
battles.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Please
see
response
to
comment
number
0070,
excerpt
2.

If
more
than
one
environmental
professional
conducts
environmental
inquiries
at
a
particular
property
and
the
environmental
professionals
reach
different
conclusions
regarding
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
at
the
property,
it
is
the
responsibility
of
prospective
landowner,
with
whom
the
liability
39
for
releases
may
rest,
to
resolve
the
differences
in
opinion.
In
such
cases,
the
prospective
landowner
may
want
to
evaluate
the
merits
of
conducting
additional
investigations.

Commenter
Organization
Name:
Grissom,
Glen
Comment
Number:
PM­
0127­
0009
Excerpt
Number:
1
Excerpt
Text:
I
believe
the
standard
has
several
good
points
to
offer,
including
the
definition
of
environmental
professional,
as
a
very
positive
step,
to
keep
work
product
high.

I
also
move
that
if
it
was
a
positive
step
that
these
standards
were
specifically
designed
to
meet
the
CERCLA's
all
appropriate
inquiries
standard,
so
there
can
be
no
question
down
the
road
on
a
project,
whether
they're
going
to
be
covered
under
this
standard,
like
under
the
current
ASTM
standard.

I
believe
it's
also
positive
that
the
standard
emphasizes
several
information
sources
that
aren't
currently
stressed,
such
as
low
purchase
price,
environment
liens,
and
engineering
controls,
especially
given
the
changes
that
are
going
in
the
environmental
field,
before
moving
toward
corrective
actions,
where
things
such
as
environmental
liens
and
engineering
controls
are
becoming
much
more
common.

And
lastly,
I
believe
that
it
is
positive,
it
is
a
result
based
standard,
rather
than
simply
a
checklist
of
items
to
review,
and
you
just
­
you
go
through
the
checklist,
you
did
everything
that
was
there,
and
you're
done,
whether
you
actually
produced
a
good
product
or
not.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.
40
1.1.1.3
The
Proposed
Rule
Will
Improve
Quality
of
Environmental
Site
Assessments
Commenter
Organization
Name:
Virginia
Geotechnical
Services
Comment
Number:
0034
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
I
am
in
support
of
the
proposed
rule
for
Standards
and
Practices
for
AAI.
The
qualifications
section,
in
particular,
has
long
been
needed
and
will
vastly
improve
the
quality
of
environmental
assessments
by
setting
an
appropriate
level
of
qualifications
and
experience
for
persons
holding
themselves
out
as
an
"
environmental
professional."
Because
ASTM
has
proven
it
cannot
address
the
qualifications
issue,
EPA
is
the
only
appropriate
venue
that
can
set
this
standard.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Cooper,
Ivan
A
Comment
Number:
0047
Excerpt
Number:
3
Excerpt
Text:
Third,
the
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
will
allow
me
to
continue
to
be
able
to
provide
the
expertise
and
experience
that
I
have
gained
doing
ASTM
E­
1527
studies,
and
therefore
continue
to
enhance
my
value
to
my
firm.
Not
having
to
learn
a
whole
new
process
will
also
ensure
the
cost­
effectiveness
of
my
services.

Fourth,
those
who
perform
the
best
are
likely
to
get
the
most
work.
I
believe
that
the
Rule
will
be
successful
in
"
raising
the
bar"
on
the
quality
of
AAI
studies,
because
there
are
enough
safeguards
and
protections
within
the
proposed
rule
to
make
clients
far
more
concerned
about
peoples'
qualifications.

In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
41
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Vellone,
Daniel
A
Comment
Number:
0048
Excerpt
Number:
3
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfield's
Law.
This
can
only
be
accomplished
effectively
if
licensed
Professional
Engineers
and
Geologists
are
in
Responsible
Charge
of
the
AAI
process.

In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
The
final
rule,
as
did
the
proposed
rule,
allows
for
persons
who
are
not
a
licensed
professional
engineer
or
a
licensed
professional
geologist
to
qualify
as
environmental
professionals
if
they
meet
certain
educational
and
experience
qualifications.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Tedlock,
Rowley
R
Comment
Number:
0051
Excerpt
Number:
1
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons
including
the
minimum
education
and
42
experience
qualifications
for
"
environmental
professionals"
conducting
AAI
studies.
The
proposed
rule
builds
on
and
improves
the
existing
environmental
inquiry
process
for
property
transactions.

I
am
in
favor
of
the
AAI
rule
as
proposed,
and
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Worcester,
Alfred
P
Comment
Number:
0065
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.5
­
The
cost
impacts
of
the
proposed
rule
will
not
be
significant
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons,
some
of
which
are
expressed
here.

The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Roark,
Michael
Comment
Number:
0081
Excerpt
Number:
1
43
Excerpt
Text:
I
believe
the
proposed
AAI
rule
will
be
a
great
improvement
over
the
existing
ASTM
Phase
I
ESA
standard.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Cheeks,
J.
Richard
Comment
Number:
0083
Excerpt
Number:
3
Excerpt
Text:
Third,
the
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
will
allow
me
to
continue
to
be
able
to
provide
the
expertise
and
experience
that
I
have
gained
doing
ASTM
E­
1527
studies,
and
therefore
continue
to
enhance
my
value
to
my
firm.
Not
having
to
learn
a
whole
new
process
will
also
ensure
the
cost­
effectiveness
of
my
services.

Fourth,
those
who
perform
the
best
are
likely
to
get
the
most
work.
I
believe
that
the
Rule
will
be
successful
in
"
raising
the
bar"
on
the
quality
of
AAI
studies,
because
there
are
enough
safeguards
and
protections
within
the
proposed
rule
to
make
clients
far
more
concerned
about
peoples'
qualifications.

In
summary,
I
am
in
favor
of
the
AAI
rule
as
proposed.
I
urge
the
Agency
to
adopt
it
as
proposed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Ferguson,
Jim
Comment
Number:
0203
Excerpt
Number:
1
Excerpt
Text:
It
is
high
time
that
the
technical
soundness
of
Phase
I
Environmental
Site
Assessments
is
brought
up
to
an
acceptable
standard.
The
proposed
rule
for
All
Appropriate
Inquiries
(
AAI)
as
published
in
the
August
26th
Federal
Register
is
a
major
improvement
toward
that
end.
44
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
1
Excerpt
Text:
The
EPA's
proposed
rules
for
All
Appropriate
Inquiry
(
AAI)
transfer
criteria
for
this
due
diligence
activity
from
the
current
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
enthusiastically
support
this
transfer,
which
will
help
ensure
a
level
of
professionalism
and
quality
appropriate
for
this
important
type
of
environmental
investigation.
In
general
the
transition
is
coherent
and
reasonable
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
NW
EnviroSearch
Comment
Number:
0272
Excerpt
Number:
1
Excerpt
Text:
Thank
you
for
developing
criteria
and
I
standards
on
a
national
basis
for
the
completion
of
Phase
I
Environmental
Site
Assessments.
For
many
years
we
have
observed
the
disparity
between
the
quality
and
competency
[
of
the
reports
and
those
preparing
the
documents
within
the
environmental
industry.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Whitaker,
Robert
Comment
Number:
0297
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
urge
you
to
adopt
the
proposed
Rule.
It
will
serve
to
raise
the
bar
for
personnel
credentials
and
establish
a
performance
based
approach
to
environmental
services
that
promotes
professional
judgement
instead
of
a
one
size
fits
all
"
cookbook"
approach.
The
environmental
professional
services
industry
has
taken
an
unfortunate
turn
toward
becoming
a
cottage
industry
in
recent
years
and
it
is
in
the
public
interest
to
curtail
this
trend.
The
proposed
rule
will
build
on
the
success
of
the
process
established
in
the
current
ASTM
standard
and
provide
the
public
and
end
users
of
these
services
with
a
better
45
understanding
of
what
the
process
entails.
In
sumary
approving
this
rule
is
a
win­
win
proposal
for
the
profession
and
the
public.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Moors,
Scott
Comment
Number:
0298
Excerpt
Number:
2
Excerpt
Text:
Provides
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
that
does
not
currently
exist
with
the
ASTM
process.
While
not
perfect,
will
be
successful
in
raising
the
bar
on
the
quality
of
AAI
studies,
as
there
are
enough
safeguards
and
protections
within
the
proposed
rule.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Griebel,
Russell
Comment
Number:
0316
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.5
­
The
cost
impacts
of
the
proposed
rule
will
not
be
significant
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons,
some
of
which
are
expressed
here.
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
(
environmental
professionals)
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
46
EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Herin
Comment
Number:
0329
Excerpt
Number:
1
Excerpt
Text:
I
have
been
involved
with
as
many
as
300
environmental
due
diligence
projects
a
year.
As
part
of
this
I
have
seen
a
wide
range
of
due
diligence
products
provided
by
consultants.
In
particular,
I
have
been
concerned
with
the
"
bargain
basement"
Phase
I
ESA
(
claiming
to
meet
ASTM
E1527
standards)
which
probably
does
little
to
protect
the
user.
In
fact,
typical
reasons
these
products
are
so
inexpensive
include:
the
preparer
has
limited
experience;
the
preparer
takes
advantage
of
the
vagueness
of
the
ASTM
standard
by
"
cutting
corners"
to
keep
the
price
down;
and
the
user
is
an
uninformed
buyer
(
thus,
some
users
unwittingly
treat
due
diligence
services
as
a
commodity).

I
applaud
EPA's
efforts
for
helping
to
better
define
AAI
and,
thereby,
to
protect
the
user.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
2
Excerpt
Text:
My
firm
and
I
personally
provide
a
variety
of
environmental
services
for
our
clients;
these
services
cover
a
broad
range
of
project
types
with
various
degrees
of
complexity
for
clients
in
the
commercial,
retail,
municipal,
and
industrial
sectors.
I
know
better
than
most
that
even
the
apparently
simplest
brownfield
engagement
or
environmental
site
assessment
can
pose
latent
risks.
The
only
way
that
I've
found
to
deal
effectively
with
those
risks
is
by
relying
on
professionals
who
have
the
education,
training,
experience,
and
good
judgment
needed
to
know
what
to
do
when
the
situation
they
encounter
differs
from
one
described
in
some
guide
or
standard
or
that
is
outside
the
specific
range
of
past
experience.
For
that
reason,
I
fought
for
and
am
pleased
that
the
proposed
rule
establishes
realistic
near­
and
long­
term
definitions
of
"
environmental
professional."
Furthermore,
the
proposed
rule
allows
for
and
even
requires
the
application
of
the
professional
judgment
needed
to
help
consider
and
safeguard
the
public
trust.
Overall,
the
proposed
AAI
rule
"
raises
the
bar"
such
that
better
assessments
will
be
performed.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
47
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Osuch,
Debra
Comment
Number:
0365
Excerpt
Number:
1
Excerpt
Text:
I
support
the
EPA's
proposed
rules
for
All
Appropriate
Inquiry
(
AAI).
The
proposed
rules
transfer
criteria
for
this
due
diligence
activity
from
private
sector
consensus
standards
of
practice
to
federal
government
regulation.
I
believe
the
proposed
rules
will
help
ensure
a
higher
level
of
professionalism
and
quality
needed
for
this
type
of
environmental
property
assessments.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
6
Other
Sections:
NEW
­
3.12
­
Data
gaps
Excerpt
Text:
­
The
proposed
provisions
for
addressing
data
gaps.

­­
Lack
of
information
or
the
inability
to
obtain
information
on
a
site
is
a
common
problem.
This
is
often
caused
by
project
limitations
as
reflected
in
scope
and
budget.
However,
Phase
I
ESA
reports
have
traditionally
not
included
detail
about
data
gaps.
Therefore,
we
believe
this
proposed
requirement
will
result
in
better
reports
and
provide
report
recipients
with
greater
detail
upon
which
liability
minimizing
decisions
can
be
made.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
48
the
proposed
rule.

Commenter
Organization
Name:
Templeton,
Sharon
Comment
Number:
0407
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.5
­
The
cost
impacts
of
the
proposed
rule
will
not
be
significant
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
While
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
agrees
with
the
commenter
that
the
requirements
included
in
the
final
rule
will
only
slightly
increase
the
costs
of
performing
an
environmental
site
assessment
over
the
current
cost
of
performing
an
assessment
in
compliance
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
1
Excerpt
Text:
It
is
Branch
Bank
and
Trust's
general
position
of
support
for
the
proposed
AAI
Phase
I
Standards.
Since
its
inception
approximately
15
years
ago
the
Environmental
Phase
I
industry
has
been
without
a
regulatory
standard
for
these
reports,
and
this
has
lead
to
a
vast
array
of
report
types,
quality,
and
professionals
preparing
these
reports.
ASTM
has
been
a
good
guidance
document,
but
it
contains
many
vague
areas,
lacks
a
standard
in
other
areas,
and
is
only
voluntarily
adhered
to.
Not
all
users
of
the
Phase
I
possess
the
expertise
to
evaluate
if
their
Phase
I
report
meets
the
current
guideline,
or
if
the
consultant
the
hired
adequately
represented
their
interests.
Many
users
of
the
report
simply
mark
a
task
completed,
that
the
Phase
I
has
been
done.
But
to
what
standard,
and
is
that
standard
even
applicable
or
sufficient
to
cover
their
risks
and
preserve
the
various
CERCLA
Defenses?
How
can
a
CERCLA
Defense
be
sufficiently
developed
based
on
a
suspect
foundation?
The
simple
task
of
obtaining
a
Phase
I
under
the
current
guidelines,
especially
one
of
poor
quality,
may
not
prove
adequate
in
a
court
of
law,
and
certainly
may
not
sufficiently
evaluate
the
environmental
risks
at
the
real
property.

Over
the
past
ten
years
I've
personally
reviewed
thousands
of
Phase
I
reports
for
several
National
Financial
Lending
Institutions.
Not
all
Phase
I
reports
are
created
equal.
In
the
49
vacuum
of
a
Regulatory
Standard
quality
and
consistency
vary
greatly.
There
are
many
good
and
ethical
firms
conducting
high
quality
Phase
I
report
for
a
fair
price.
However
there
are
also
many
firms
who
don't
fit
that
definition
of
quality
and
ethics.
It
is
our
hope
that
through
the
AAI
Phase
I
process
the
industry
will
see
equalization
in
the
Phase
I
Report
Standard,
and
an
increase
in
overall
quality
of
this
product.
We
may
experience
an
increase
in
cost
or
timing,
but
this
would
be
reasonable
for
a
higher
quality
product.
For
a
long
time
the
Appraisal
Industry
has
been
regulated,
leaving
no
question
as
to
the
Standards
that
need
to
be
met.
The
Environmental
Phase
I
industry
faces
many
of
the
report
quality
and
consistency
problems
that
faced
the
appraisal
industry
prior
to
being
regulated.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
agrees
with
the
commenter
that
the
requirements
included
in
the
final
rule
will
only
slightly
increase
the
costs
of
performing
an
environmental
site
assessment
over
the
current
cost
of
performing
an
assessment
in
compliance
with
the
ASTM
E1527­
2000
standard.

EPA
agrees
that
the
performance
standards
will
increase
the
standard
by
which
Phase
I
reports
are
conducted.
However,
the
Agency
also
notes
that
there
may
still
be
varying
degrees
of
quality
in
Phase
I
reporting
and
encourages
prospective
landowners
to
carefully
select
who
they
trust
or
employ
to
conduct
all
appropriate
inquiries.
Also,
merely
conducting
all
appropriate
inquiries
will
not
satisfy
the
provisions
of
CERCLA
necessary
to
establish
a
defense
to
liability
relief.
Once
acquiring
a
property,
landowners
must
comply
with
the
continuing
obligations
established
in
the
statute
to
qualify
for
liability
protection
as
a
bona
fide
prospective
purchaser,
innocent
landowner
or
contiguous
property
owner.

Commenter
Organization
Name:
Langston,
Jeff
Comment
Number:
PM­
0127­
0006
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
And
I
just
want
to
mention
that
I'm
in
favor
of
the
proposed
rule,
and
for
the
reasons
­
the
favorable
reasons
that
have
been
mentioned
by
others.
I
don't
want
to
restate
those,
but
specifically,
I
do
want
to
comment
on
the
definition
of
the
environmental
professional
that
the
rule
would
require,
and
I
believe
that
that
definition
for
the
environmental
professional
would
result
in
increased
quality
of
the
environment
assessment
and
the
due
diligence
reports.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
50
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
including
revisions
to
the
proposed
definition
of
an
environmental
professional,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
51
1.1.1.4
The
Proposed
Rule
Balances
Concerns
of
the
Stakeholders
without
Compromising
the
Environment
Commenter
Organization
Name:
Cooper,
Ivan
A
Comment
Number:
0047
Excerpt
Number:
2
Excerpt
Text:
Second,
I
live
and
work
in
communities
that
have
environmentally
impacted
sites.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment,
and
promote
productive
use
of
properties
consistent
with
the
intent
of
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
Act).
In
other
words,
it
appears
that
the
proposed
Rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Thacker,
Barry
K
Comment
Number:
0071
Excerpt
Number:
1
Excerpt
Text:
I
have
reviewed
your
proposed
All
Appropriate
Inquiry
(
AAI)
rule
changes
and
I
support
them.
Cleaning
up
brownfields
so
they
can
be
returned
to
productive
use
is
an
important
national
effort.
I
think
your
proposed
changes
will
enable
brownfields
to
be
revitalized
while
taking
care
of
environmental
issues,
too.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Cheeks,
J.
Richard
Comment
Number:
0083
Excerpt
Number:
2
Excerpt
Text:
Second,
I
live
and
work
in
communities
that
have
environmentally
impacted
sites.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment,
and
promote
productive
use
of
properties
consistent
with
the
intent
of
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
Act).
In
other
words,
it
appears
that
the
proposed
Rule
balances
the
concerns
of
the
many
parties
52
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Simon,
Richard
M
Comment
Number:
0089
Excerpt
Number:
1
Excerpt
Text:
Your
proposed
All
Appropriate
Inquiry
(
AAI)
rule
seems
to
accomplish
what
America
needs:
Revitalizing
brownfields
while
taking
care
of
environmental
issues,
too.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.
53
Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
The
proposed
rule
is
also
vastly
superior
to
what
is
currently
performed
for
property
transactions
for
two
reasons:
1.
A
performance­
based
approach
instead
of
a
prescriptive
approach
is
employed,
which
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
property
type.
2.
It
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
protect
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
The
proposed
rule
appears
to
balance
the
concerns
of
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
5
Excerpt
Text:
­
Other
objections
falsely
claim
the
proposed
EP
definition,
if
promulgated,
will
lead
to
substantially
increased
costs,
business
failures,
and/
or
some
other
form
of
business
disruption,
e.
g.,
the
rule
will
put
small
firms
out
of
business
or
the
cost
of
complying
with
the
AAI
rule
will
be
too
great.
The
composition
of
the
AAI
rulemaking
committee
included
parties
that
represented
all
types
and
sizes
of
firms
over
a
large
geographic
area
that
are
involved
with
real
estate
transactions.
As
such,
great
efforts
were
made
to
accommodate
many
business­
related
concerns,
while
still
holding
paramount
the
need
to
protect
the
public
and
environment.

The
proposed
EP
definition
probably
received
the
most
discussion
of
any
one
issue
during
the
rulemaking
process.
The
proposed
EP
definition,
like
the
rest
of
the
proposed
54
rule,
contains
compromises.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
rule.
As
the
commenter
states
and
as
the
Agency
pointed
out
in
the
preamble
to
the
proposed
rule,
the
proposed
definition
of
environmental
professional
represented
a
balance
of
interests
held
by
EPA
and
the
other
members
of
the
Negotiated
Rulemaking
Committee.
EPA
notes
that
the
final
rule
includes
revisions
to
the
proposed
definition
of
environmental
professional
to
reflect
issues
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
changes.

Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
6
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
am
convinced
that
the
proposed
AAI
rule
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
broader
scope
of
the
environmental
inquiry
provides
users
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Smith,
Michael
Comment
Number:
0360
Excerpt
Number:
1
Excerpt
Text:
I
appreciate
all
the
hard
work
provided
by
the
committee
and
EPA
staff
in
developing
a
workable
All
Appropriate
Inquiry
(
AAI)
rule
that
will
allow
professional
judgment
while
requiring
the
professional
has
the
experience
to
make
the
judgment
call.
Cleaning
up
brownfields
is
vitally
important
to
the
United
States.
Doing
so
will
revitalize
decayed,
55
often
inner­
city
areas,
bringing
jobs
and
opportunities
there,
which
will
help
reduce
the
need
for
more
roads,
more
public
transit,
and
cars.
The
social
consequences
can
be
tremendous.
So
can
the
economic
impact
and
the
valuable
dampening
effect
brownfields
revitalization
can
have
on
urban
sprawl.
As
valuable
as
all
these
objectives
may
be,
however,
achieving
them
at
the
expense
of
the
environment
would
be
unacceptable.
Your
proposed
All
Appropriate
Inquiry
rule
seems
to
accomplish
what
America
needs:
Revitalizing
brownfields
while
taking
care
of
environmental
issues,
too.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property
with
sufficient
specificity
to
focus
on
the
relevent
environmental
conditions
that
may
exist
at
that
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.
56
Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.

Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
The
proposed
rule
also
is
vastly
superior
to
what
is
currently
performed
for
property
transactions
because
it:
(
1)
uses
a
performance­
based
approach
instead
of
a
prescriptive
approach,
and
(
2)
broadens
the
scope
of
the
environmental
inquiry
on
those
sites
where
it
is
beneficial
or
needed.
The
rule's
performance­
based
approach
recognizes
that
AAI
studies
must
be
designed
for
the
specific
circumstances
posed
by
a
property
and
its
past
uses.
This
approach
also
makes
the
rule
flexible
so
that
it
can
be
applied
to
any
type
of
property.
The
broader
scope
of
the
environmental
inquiry
provides
users
(
our
clients)
and
the
public
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.
Thus,
it
appears
that
the
proposed
rule
balances
the
concerns
of
the
many
parties
involved
in
property
transactions
without
compromising
the
environment
now
or
in
the
57
future.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.

EPA
notes
that
the
final
rule
includes
a
few
revisions
from
the
proposed
rule,
to
address
concerns
raised
by
other
public
commenters.
Please
see
section
III
of
the
preamble
to
the
final
rule
for
a
summary
of
these
revisions.

Please
see
response
to
comment
number
0070,
excerpt
2.
58
1.1.1.5
The
Cost
Impacts
of
the
Proposed
Rule
Will
Not
Be
Significant
Commenter
Organization
Name:
Vellone,
Daniel
A
Comment
Number:
0048
Excerpt
Number:
2
Excerpt
Text:
The
proposed
rule
builds
upon,
and
significantly
improves,
the
existing
environmental
inquiry
process
for
commercial
property
transactions.
I
believe
this
to
be
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Furthermore,
while
the
economic
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
may
be
slightly
more
expensive
than
the
current
process,
the
cost
impacts
should
be
negligible
in
comparison
to
the
resulting
benefits.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Worcester,
Alfred
P
Comment
Number:
0065
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons,
some
of
which
are
expressed
here.

The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
59
Commenter
Organization
Name:
Freitag,
George
A
Comment
Number:
0072
Excerpt
Number:
1
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons,
some
of
which
are
expressed
here.
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
('
environmental
professionals')
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard,
resulting
in
minimum
disruption
of
the
marketplace.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
2
Excerpt
Text:
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.
60
Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Griebel,
Russell
Comment
Number:
0316
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
I
support
the
proposed
rule
for
many
reasons,
some
of
which
are
expressed
here.
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
(
environmental
professionals)
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
minimum
disruptions
to
the
marketplace.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard,
resulting
in
minimum
disruptions
to
the
marketplace.
61
Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
2
Excerpt
Text:
Although
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
slightly
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
1
Excerpt
Text:
­
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard,
resulting
in
minimum
disruptions
to
the
marketplace.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
2
Excerpt
Text:
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
62
Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
of
AAI
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard,
resulting
in
minimum
disruption
to
the
marketplace.

Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
2
Excerpt
Text:
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
is
a
wise
and
important
approach
for
many
reasons.
Because
the
general
concept
will
be
familiar
to
the
service
providers
("
environmental
professionals")
and
the
users,
the
transition
to
the
new
rule
should
be
relatively
straightforward
and
result
in
a
minimum
of
disruption
to
the
marketplace.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard,
resulting
in
a
minimum
disruption
to
the
marketplace.
63
Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
2
Excerpt
Text:
Also,
while
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

Commenter
Organization
Name:
Templeton,
Sharon
Comment
Number:
0407
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
The
proposed
rule
builds
on
and
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
While
the
cost
of
conducting
an
inquiry
according
to
the
proposed
AAI
rule
will
likely
be
a
little
more
than
the
cost
associated
with
the
current
process,
the
cost
impacts
should
be
minor
and
the
resulting
benefits
will
be
significant.

Response:
The
Environmental
Protection
Agency
thanks
the
commenter
for
the
stated
support
for
the
proposed
rule.
EPA
agrees
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
64
1.1.2
General
Opposition
to
the
Proposed
Rule
Commenter
Organization
Name:
Hullinger,
Jeffrey
P
Comment
Number:
0057
Excerpt
Number:
1
Excerpt
Text:
I
don't
think
there
needs
to
be
such
a
rule.
In
the
past,
ASTM
Standard
1597
has
served
as
the
de
facto
standard
by
which
the
real
estate
and
environmental
communities
evaluated
whether
"
adequate
environmental'
due
diligence
has
been
exercised.
The
objective
has
been
to
establish
the
"
innocent
landowner
defense"
under
CERCLA.
And
although
ASFE
has
routinely
objected
to
the
ASTM
standard
(
it
wishes
to
elevate
the
level
of
effort,
qualifications
criteria,
and
consequently
price
for
a
typical
Phase
I
assessment),
I
believe
it
has
generally
worked
well
in
defining
overall
level
of
environmental
risk
posed
by
sites.

What
does
the
new
proposed
AAI
rule
really
do?
It
removes
the
standard
from
being
a
guide
to
proper
conduct
of
an
ESA
to
being
a
promulgated
regulation.
Based
upon
nearly
30
years
of
environmental
engineering,
my
experience
with
promulgated
regulations
is
that
they
are
most
commonly
used
by
the
agencies
as
bludgeons
to
punish
the
"
guilty,"
rather
than
as
constructive
tools
to
support
redevelopment.
And
brown
field
redevelopment
needs
to
focus
far
more
on
providing
carrots,
far
less
on
wielding
sticks.
I
fear
that
future
developments
on
brownfields
will
be
thrown
into
turmoil
if
and
when
EPA
decides
to
disqualify
a
property
from
future
protections
in
the
event
the
environmental
professional
has
deviated
in
minor,
meaningless
ways
from
this
regulation.

In
closing,
I
will
say
that
if
there
is
truly
a
need
for
a
promulgated
regulation
on
how
to
conduct
All
Appropriate
Inquiry,
the
proposed
standard
is
a
good
one.
But
there
really
is
no
such
need,
and
for
that
reason
I
oppose
its
promulgation.

Response:
CERCLA
§
§
101(
35)(
B)(
ii)
and
(
iii),
contain
congressional
direction
requiring
EPA
to
promulgate
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
and
also
establishes
the
criteria
EPA
must
include
in
the
final
rule.
The
ASTM
E1527
standard
was
established
by
Congress
as
an
interim
standard,
to
be
replaced
by
EPA's
duly
implemented
rule.
There
was
no
EPA
discretion
exercised
as
to
whether
or
not
to
provide
this
regulation,
rather
EPA
is
following
the
command
of
Congress.

The
intent
of
the
final
rule
is
to
establish
clear
standards
for
conducting
all
appropriate
inquiries
and
thus
allow
for
more
certainty
with
regard
to
what
a
prospective
property
owner
must
do,
prior
to
purchasing
a
property,
to
obtain
protection
from
liability
for
releases
and
threatened
releases
of
hazardous
substances
under
CERCLA.
The
final
rule
(
as
did
the
proposed
rule)
encourages
environmental
professionals
to
use
discretion
and
professional
judgment
in
determining
the
best
sources
of
information
and
the
best
manner
in
which
to
obtain
information,
given
the
objectives
of
the
regulation
and
the
specific
characteristics
of
the
property
being
assessed.
EPA
anticipates
that
this
flexible
approach
65
will
encourage
the
efficient
use
of
resources
while
protecting
human
health
and
the
environment.

With
regard
to
the
use
of
the
ASTM
E1527­
2000
standard,
prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
has
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process
to
address
the
inconsistencies.
EPA
has
determined
that
the
updated
standard
is
compliant
with
the
statute
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
comply
with
the
final
rule.

Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
10
Excerpt
Text:
The
proposed
rule
could
be
the
death
knell
for
the
Brownfields
Program.
It
is
overly
costly
and,
with
so
many
things
to
review,
at
the
end
of
the
day,
the
developer
could
still
be
denied
protection
from
liability
because
he
overlooked
some
small
detail.
This
regulation
does
little
to
encourage
Brownfield
redevelopment,
and
provides
little
comfort
for
people
who
want
to
renew
underused
property.

Response:
In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000.
The
Agency
encourages
the
commenter
to
refer
to
the
Economic
Impacts
Analysis
provided
in
the
docket
for
the
proposed
rule.

The
Agency
disagrees
with
the
commenter's
assertion
that
the
all
appropriate
inquiries
requirements
published
as
the
proposed
rule
would
discourage
redevelopment
of
brownfields
and
increase
developer
liability.
As
explained
in
the
preamble
to
the
proposed
rule,
the
standards
and
practices
proposed
were
not
significantly
different
from
the
generally
accepted
good
commercial
and
customary
standards
and
practices
in
use
prior
to
publication
of
the
final
rule.
In
fact,
EPA
believes
that
publication
of
the
final
rule
setting
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
provides
a
level
of
certainty
regarding
the
procedures
necessary
for
the
conduct
of
all
appropriate
inquiries
prior
to
the
purchase
of
commercial
properties,
including
brownfields,
and
therefore
may
have
the
effect
of
encouraging
the
redevelopment
of
contaminated
properties.
The
Agency
also
points
out
that
the
final
rule
setting
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
does
not
alter
the
liability
provisions
established
by
Congress
in
CERCLA
(
as
amended
by
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act).
Today's
final
rule
merely
66
establishes
standards
for
conducting
all
appropriate
inquiries,
which
is
only
one
of
the
criteria
established
in
CERCLA
for
obtaining
protection
from
liability.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
3
Excerpt
Text:
NREP's
core
argument
is
that
the
any
environmental
regulation
in
their
current
formats
that
isolates
other
environmental
professions
unfairly
empowers
single
two
professions.
This
unfair
empowerment
will
lead
to
environmental
injustice,
price
controls,
and
degraded
economic
revival.
These
issues
are
the
exact
things
that
the
United
States
Environmental
Protection
Agency
(
EPA)
and
various
State
environmental
agencies
are
chartered
to
prevent
and
protect.

Response:
The
final
rule,
as
did
the
proposed
rule,
allows
for
individuals
who
are
not
licensed
professional
engineers
or
licensed
professional
geologists
to
qualify
as
environmental
professionals.
The
final
rule
does
not
unfairly
empower
any
particular
categories
of
professionals.
Rather,
the
final
rule
sets
some
minimum
qualifications,
including
education
and
experience
requirements,
for
the
individual
who
is
responsible
for
supervising
the
all
appropriate
inquiries
activities
and
signing
the
written
report
of
findings.
EPA
believes
that
by
establishing
these
minimum
qualifications
for
the
individual
overseeing
the
all
appropriate
inquiries
activities
the
final
rule
establishes
a
necessary
standard
for
ensuring
that
high
quality
investigations
are
performed
and
that
prospective
landowners
are
aware
of
the
potential
environmental
conditions
of
a
property
prior
to
acquiring
a
property.
The
availability
of
a
quality
pre­
purchase
investigation
may
provide
a
prospective
landowner
with
the
information
necessary
to
comply
with
all
of
the
statutory
criteria
or
continuing
obligations
required
to
obtain
protection
from
CERCLA
liability.
Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
1
Excerpt
Text:
While
representatives
from
U.
S.
PIRG
played
an
integral
role
during
the
rulemaking
process,
we
believe
it
is
important
to
emphasize
that
U.
S.
PIRG
dissented
from
the
draft
document
and
withdrew
entirely
from
the
rulemaking
process.
We
feel
that
AAI
requirements
that
are
weaker
than
the
1997
American
Society
for
Testing
and
Materials
(
ASTM)
standards
are
unacceptable,
as
they
pose
a
greater
risk
to
human
health
and
environment
quality.

Furthermore,
U.
S.
PIRG
is
deeply
troubled
by
EPA's
unwillingness
to
publish
our
reasons
for
dissension
in
the
appendices
of
the
final
AAI
draft
language.
In
a
letter
dated
December
19,
2003
U.
S.
PIRG
outlined
its
reasons
for
dissent
and
withdrawal
from
the
rule
making
process,
yet
EPA
continued
to
portray
U.
S.
PIRG
as
a
supporter
of
the
final
draft
document.
In
a
later
correspondence,
dated
February,
17
2004,
addressed
to
67
Assistant
Administrator
Marianne
Horinko,
U.
S.
PIRG's
Executive
Director,
Gene
Karpinski
once
again
emphasized
that
our
organization
does
not
support
the
draft
regulations.

The
public
has
the
right
to
know
if
a
key
stakeholder
in
the
rulemaking
process
has
severe
and
justified
misgivings
concerning
the
finality
of
the
overall
group's
decision.
Tactics
designed
to
mislead
or
obfuscate
a
member's
final
opinion
on
the
draft
document,
serves
no
further
purpose
other
than
to
prevent
the
public's
right
to
unabridged
and
unfettered
access
to
all
sides
of
story.
Allowing
U.
S.
PIRG
to
publish
its
reasons
for
dissension
in
the
appendices
of
the
AAI
draft
document
would
have
met
the
degree
of
transparency
expected
in
EPA's
rulemaking
process.
We
sincerely
hope
that
EPA
strives
for
greater
openness
and
candor
in
future
instances
of
rulemaking.

Response:
EPA
acknowledges
that
US
PIRG
withdrew
from
the
negotiated
rulemaking
process
after
the
process
was
over.
US
PIRG
initially
negotiated
with
the
full
committee
in
good
faith
and
agreed
to
the
consensus
regulatory
language.
The
letters
from
US
PIRG
and
Mr.
Karpinski
were
sent
to
the
Agency
after
all
negotiations
were
finished
and
agreed
to
by
all
members
of
the
negotiated
rulemaking
committee,
including
US
PIRG.

EPA
notes
that
in
the
preamble
to
the
proposed
rule,
EPA
acknowledged
that
US
PIRG
had
changed
its
position
with
regard
to
the
agreed
upon
consensus.
In
addition,
EPA
noted
that
US
PIRG's
letters
to
EPA
were
available
in
the
rulemaking
docket.
EPA
did
nothing
to
"
mislead
or
obfuscate"
any
member
of
the
negotiated
rulemaking
committee's
position.
EPA
disclosed
US
PIRG's
change
in
position
and
provided
public
access
to
the
letters
that
US
PIRG
provided
to
EPA.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
22
Other
Sections:
NEW
­
6.1
­
EPA
should
adopt
ASTM
standard
rather
than
develop
separate
regulations
Excerpt
Text:
In
summary,
R&
W
believes
that
the
NRA/
FACA
process
has
created
redundant,
expensive,
and
unworkable
Proposed
Rules.
The
EIA
ignores
increased
requirements
of
the
Proposed
Rules
and
their
associated
costs.
Therefore,
R&
W
requests
that
the
EPA
withdraw
the
Proposed
Rules
and
continue
its
historical
cooperation
with
ASTM
to
tweak
the
E
1527­
00
Standard
Practice,
if
necessary,
to
comply
with
the
legislative
requirements.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Anonymous
68
Comment
Number:
0322
Excerpt
Number:
1
Excerpt
Text:
I
am
opposed
to
the
proposed
rule,
as
it
is
currently
written.
I
think
that
those
who
have
a
four
year
degree
with
five
years
of
relevent
experience
should
qualify
as
an
environmental
professional.
Also,
I
think
that
there
should
be
a
provision
for
those
currently
working
in
the
field
who
may
be
near
the
ten
year
experience
requirement
to
become
qualified.
The
proposed
rule
states
that
those
who
have
ten
years
of
experience
on
the
effective
date
of
the
rule
would
be
qualified.
This
does
not
address
those
who
have
several
years
of
experience
who
would
reach
the
ten
year
benchmark
in
the
future.

Response:
Based
upon
input
provided
in
public
comments,
EPA
amended
the
proposed
definition
of
an
environmental
professional
to
allow
for
individuals
with
a
bachelor's
degree
in
science
or
engineering
and
five
years
of
full
time
relevant
experience
to
qualify
as
an
environmental
professional.
In
addition,
the
definition
of
environmental
professional
in
the
final
rule
does
not
include
the
proposed
grandfather
clause,
but
allows
for
individuals
with
10
or
more
years
of
full
time
relevant
experience
to
qualify
as
an
environmental
professional,
even
if
they
do
not
have
a
college
degree.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
3
Excerpt
Text:
Because
we
present
a
perspective
that
was
not
adequately
represented
on
the
rulemaking
committee,
and
our
members
will
be
harmed
if
the
rule
goes
into
effect
as
proposed,
we
appreciate
the
opportunity
to
present
these
comments
and
thank
you
in
advance
for
considering
our
views
in
reaching
your
ultimate
decision
[
Footnote:
Some
of
our
members
will
be
prevented
from
carrying
out
development
projects,
and
will
incur
the
increased
costs
of
the
rule
and
exposure
to
liability
where
development
goes
forward.
Community
members,
who
are
members
of
Greenlining,
will
be
harmed
by
the
chilling
effect
on
development
and
concomitant
lack
of
services
and
continued
blight
in
their
neighborhoods].

And,
to
end
where
we
began,
the
point
of
the
new
rule
was
to
provide
certain
and
clear
liability
relief
to
prospective
developers
of
idle
or
abandoned
property.
The
rule
does
exactly
the
opposite,
exposing
would­
be
developers
to
virtually
open­
ended
liability.
It
simply
will
not
be
worth
the
risk
to
develop
brownfields
in
our
communities.
Developers
will
look
to
the
suburban
edge,
where
there
has
been
no
industrial
activity
and
there
is
no
risk
of
contamination,
exacerbating
sprawl
and
hobbling
investment
in
communities
that
need
it
most.
We
think
EPA
should
consider
the
environmental
impacts
of
increased
sprawl
that
will
be
caused
by
the
new
rule.

Response:
69
EPA
appreciates
your
concern
regarding
the
representation
of
differing
perspectives
on
the
Negotiated
Rulemaking
Committee.
In
1982,
the
Administrative
Conference
of
the
United
States
established
criteria
and
recommendations
for
using
the
negotiated
rulemaking
process
that
in
1990
was
established
in
the
Negotiated
Rulemaking
Act
(
Recommendation
82­
4,
1
CFR
§
305.82­
4
and
Recommendation
85­
5,
1
CFR
§
305.85­
5).
Among
other
things,
the
Administrative
Conference
recommended
that
reasonable
efforts
be
made
to
secure
a
balanced
group
of
interests
on
a
negotiated
rulemaking
committee.
To
this
end
EPA
went
to
substantial
lengths,
including
hiring
an
independent
convener
to
identify
interested
stakeholders
and
who
interviewed
over
60
individuals
representing
potential
stakeholders,
to
ensure
that
differing
stakeholders
were
afforded
an
opportunity
to
participate
meaningfully.
The
Negotiated
Rulemaking
Committee
for
the
all
appropriate
inquiries
rule
was
assembled
to
effectuate
the
diverse
perspectives
of
stakeholders,
or
those
parties
having
an
interest
in
or
who
potentially
would
be
affected
by
the
rulemaking.
After
EPA
went
to
considerable
lengths
to
identify
the
spectrum
of
stakeholders,
the
Agency
published
a
"
Notice
of
Intent
to
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
publication
of
this
notice,
EPA
held
a
public
meeting
to
discuss
its
intent
to
negotiate
the
proposed
rule
and
to
provide
interested
parties
with
another
opportunity
to
comment
on
the
Agency's
preliminary
list
of
committee
members.
Following
the
public
comment
period,
and
based
upon
input
received
in
the
public
comments,
EPA
added
additional
stakeholder
members
to
its
additional
list
of
potential
members
and
initiated
the
negotiated
rulemaking
process.

Once
the
Negotiated
Rulemaking
Committee
on
All
Appropriate
Inquiries
was
established,
the
Committee
conducted
all
of
its
business
publicly
and
affording
members
of
the
general
public
ample
opportunity
to
participate
in
that
regard.
EPA
published
notices
announcing
the
date
of
each
Committee
meeting
in
the
Federal
Register
and
accepted
written
public
comment
on
the
Committee's
negotiations
throughout
the
Committee's
negotiations.
In
addition,
the
Committee
reserved
time
during
every
day
of
the
Committee's
negotiations
for
members
of
the
general
public
to
address
the
Committee.
The
Agency
made
every
effort
to
be
inclusive
in
this
transparent
negotiated
rulemaking
process.
For
further
information
concerning
this
process
please
see
the
preamble
to
the
proposed
All
Appropriate
Inquiries
rule
published
in
the
Federal
Register
(
40
CFR
Part
312).

The
Agency
disagrees
with
the
commenter's
assertion
that
the
all
appropriate
inquiries
requirements
published
as
the
proposed
rule
would
discourage
redevelopment
of
brownfields
and
increase
developer
liability.
As
explained
in
the
preamble
to
the
proposed
rule,
the
standards
and
practices
proposed
were
not
significantly
different
from
the
generally
accepted
good
commercial
and
customary
standards
and
practices
in
use
prior
to
publication
on
the
final
rule.
In
fact,
EPA
believes
that
publication
of
the
final
rule
setting
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
provides
a
level
of
certainty
regarding
the
procedures
necessary
for
the
conduct
of
all
appropriate
inquiries
prior
to
the
purchase
of
commercial
properties,
including
brownfields,
and
therefore
may
have
the
effect
of
encouraging
the
redevelopment
of
70
contaminated
properties.
The
Agency
also
points
out
that
the
final
rule
setting
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
does
not
alter
the
liability
provisions
established
by
Congress
in
CERCLA
(
as
amended
by
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act).
Today's
final
rule
merely
establishes
standards
for
conducting
all
appropriate
inquiries,
which
is
only
one
criterion
established
in
CERCLA
for
obtaining
protection
from
liability.

Commenter
Organization
Name:
EAA
Comment
Number:
0366
Excerpt
Number:
1
Excerpt
Text:
After
a
diligent
review
of
the
proposed
AAI
standard
at
the
recent
Las
Vegas
annual
meeting,
it
is
the
general
and
very
strong
consensus
of
the
members
that
the
proposed
rule
lacks
sufficient
fairness
to
the
industry,
lack
of
complete
study
of
the
user
market,
and
consideration
of
legal
and
regulatory
issues
with
regard
to
other
industries.

Response:
It
is
EPA's
position
that
every
effort
was
taken
to
create
a
fair
rule
that
both
increases
certainty
for
the
purposes
of
spurring
redevelopment
and
is
protective
of
human
health
and
the
environment.
The
Agency
went
to
great
lengths
to
produce
a
rule
that
is
comprehensive
and
well
thought
out.
To
this
end,
a
negotiated
rulemaking
approach
was
undertaken
and
professionals
in
the
industries
affected
were
consulted
and
unanimously
supported
the
proposed
rule.
71
1.1.2.1
Opposition
to
the
Performance
Standard
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
1
Excerpt
Text:
Fundamental
difficulties
with
the
proposed
regulation
are
that
EPA
provides
not
"
bright
line
test"
for
how
much
inquiry
is
appropriate.
As
a
result
there
is
no
reasonable
assurance
that
the
inquirer
will
get
any
liability
relief
even
though
he
has
done
what
to
a
reasonable
person
would
appear
to
be
an
exhaustive
search.
Also,
the
regulation
relies
on
vague
terms:
after
conducting
"
appropriate
inquiries"
a
person
seeking
to
be
treated
as
a
"
bona
fide
prospective
purchaser"
must
"
exercise
[]
appropriate
care 
by
taking
reasonable
steps"
to
prevent
releases
of
and
limit
exposures
to
hazardous
substances.
By
simply
parroting
the
obscure
language
of
the
Brownfields
Amendment,
EPA
does
nothing
to
clarify
for
the
public
how,
with
confidence,
it
can
comply
and
get
the
benefits
Congress
allows.

Response:
The
final
does
provide
a
finite
list
of
activities
that
must
be
conducted
to
meet
the
requirements
for
"
all
appropriate
inquiries,"
or
the
pre­
purchase
due
diligence
that
a
prospective
landowner
must
undertake
to
ensure
compliance
with
the
statutory
criteria
for
all
appropriate
inquiries.
However,
the
final
rule
is
structured
around
a
set
of
objectives
and
performances
standards
and
does
not
provide
a
"
bright
line
test"
for
how
extensively
the
inquiries
must
be
conducted
because
the
extent
of
investigation
that
needs
to
be
conducted
at
any
given
property
may
vary
depending
upon
the
past
uses
and
ownerships
of
the
property.

By
establishing
clear
objectives
and
setting
parameters
to
the
investigation
through
a
set
of
performance
factors
that
include
gathering
information
that
is
publicly
available
(
or
otherwise
obtainable),
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
practicably
be
reviewed,
the
approach
taken
in
the
final
rule
provides
reasonable
goals
and
endpoints
to
the
information
collection
requirements.
The
proposed
objectives
provide
a
discrete
list
of
the
types
of
information
that
must
be
collected
as
part
of
the
all
appropriate
inquiries
investigation.
In
addition,
the
performance
factors
set
boundaries
around
the
efforts
that
must
be
taken
and
the
cost
burdens
that
must
be
incurred
to
obtain
the
required
information.
The
fact
that
the
rule
is
framed
within
a
primary
objective,
to
"
identify
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,"
actually
reduces
the
open­
ended
nature
of
the
investigation
and
establishes
an
overall
goal
for
the
inquiries.

The
commenter
may
have
misunderstood
the
statutory
requirements
that
must
be
met
to
obtain
a
defense
to
CERCLA
liability
and
may
be
incorrectly
assuming
that
the
completion
of
the
all
appropriate
inquiries
investigation
is
all
that
is
required
to
obtain
liability
protection
under
CERCLA.
The
conduct
of
all
appropriate
inquiries
is
only
one
requirement
for
obtaining
relief
from
CERCLA
liability.
Prospective
landowners
must
72
conduct
all
appropriate
inquiries
prior
to
acquiring
a
property
to
qualify
for
a
defense
to
CERCLA
liability
as
an
innocent
landowner,
bona
fide
prospective
purchaser
or
contiguous
landowner.
However,
once
a
property
is
acquired,
the
property
owner
must
comply
with
all
of
the
other
statutory
criteria
necessary
to
qualify
for
the
liability
protections.
In
particular,
landowners
must
undertake
"
reasonable
steps"
to
"
stop
any
continuing
releases."
Therefore,
the
final
rule's
objective
of
identifying
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
a
property
to
links
appropriately
with
the
statutory
criteria
requiring
the
landowner
to
address
such
releases
to
qualify
for
the
liability
protections.

EPA
notes
that
the
regulations
established
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
rule
does
not
address
the
requirements
of
CERCLA
Section
101(
35)(
B)(
i)(
II)
for
what
constitutes
"
reasonable
steps."

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
2
Excerpt
Text:
The
E
1527­
0
process
states
specific
performance
requirements
while
allowing
the
Environmental
Professional
(
EP)
sufficient
leeway
to
use
professional
judgement.
The
Proposed
Rules
set
vague
performance
standards
without
providing
sufficient
guidance
for
the
EP.
This
will
create
chaos
in
the
Phase
I
ESA/
AAI
marketplace.

Response:
The
final
rule
is
very
similar
to
the
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
Process.
The
final
rule
establishes
clear
objectives
and
sets
parameters
to
the
investigation
through
a
set
of
performance
factors
that
include
gathering
information
that
is
publicly
available
(
or
otherwise
obtainable),
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
practicably
be
reviewed,
the
approach
taken
in
the
final
rule
provides
reasonable
goals
and
endpoints
to
the
information
collection
requirements.
The
proposed
objectives
provide
a
discrete
list
of
the
types
of
information
that
must
be
collected
as
part
of
the
all
appropriate
inquiries
investigation.
In
addition,
the
performance
factors
set
boundaries
around
the
efforts
that
must
be
taken
and
the
cost
burdens
that
must
be
incurred
to
obtain
the
required
information.
The
final
rule
is
framed
within
a
primary
objective,
to
"
identify
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances."
Given
that
the
final
rule
is
very
similar
to
the
ASTM
E1527­
2000
standard,
EPA
disagrees
with
the
commenter's
assertion
that
the
rule
will
create
chaos
in
the
market
place.

With
regard
to
the
use
of
the
ASTM
E1527­
2000
standard,
prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
has
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process
to
address
the
inconsistencies.
EPA
has
determined
that
the
updated
standard
is
compliant
with
the
73
statute
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
comply
with
the
final
rule.

Commenter
Organization
Name:
Congressmen
Dingell,
Boxer,
et
al
Comment
Number:
0332
Excerpt
Number:
7
Excerpt
Text:
We
are
also
concerned
about
the
vague
performance
standards
relied
on
in
the
rule
that
are
no
substitute
for
the
specific
criteria
and
benchmarks
that
were
crafted
in
the
statute
to
ensure
clear
and
consistent
requirements.
Significant
changes
must
be
made
for
this
rule
to
meet
the
minimum
standards
required
in
the
Brownfields
law.

Response:
Please
see
response
to
comment
number
0095,
excerpt
1.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
4
Excerpt
Text:
EPA
ASSURANCE
OF
APPROPRIATE
AAI
1)
The
proposed
AAI
regulations
require
a
report
describing
AAI
conducted
and
requires
the
EP
to
sign
the
report.
If
EPA
is
going
to
require
a
tougher
standard
to
demonstrate
that
AAI
have
been
conducted,
then
FAA,
as
the
purchaser
of
many
properties,
would
like
a
greater
degree
of
EPA
concurrence
that
the
investigations
carried
out
were
appropriate.

Response:
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
requires
EPA
to
promulgate
federal
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries.
The
statute
requires
that
the
rule
include
an
inquiry
conducted
by
an
environmental
professional.
EPA
does
not
believe
that
requiring
an
environmental
professional
to
sign
the
written
report
of
the
inquiries
represents
"
a
tougher
standard,"
than
the
current
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process.
Determining
if
a
party
has
adequately
carried
out
the
inquiries
is
for
a
court
to
decide
and
is
outside
of
EPA's
purview.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
9
74
Excerpt
Text:
The
basic
approach
to
current
Phase
I
site
assessment
(
ASTM
El
527)
is
that
of
a
procedural
checklist.
A
specified
list
of
records
must
be
reviewed,
and
specified
inspections
and
interviews
conducted.
Once
these
procedures
are
completed,
the
prospective
purchaser
is
protected
from
liability
for
hidden
pollution
not
discovered
at
the
time
of
purchase
but
that
may
later
come
to
light.
ASTM
El
527
requires
review
of
a
long
list
of
sources,
but
there
is
also
an
end
to
the
inquiry­
you
know
when
you
are
done
and
there
is
reasonable
protection
from
courtroom
second
guessing
so
long
as
the
checklist
is
followed
and
the
results
properly
memorialized.

The
proposed
new
rule,
on
the
other
hand,
adopts
open­
ended,
catch­
all
liability
provisions.
Under
the
new
rule
it
will
be
difficult
to
know
how
much
inquiry
is
adequate
and
it
may
be
impossible
to
achieve
liability
protection
for
contamination
that
is
not
discovered
during
the
pre­
purchase
Phase
I,
no
matter
how
diligently
the
Phase
I
was
conducted.

Response:
The
proposed
rule
in
no
way
alters
the
liability
scheme
established
by
Congress
in
the
CERCLA
legislation.
EPA
recognizes
that
complying
with
the
final
rule
alone
brings
no
liability
relief.
Only
when
actors
undertake
all
appropriate
inquiries
before
purchasing
property
AND
comply
with
all
of
the
additional
continuing
obligations
Congress
has
set
out
will
they
be
eligible
for
liability
relief.
It
is
with
this
knowledge
that
EPA
has
attempted
to
specify
steps
that,
if
followed,
constitute
all
appropriate
inquiries.
However,
it
should
be
noted
that
compliance
with
the
final
rule
does
not
provide
liability
relief
unless
the
continuing
obligations
established
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
also
are
met.
The
Agency
believes
this
view
accurately
reflects
the
intent
of
Congress.
The
commenter's
assertion
that
"
under
the
new
rule
it
will
be
difficult
to
know
how
much
inquiry
is
adequate
and
it
may
be
impossible
to
achieve
liability
protection "
is
inaccurate.
Congress
established
within
the
legislation
what
constitutes
protection
from
CERCLA
liability.
All
appropriate
inquiries
is
merely
one
criteria
established
by
Congress
for
obtaining
certain
protections
from
liability.

See
also
the
response
to
comment
number
0095,
excerpt
1.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
5
Excerpt
Text:
­
A.
EPA
Improperly
Rejected
the
Clear
and
Definite
Industry
Standard
Checklist
Approach
of
ASTM
E1527
and
Adopted
a
New
"
Performance
Based"
Approach
with
Vague
and
Broadly
Worded
Objectives
and
Performance
Factors
Inconsistent
with
Congressional
Intent
The
current
industry
standard
for
conducting
AAI
is
ASTM
E1527.
ASTM
E1527'
s
basic
75
approach
to
site
assessment
is
that
of
a
procedural
checklist.
A
specified
list
of
records
must
be
reviewed,
and
specified
inspections
and
interviews
conducted.
Once
these
procedures
are
completed,
the
prospective
purchaser
is
protected
from
liability
for
hidden
pollution
not
discovered
at
the
time
of
purchase
but
that
may
later
come
to
light.
ASTM
E1527
requires
review
of
a
long
list
of
sources,
but
there
is
also
an
end
to
the
inquiry­
you
know
when
you
are
done.
Although
some
judgment
calls
on
the
part
of
the
environmental
professional
conducting
the
inquiry
are
inherent
in
the
process,
there
is
reasonable
protection
from
courtroom
second
guessing
so
long
as
the
checklist
is
followed
and
the
results
properly
memorialized.

The
committee
has
abandoned
the
checklist
approach
in
favor
of
what
it
has
described
in
public
meetings
as
the
"
performance
based"
approach
of
the
proposed
rule.
Although
the
words
"
performance
based"
have
a
ring
of
reasonableness
about
them,
they
cloak
an
attempt
to
saddle
developers
who
wish
to
put
brownfields
back
into
productive
use
with
unreasonable
liability
exposure.
The
performance
based
approach
is
embodied
in
the
"
objectives,"
"
performance
factors,"
and
"
data
gaps,"
sections
of
the
proposed
rule.
These
sections
are
so
broadly
worded
that
they
may
reasonably
be
construed
as
requiring
prospective
purchasers
to
prove
a
negative:
that
there
is
no
undisclosed
contamination
present
on
the
subject
site.
At
best,
they
are
vague
and
leave
the
courtroom
door
wide
open
to
second
guessing
should
contamination
not
discovered
by
the
AAI
subsequently
come
to
light
p[
Footnote:
Negotiated
rulemaking
committee
members
were
aware
that
the
"
checklist
approach"
represents
industry
standard
and
that
they
were
abandoning
it
in
favor
of
a
new
"
performance
based
approach"
that
would
require
proving
a
negative,
i.
e,
that
there
are
no
indications
of
contamination,
or,
as
one
committee
member
understood
it,
"
leaving
no
rock
unturned"
until
it
is
proved
that
"
the
property
is
indeed
clean."
In
a
series
of
memos
documenting
the
committee's
work,
one
participant
noted
the
following:
"
Existing
methodologies,
such
as
ASTM
Phase
I,
provide
reliable
checklists
for
collecting
information
on
property
ownership
and
use,
the
presence
and
release
of
hazardous
substances,
and
past
efforts
to
address
such
releases.
But
they
aren't
as
helpful
if
information
sources
are
incomplete
or
the
goal
is
to
show
that
the
property
is
indeed
'
clean'."
Lenny
Siegel,
Center
for
Public
Environmental
Oversight,
All
Appropriate
Inquiry
Committee
Update,
July
1,
2003,
available
at
http://
www.
cpeo.
org/
lists/
brownfields
("
Committee
Update").
"[
T]
hose
who
emphasize
the
need
to
leave
no
rock
unturned
in
the
search
for
contamination
are
glad
that
the
environmental
professional
conducting
the
inquiry
will
be
required
to
keep
looking
until
those
answers
are
found."
Committee
Update,
September
12,
2003.].

Proposed
§
312.20(
d)
"
Objectives"
requires
that
purchasers
"
seek
to
identify"
a
list
of
conditions
indicative
of
contamination.
Standards
and
Practices
for
All
Appropriate
Inquiries,
69
Fed.
Reg.
52542,
52577
(
proposed
August
26,
2004)
(
to
be
codified
at
40
C.
F.
R.
pt
312).
Proposed
§
312.20(
e)
"
Performance
factors"
in
turn
requires
that
purchasers
must
seek
to
gather
information
that
will
meet
the
objectives
set
out
in
section
d,
and
must
"
evaluate
the
thoroughness
and
reliability
of
the
information"
gathered.
If
there
is
"
a
lack
of
or
inability
to
obtain
information
required,"
65
Fed.
Reg.
at
52576,
to
meet
the
objectives
then
the
environmental
professional
must
"
comment
upon
the
significance
of
such
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
76
of
releases
or
threatened
releases
of
hazardous
substances."
Proposed
§
312.20
(
f),
69
Fed.
Reg.
at
52578.
Further,
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."
Proposed
§
312.21,
65
Fed.
Reg.
at
52578.

Taken
together,
the
practical
result
of
these
provisions
is
to
give
the
environmental
professional
a
Hobson's
choice:
he
must
either
say
that
he
has
enough
information
to
conclude
that
all
conditions
indicative
of
contamination
have
been
identified
(
i.
e.,
in
the
environmental
professional's
opinion
a
negative
has
been
proven:
there
is
no
undiscovered
indication
of
contamination)
or
must
state
that
there
are
"
data
gaps"
that
prevent
reaching
a
definitive
conclusion.
The
committee
intentionally
left
ambiguous
the
status
of
"
data
gap
qualified"
reports
in
order
to
reach
final
agreement
[
Footnote:
Mr.
Siegel's
running
commentary
reveals
that
"
This
issue
emerged
as
a
potential
dealbreaker
when
one
environmental
group
participant
indicated
plans
to
dissent
unless
the
rule
included
language
disqualifying
a
party
from
liability
relief
if
the
environmental
professional
found
that
he/
she
had
insufficient
data
to
determine
whether
an
environmental
release
might
have
occurred.
At
the
last
minute,
this
difference
was
overcome
by
the
insertion,
into
the
draft
rule,
of
language
saying
(
this
might
not
be
the
final
wording),
'
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
report.'"
Committee
Update,
November
14,
2003.
The
language
cited
by
Mr.
Siegel
was
incorporated
verbatim
into
the
proposed
rule.
However,
it
leaves
unanswered
the
question
of
whether
data
gap
qualified
reports
do
or
don't
provide
liability
protection.].
EPA
concluded
that
"
data
gap
qualified"
reports
should
provide
definitive
liability
protection
but
bowed
to
the
wishes
of
committee
members
and
agreed
to
vague
consensus
language
in
order
to
reach
unanimous
agreement
[
Footnote:
"
EPA
and
several
of
the
other
committee
members
argued
that
the
Inquiry
still
may
be
complete,
even
if
there
are
major
data
gaps."
Committee
Update,
November
14,
2003.].
It
is
one
thing
to
strike
"
a
balance
of
certainty
for
prospective
purchasers,
developers
and
others
while
ensuring
protection
of
public
health"
by
making
balanced
policy
determinations
and
embodying
them
in
clearly
worded
regulations.
S.
Rep.
102­
2
at
4.
It
is
quite
another
to
adopt
intentionally
vague
regulations
that
leave
policy
disputes
unresolved
and
leave
it
to
the
parties
to
fight
it
out
in
court
another
day.

In
the
real
world,
although
pre­
purchase
site
assessments
are
an
invaluable
tool,
no
matter
how
thorough
a
phase
one
(
or
even
phase
two,
for
that
matter)
it
is
possible
that
sources
of
contamination
on
the
subject
property
will
remain
undiscovered.
Even
if
the
site
investigation
identifies
contamination,
it
may
not
identify
all
of
it.
It
is
common
to
discover
additional
materials
not
disclosed
in
the
best
site
investigation
reports
once
excavation
for
a
construction
project
begins.
Environmental
professionals
know
this
and
are
unlikely
to
go
out
on
a
liability
limb
by
stating
that
their
report
has
disclosed
all
indications
of
contamination.
The
result
will
be
highly
"
data
gap
qualified"
reports
that
make
liability
protection
uncertain
at
best.
77
This
is
not
what
Congress
intended.
There
is
no
indication
that
Congress
intended
a
shift
to
a
"
performance
based"
approach.
There
is
no
indication
that
Congress
intended
to
hold
developers
liable
for
finding
all
contamination
that
might
be
present.
Indeed,
such
a
requirement
would
defeat
the
entire
purpose
of
the
legislation.
The
negotiated
rulemaking
committee
created
these
previously
unknown
catch­
all
liability
provisions
from
whole
cloth.
We
suggest
that
the
"
performance
based"
approach
is
unworkable
in
the
context
of
Congressional
directive
to
"
clarify
the
obligations
of
any
party
who
seeks
to
use
the
[
innocent
purchaser]
defense,"
S.
Rep.
102­
2
at
13,
and
to
"
provide
protection
to
persons
who
wish
to
purchase
contaminated
property."
Id.
at
11.

Response:
The
language
used
by
Congress
in
describing
the
action
to
be
taken
under
this
rule
is
"
all
appropriate
inquiries."
Because
each
property
for
which
AAI
is
undertaken
is
unique,
"
appropriate"
inquiries
for
one
property
may
not
be
"
appropriate"
for
another.
This
uniqueness
requires
differing
approaches.
Therefore,
the
final
rule
has
been
promulgated
in
a
manner
that
allows
the
flexibility
needed
to
engage
in
all
appropriate
inquiries
for
any
property.
The
purpose
behind
establishing
a
performance
standard
for
the
conduct
of
all
appropriate
inquiries
is
to
allow
for
a
comprehensive
assessment
of
available
information
about
the
potential
environmental
conditions
at
a
property,
while
avoiding
duplicative
requirements.
Sections
312.20(
d)
and
(
e)
of
the
final
rule
set
forth
objectives
for
the
all
appropriate
inquiries
and
performance
factors
for
obtaining
the
information
established
within
the
objectives.
As
explained
in
the
preamble
to
the
proposed
rule,
the
advantage
of
a
performance­
based
approach
over
a
checklist
approach
to
conducting
the
inquiries
is
that
multiple
sources
of
information
need
not
be
consulted
for
the
same
information.

The
final
rule
(
as
did
the
proposed
rule)
encourages
environmental
professionals
to
use
discretion
and
professional
judgment
in
determining
the
best
sources
of
information
and
the
best
manner
in
which
to
obtain
information,
given
the
objectives
of
the
regulations
and
the
specific
characteristics
of
the
property
being
assessed.
EPA
anticipates
that
this
flexible
approach
will
prevent
a
waste
of
resources
in
the
case
of
properties
that
may
not
require
as
rigorous
of
an
investigation
due
to
available
information
about
a
property
or
particular
knowledge
about
a
property
that
may
not
be
available
in
the
case
of
other
properties,
while
at
the
same
time
maintaining
adequate
standards
to
ensure
environmental
protection
in
the
case
of
all
properties.
Inherent
in
this
approach
is
less
specificity
than
otherwise
could
be
developed.
However,
the
types
of
information
that
must
be
collected
as
part
of
the
all
appropriate
inquiries
and
as
listed
in
§
312.20(
d)
of
the
final
rule,
are
essentially
the
same
types
of
information
included
in
the
"
checklist"
referred
to
by
the
commenter.
EPA
believes
that
good
faith
compliance
with
the
standards
set
forth
in
final
rule
will
provide
the
same
level
of
knowledge
and
information
about
a
property
as
was
previously
available
under
the
interim
standard
established
by
Congress.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
78
Excerpt
Number:
2
Excerpt
Text:
Fundamental
difficulties
with
the
Proposed
Rule's
AAI
content
and
performance
requirements
exist.
As
outlined
in
more
detail
below,
the
content
requirements
are
extremely
burdensome
and
costly
and
the
performance
requirements
are
in
some
cases
infeasible.
Furthermore,
even
undertaken
in
good
faith
to
the
best
of
one's
ability,
fulfilling
the
AAI
standards
does
not
guarantee
the
supposed
benefits
of
the
rule.
In
short,
there
is
no
conclusive
test
to
determine
how
much
inquiry
and
post
acquisition
action
is
appropriate.
Consequently,
there
is
no
reasonable
assurance
that
the
inquirer/
purchaser
will
get
any
liability
relief
even
after
exercising
what
as
drafted
will
be
an
exhaustive
and
costly
analysis.
Because
the
standards
and
practices
for
AAIs
under
the
Proposed
Rule
will
increase
the
cost
and
burden
of
Phase
I
ESAs,
without
providing
an
equitable
guarantee
that
the
purchaser
will
in
fact
get
liability
protection,
the
Proposed
Rule
actually
discourages
development
of
brownfield
properties.

Response:
Please
see
responses
to
comment
numbers
0344
(
excerpt
9)
and
0354
(
excerpt
3).

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
10
Excerpt
Text:
What
are
reasonable
efforts?
What
about
"
No
Further
Action"
determinations?
As
discussed
below,
the
Proposed
Rule's
performance
requirements
also
leave
a
potential
purchaser
with
little
to
no
clarification
on
how
and
when
the
liability
protection
proffered
by
the
new
standards
will
actually
be
afforded.

Response:
Please
see
response
to
comment
number
0354
(
excerpt
5).

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
11
Excerpt
Text:
As
stated
above,
even
if
the
content
requirements
under
the
Proposed
Rule's
AAI
standards
are
met,
purchasers
have
continuing
obligations,
which
can
lead
to
the
loss
of
liability
protection.
As
drafted,
a
lack
of
information
or
an
inability
to
obtain
information,
including
the
information
outlined
above,
for
identified
and
unidentified
data
gaps
under
the
Proposed
Rule,
will
threaten
a
potential
owner's
ability
to
claim
liability
protection
under
the
new
standard.
CERCLA
mandates
post­
acquisition
obligations,
including
requirements
to
take
reasonable
steps
to
stop
or
prevent
releases
and
threatened
releases.
Consequently,
if
a
potential
owner
does
not
identify
a
release
or
threatened
release,
even
though
they
fulfilled
the
requirements
of
AAIs,
they
will
not
be
entitled
to
liability
protection
should
that
release
or
threatened
release
materialize
after
acquisition.
79
Similarly,
if
an
existing
institutional
control
was
not
identified
during
AAIs,
a
landowner
would
not
be
exempt
from
complying
with
the
control
after
acquisition
and
failure
to
do
so
would
bar
a
claim
for
liability
protection.
In
addition,
because
of
the
requirement
to
identify
controls
on
and
within
one­
half
mile
of
the
subject
property,
even
if
a
control
is
identified,
under
the
continuing
performance
requirements,
what
recourse
does
the
subject
property
owner
have
in
assuring
that
controls
on
other1
properties
are
in
conformance?
If
an
owner
identifies
a
release
or
a
potential
release
on
an
adjacent
property,
do
they
have
the
continuing
obligation
to
stop
or
prevent
it
from
coming
on
to
the
subject
property?
It
would
appear
then,
that
despite
best
efforts
and
compliance
with,
as
drafted,
extremely
burdensome
and
costly
AAIs
standards,
the
primary
goal
of
this
effort
­
liability
protection
under
CERCLA
­
would
still
not
be
realized
in
many
cases.
Thus,
the
protection
envisioned
by
the
Act
and
the
incentive
for
redevelopment
of
unused
and
abandoned
property
will
not
be
realized.

Response:
The
final
rule
does
not
include
a
requirement
to
search
for
institutional
controls
within
½
mile
from
the
subject
property.
However,
the
requirement
to
search
for
institutional
controls
affecting
the
property
in
question
is
retained.
Further,
the
final
rule
establishes
standards
for
one
requirement
established
under
CERCLA
for
obtaining
protection
from
CERCLA
liability.
The
need
for
a
property
owner
to
comply
with
the
continuing
obligations
set
forth
in
CERCAL
do
not
result
from
a
discretionary
decision
by
the
EPA,
rather
they
exist
because
of
Congressional
mandate.
The
continuing
obligations
do
not
include
stopping
releases
from
adjoining
or
nearby
properties.
However,
if
such
releases
are
discovered,
it
may
be
prudent
to
report
them.

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
1
Excerpt
Text:
Our
conclusion,
and
the
conclusion
of
all
we
have
consulted,
is
that
the
proposed
rule
takes
a
big
step
backwards
in
providing
clarity
and
certainty
for
the
brownfield
redeveloper.
The
obligations
of
prospective
purchasers
seeking
CERCLA
liability
protection
are
significantly
less
clear
under
the
proposed
rule.
The
proposed
rule
appears
to
make
it
much
more
difficult
to
determine
what
must
be
done
in
the
conduct
of
a
prepurchaser
inquiry
in
order
to
achieve
liability
protection.
We
also
note
that
the
cost
of
implementing
the
new
rule
will
be
significantly
greater
than
the
$
47
estimate
provided
by
the
Economic
Impacts
Analysis
(
EIA).

CCLR
has
carefully
reviewed
the
familiar
ASTM
E1527­
00
standard
with
an
eye
to
the
requirements
of
the
Brownfields
Amendments.
It
is
our
position
that
ASTM
E1527­
00
actually
meets
the
criteria
required
by
the
Brownfield
Amendments.
While
adopting
the
proposed
"
performance
based"
approach
to
site
assessment
would
likely
result
in
a
reduction
of
brownfield
conversion,
we
urge
EPA
to
adopt
the
well
understood
and
time
proven
checklist
approach
of
ASTM
E1527­
00
as
the
standard
for
all
appropriate
inquiry,
an
approach
that
will
meet
the
Congressional
goal
of
simplification,
clarity,
and
increased
80
brownfield
reuse.

Response:
Please
see
Responses
to
comment
numbers
0320
(
excerpt
2)
and
0354
(
excerpt
5).

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
2
Excerpt
Text:
The
proposed
rule
abandons
the
generally
accepted
practice
of
ASTM
E1527­
00,
and
instead
adopts
an
open­
ended
and
expanded
scope
of
inquiry
that
diminishes
the
certainty
of
liability
protection.

ASTM
E1527'
s
basic
approach
to
site
assessment
is
that
of
a
procedural
checklist.
A
specified
list
of
records
must
be
reviewed,
and
specified
inspections
and
interviews
conducted.
Once
these
procedures
are
completed,
the
prospective
purchaser
is
protected
from
liability
for
hidden
pollution
not
discovered
at
the
time
of
purchase
but
that
may
later
come
to
light.
ASTM
E1527
requires
review
of
a
long
list
of
sources,
but
there
is
also
a
definite
and
readily
identifiable
end
to
the
inquiry.
Although
some
judgment
calls
on
the
part
of
the
environmental
professional
conducting
the
inquiry
are
inherent
in
the
process,
there
is
reasonable
protection
from
courtroom
second
guessing
so
long
as
the
checklist
is
followed
and
the
results
properly
memorialized.

In
this
proposed
rule,
the
checklist
approach
has
been
eliminated
and
shifted
to
a
"
performance
based"
approach.
The
performance
based
approach
is
instituted
by
the
"
objectives,"
"
performance
factors,"
and
"
data
gaps,"
sections
of
the
proposed
rule.
These
sections
may
be
construed
to
require
prospective
purchasers
to
prove
a
negative:
that
there
is
no
undisclosed
contamination
present
on
the
subject
site.
It
is
our
opinion
that
these
requirements
introduce
a
high
level
of
ambiguity,
and
with
this
lack
of
clarity,
leave
brownfield
redevelopers
exposed
to
CERCLA
litigation.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
3
Excerpt
Text:
The
status
of
"
data
gap
qualified"
reports
is
ambiguous.
Liability
protection
is
not
clearly
articulated
here.

No
matter
how
thorough
a
phase
I
(
or
even
phase
II,
for
that
matter)
it
is
possible
that
sources
of
contamination
on
the
subject
property
will
remain
undiscovered.
Even
if
the
site
investigation
identifies
contamination,
it
may
not
identify
all
of
it.
Additional
81
contamination
not
disclosed
in
the
best
site
investigation
reports
are
often
unearthed
once
excavation
for
a
construction
project
begins.
Environmental
professionals
know
this
and
are
unlikely
to
go
out
on
a
liability
limb
by
stating
that
their
report
has
disclosed
all
indications
of
contamination.
The
result
will
be
highly
"
data
gap
qualified"
reports.
This
would
make
liability
protection
uncertain
at
best,
even
where
sampling
and
analysis
is
conducted.

This
all
represents
a
sweeping
increase
in
the
scope
of
work
required
by
a
phase
I
site
investigation
and
without
language
the
provides
a
guarantee,
a
commensurate
decrease
in
the
potential
for
liability
protection.
This
is
not
the
"
balance
of
certainty
for
prospective
purchasers,
developers
and
others"
intended
by
Congress.
S.
Rep.
107­
2
at
4.
This
rule
does
not
appear
to
reduce
the
likelihood
of
CERCLA
liability
risk.
Congress
did
not
intend
to
hold
brownfield
redevelopers
liable
for
finding
all
contamination
that
might
be
present.
If
the
proposed
changes
are
implemented,
such
a
requirement
would
defeat
the
intended
purpose
of
the
legislation.
We
suggest
that
the
novel
"
performance
based"
approach
is
antithetical
to
the
intent,
in
the
context
of
Congressional
directive
to
"
clarify
the
obligations
of
any
party
who
seeks
to
use
the
[
innocent
purchaser]
defense,"
S.
Rep.
102­
2
at
13,
and
to
"
provide
protection
to
persons
who
wish
to
purchase
contaminated
property."
Id.
at
11.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Small,
Arthur
Comment
Number:
0424
Excerpt
Number:
1
Excerpt
Text:
My
comments
focus
on
the
open­
ended
nature
of
the
proposed
AAI
standards.
I
believe
that
the
open­
ended
nature
of
the
new
standard
may
create
negative
consequences
both
for
economic
development
and
for
public
health.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Small,
Arthur
Comment
Number:
0424
Excerpt
Number:
3
Excerpt
Text:
Potential
effects
of
the
open­
ended
search
requirements
on
public
health.

Do
the
open­
ended
search
requirements
nonetheless
create
important
benefits
for
public
health?
Might
these
benefits
be
large
enough
to
outweigh
the
costs?
There
is
reason
to
be
skeptical.
If
the
open­
ended
rules
inhibit
transactions
and
development,
they
will
inhibit
the
subsequent
development
of
the
real
estate.
The
process
82
of
development
­
the
sending
in
of
bulldozers
and
backhoes
­
will
often
itself
provide
the
best
opportunity
to
discover
contamination.
By
discouraging
development,
the
rules
simultaneously
discourage
the
information
discovery
that
development
brings.
Contamination
problems
that
might
have
been
discovered
will
then
instead
fester.
Ongoing
threats
to
public
health
may
then
continue
undetected,
untreated.

In
sum:
The
open­
ended
search
requirements
look,
in
economic
terms,
like
a
bad
idea.
They
are
do
not
appear
justified,
either
on
economic
or
health
grounds.
I
urge
you
to
drop
these,
and
replace
them
with
closed­
ended,
specifically
enumerated
requirements.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
We
encourage
you
to
refer
to
the
economic
impacts
analysis
included
in
the
docket
for
the
proposed
rule.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0427
Excerpt
Number:
3
Excerpt
Text:
It
seems
to
me
that
the
agency
is
opening
a
Pandora's
box
of
possible
information
that
is
simply
going
to
confuse
the
industry,
make
property
inquiry's
so
expensive
that
Banks
and
Lenders
will
simply
forego
the
process
and
assume
or
insure
the
risk,
which
will
increase
the
damage
done
to
the
environment
_
with
after
the
fact
research,
instead
of
catching
problems
before
they
occur.

I
don't
like
the
All
Appropriate
Inquiries
proposal
as
I've
seen
so
far.
Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
We
encourage
you
to
refer
to
the
economic
impacts
analysis
included
in
the
docket
for
the
proposed
rule.

Commenter
Organization
Name:
Dannatt,
Georgina
Comment
Number:
PM­
0359­
0004
Excerpt
Number:
1
Excerpt
Text:
One
thing
that
is
often
lacking
is
common
sense.
Unfortunately,
I
do
not
believe
the
performance­
based
standards
approach
will
remedy
many
of
the
current
problems.
In
some
cases,
it
may
be
necessary
for
the
proposed
rule
to
be
prescriptive,
rather
than
83
leaving
it
up
to
the
judgement
of
the
provider.

Frequently,
the
consultant
meets
only
the
minimum
requirements
due
to
time
and
pricing
pressures,
failing
to
answer
some
of
the
obvious
questions.
There
is
too
much
focus
on
what
the
current
site
is,
and
past
uses
may
be
completely
overlooked.
Additionally,
there
is
no
proper
investigation
of
current
uses,
such
as
the
basic
regulatory
compliance
status.
When
data
failure
is
encountered,
no
effort
is
made
to
obtain
data
from
an
alternate
source.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.
84
1.1.2.2
The
Proposed
Rule
Is
Not
Protective
of
Human
Health
and
Environment
Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
2
Excerpt
Text:
I.
Historical
Context
for
Objections
and
Withdrawal
After
years
of
debate,
analysis,
and
deliberation,
Congress
passed
H.
R.
2869,
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
in
2001
("
Brownfields
Law").
While
U.
S.
PIRG
neither
supported
nor
opposed
enactment
of
the
Brownfields
law,
we
consistently
worked
with
members
of
Congress
and
the
Administration
to
maintain
protections
for
public
health
and
environmental
quality
under
the
law.
The
minimally
adequate
criteria
for
AAI
were
a
central
topic
during
these
negotiations.

U.
S.
PIRG's
position
­
then,
as
now­
is
that
the
criteria
of
the
Brownfields
Law
and
the
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process,
E
1527­
97"
(
97
ASTM
standards)
provide
the
minimum
level
of
protection
for
AAI.
Congress
also
determined
in
Section
223
of
the
Brownfields
Law
that
the
97
ASTM
standards
should
be
utilized
to
satisfy
the
AAI
requirement
for
properties
purchased
after
May
1997,
until
the
new
regulations
are
promulgated.
AAI
requirements
that
are
weaker
than
the
97
ASTM
standards
increase
the
potential
that
people
and
the
environment
will
continue
to
be
exposed
to
unsafe
levels
of
contamination
without
notice
of
such
dangers.

Without
such
notice,
contamination
can
spread­
endangering
the
community
and
driving
up
clean
up
costs.
Weaker
standards
can
also
allow
sellers
of
contaminated
property
to
profit
without
consideration
of
the
condition
of
the
property.
In
addition,
holding
sellers
responsible
for
contaminated
property
may
become
more
difficult
after
transfer
because
profits
may
be
put
out
of
reach
after
the
sale.
Finally,
purchasers
may
be
unaware
that
they
do
not
have
the
resources
to
manage
the
contaminated
property,
if
they
do
not
have
adequate
notice
of
the
property's
condition.

Response:
The
Agency
disagrees
with
the
commenter's
notion
that
the
All
Appropriate
Inquiries
rule
is
less
stringent
than
the
ASTM
guidance.
We
believe
that
the
final
rule
is
more
comprehensive
in
protecting
human
health
and
the
environment
because
it
is
based
upon
clear
objectives
and
establishes
a
performance­
based
approach
to
conducting
all
appropriate
inquiries.
The
advantage
of
this
approach
is
that
a
party
cannot
simply
perform
each
action
independently
and
gain
liability
protection;
rather
they
must
complete
the
investigation
in
good
faith,
in
compliance
wit
clear
objectives,
and
by
using
the
performance
standards
as
guidelines.
In
addition,
the
final
rule
establishes
are
far
more
stringent
definition
of
environmental
professional
and
requires
that
an
individual
meeting
this
definition
oversee
the
conduct
of
all
activities
and
review
and
sign
the
written
report
of
findings.
85
EPA
notes
that
the
statute
does
not
provide
liability
protection
for
sellers
of
contaminated
property,
or
any
party
that
is
a
potentially
responsible
party.

Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
7
Excerpt
Text:
It
is
for
the
aforementioned
reasons
that
U.
S.
PIRG
withdrew
from
the
negotiated
rule
making
and
opposes
the
AAI
final
language.
It
is
of
great
concern
to
our
organization
that
public
health
and
environmental
quality
have
been
sacrificed
for
substandard
regulations
that
will
likely
do
more
harm
than
good.

Response:
EPA
notes
that
the
commenter
did
participate
in
the
Negotiated
Rulemaking
Process,
did
agree
to
the
consensus
regulatory
standards
developed
by
the
Negotiated
Rulemaking
Committee,
and
then
several
weeks
following
its
agreement
to
the
consensus
notified
EPA
by
mail
that
the
organization
wished
to
withdraw
from
its
agreement.

Commenter
Organization
Name:
Congressmen
Dingell,
Boxer,
et
al
Comment
Number:
0332
Excerpt
Number:
2
Excerpt
Text:
A
weak
standard
for
the
environmental
inquiry
provided
in
the
AAI
rule
in
connection
with
the
sale
or
transfer
of
property
will
result
in
more
contaminated
sites
going
undiscovered,
allowing
the
contamination
to
go
unaddressed
and
allowing
a
continuing
threat
to
public
health
and
the
environment.
Sellers
of
contaminated
property
may
take
excess
profits
from
the
sale
of
the
property
and
put
those
profits
out
of
reach
before
the
need
for
cleanup
is
known.
Taxpayers
are
then
more
likely
to
bear
the
cost
of
cleanup.

In
addition,
purchasers
may
find
after
acquiring
a
property
that
it
is
contaminated
and
not
suitable
for
the
planned
redevelopment.
Moreover,
purchasers
who
would
otherwise
be
required
to
take
reasonable
steps
to
mitigate
the
environmental
harm
on
the
property
to
obtain
a
liability
exemption
may
argue
that
it
is
not
reasonable
to
expect
such
steps
when
the
contamination
is
not
known
and
the
AAI
standard
has
nevertheless
been
met.

Response:
Sellers
of
contaminated
property
and
other
potentially
responsible
parties
are
not
provided
with
protection
from
CERCLA
liability.
The
final
rule
provides
absolutely
no
protection
for
any
party
who
is
potentially
responsible
for
releases
or
threatened
releases
of
hazardous
substances.
Further,
purchasers
also
must
take
reasonable
steps
when
contamination
is
found.
The
fact
that
a
property
owner
missed
a
release
during
all
appropriate
inquiries
does
not
provide
them
with
immunity
from
complying
with
all
the
other
"
continuing
obligations"
once
a
release
is
discovered.
In
addition,
an
inadequately
86
performed
all
appropriate
inquiries
investigation
will
not
be
sufficient
defense
to
violating
the
continuing
obligations.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
17
Excerpt
Text:
NPCA
strongly
recommends
EPA
review
and
revise
the
AAIs
content
in
order
to
more
appropriately
commensurate
the
cost
and
burdens
associated
with
the
standards
to
the
environmental
benefit
and
actual
liability
protection
afforded
potential
property
owners,

Response:
The
Agency
believes
that
the
balance
between
protecting
human
health
and
the
environment
and
promoting
development
by
keeping
costs
reasonable
has
been
found.
The
final
rule
has
incorporated
several
suggestions
made
by
commenters
and
has
better
effectuated
this
balance.
For
example,
the
definition
of
environmental
professional
has
been
broadened
to
allow
qualified
individuals
who
would
have
otherwise
been
shut
out
of
the
profession
to
participate
in
AAI
investigations.
Also,
the
requirement
to
search
for
institutional
controls
on
neighboring
properties
has
been
removed
as
the
Agency
views
this
as
an
unnecessary
burden
without
sufficient
benefits.

Commenter
Organization
Name:
Wilson,
Shawn
Comment
Number:
0440
Excerpt
Number:
1
Excerpt
Text:
Please
scrap
the
Proposed
Rule
on
Standards
and
Practices
for
All
Appropriate
Inquiries.

FIRREA
created
appraisal
certification
and
appraisal
standards
for
a
very
good
reason:
to
protect
the
public.

Response:
Please
see
response
to
comment
number
0212.
EPA
agrees
with
the
commenter
that
there
is
an
opportunity
to
coordinate
appraisal
activities
in
a
better
organized
fashion.
It
is
the
Agency's
hope
that
the
appraisal
industry
will
be
recognized
by
environmental
professionals
and
owners/
grantees
of
property
as
valuable
partners
in
many
instances.
However,
we
reiterate
that
the
use
an
appraisal
is
within
the
discretion
of
the
owner
of
the
property
(
or
the
grantee).
87
1.1.2.3
The
Proposed
Rule
Is
Inconsistent
with
the
Brownfields
Amendments
and/
or
the
ASTM
Standard
Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
4
Other
Sections:
NEW
­
2.1.6
­
Revise
educational
requirements
to
allow
individuals
with
substantial
relevant
work
experience
to
qualify
as
EPs
Excerpt
Text:
II.
Examples
of
Weaknesses
in
the
Draft
Proposed
AAI
Rule
The
examples
set
forth
below
demonstrate
just
a
few
of
the
ways
the
draft
proposed
AAI
rule
weakens
current
protections
for
public
health
and
environmental
quality.
The
draft
proposed
AAI
rule
contains
numerous
inconsistencies
with
the
Brownfields
Law
and
provides
a
less
effective
process
for
assessing
the
condition
of
a
site
than
the
97
ASTM
standard.
A
comprehensive
description
of
the
inconsistencies
between
the
Brownfields
Law
and
the
draft
AAI
proposed
rule,
and
all
of
the
ways
in
which
the
proposed
rule
is
weaker
than
the
97
ASTM
standard
are
outside
the
scope
of
this
letter.
The
examples
are
provided
as
an
illustration
of
the
problem
with
the
draft
proposed
rule.

Response:
Please
see
response
to
comment
number
0258,
excerpt
2.

Commenter
Organization
Name:
Congressmen
Dingell,
Boxer,
et
al
Comment
Number:
0332
Excerpt
Number:
1,
3
and
6
Excerpt
Text:
A
central
purpose
of
the
Brownfields
law
is
to
encourage
the
redevelopment
of
contaminated
sites,
without
sacrificing
public
health,
the
environment,
or
the
principle
that
polluters,
not
taxpayers,
should
pay
for
the
cleanup.
These
are
the
core
principles
of
the
law.
As
members
of
the
Committee[
s]
with
jurisdiction
over
Superfund
and
Brownfields
programs,
we
are
commenting
on
this
rule
because
of
our
concern
that
portions
of
it
are
inconsistent
with
the
intent
of
Congress
and
are
unauthorized
by
the
Brownfields
law.
Portions
of
the
rule
are
weaker
than
what
was
required
by
statute
and
do
not
reflect
the
careful
balance
struck
in
the
law.

Specific
criteria
were
required
in
the
Brownfields
law
to
ensure
clear
and
consistent
standards
in
the
AAI
rule.
These
criteria
were
required
to
ensure
that
a
strong
environmental
inquiry
would
be
conducted
before
the
sale
or
transfer
of
a
property
and
before
the
AAI
condition
of
the
liability
exemptions
provided
for
in
the
Brownfields
law
would
be
satisfied.
Key
elements
have
not
been
included
in
the
proposed
rule
as
required.
The
Brownfields
law
contains
specific
criteria
to
be
included
in
the
standards
and
practices
required
in
the
AAI
rule.
The
failure
to
incorporate
these
criteria
in
the
rule
is
contrary
to
the
intent
of
Congress
and
is
not
authorized
by
the
statute.
88
Response:
The
final
rule
addresses
each
of
the
criteria
included
in
the
statute.
In
fact,
the
final
rule
is
organized
around
the
ten
criteria
provided
by
Congress
in
CERCLA.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
1
Excerpt
Text:
CBPA
members
are
involved
in
the
redevelopment
of
environmentally
distressed
properties.
After
reviewing
the
new
proposed
standard,
we
have
come
to
the
conclusion
that
the
proposed
rule
obscures
the
obligations
of
prospective
purchasers
and
increases
uncertainty,
rather
than
clarifying
the
obligations
of
purchasers
and
providing
certainty
as
was
intended
by
the
Brownfields
Act
of
2002.
We
believe
that
the
net
effect
of
the
new
standard
would
be
to
discourage
development
of
brownfields,
rather
than
encouraging
their
development
as
Congress
intended
in
the
Brownfields
Act.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
7
Excerpt
Text:
We
believe
the
proposed
rule
obscures
the
obligations
of
prospective
purchasers
and
greatly
increases
uncertainty,
rather
than
clarifying
the
obligations
of
purchasers
and
providing
certainty
as
was
intended
by
the
Brownfields
Act.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
2
Excerpt
Text:
When
we
apply
the
proposed
rule
to
sites
that
we
are
familiar
with,
small
idle
or
underutilized
parcels
in
economically
depressed
communities,
we
see
the
new
rule
to
be
problematic.
We
believe
it
will
discourage
redevelopment
of
brownfields
in
economically
depressed
neighborhoods
by
increasing
developer
liability,
rather
than
encouraging
development
by
decreasing
liability
exposure
as
Congress
intended.
This
will
undermine
the
reforms
of
SB
32
that
we
worked
so
hard
to
achieve.

Response:
Please
see
responses
to
comment
numbers
0057
(
excerpt
1)
and
0354
(
excerpt
3).
89
Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
7
Excerpt
Text:
C.
EPA'S
Task
is
Largely
to
Describe
Industry
Customary
Practice
and
the
Criteria
Included
in
the
AAI
Rule
Must
be
Applied
in
a
Manner
Consistent
with
Customary
Practice
The
negotiated
rulemaking
committee
applied
their
charge
in
a
largely
prescriptive
manner:
that
the
government
should
dictate
to
the
real
estate
market
what
the
content
of
an
appropriate
pre­
purchase
inquiry
shall
be.
This
is
not
the
task
Congress
assigned
to
the
agency.
Rather
EPA's
role
in
promulgating
standards
and
practices
for
All
Appropriate
Inquiry
is
largely
descriptive.
Congress
intended
EPA
to
clarify
and
codify
what
the
real
estate
industry
considers
to
be
good
commercial
practice
with
respect
to
All
Appropriate
Inquiry.
The
statutory
definition
of
All
Appropriate
Inquiry
is
an
investigation
"
into
the
previous
ownership
and
uses
of
the
facility
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601
(
35)(
B)(
i)(
I)
(
emphasis
added).
The
criteria
provided
by
Congress
for
inclusion
in
the
regulation
at
section
9601(
35)(
B)(
iii)
are
provided
in
the
context
of
describing
their
role
in
generally
accepted
practice.

If
EPA
discards
customary
standards
and
practices
in
favor
of
new
procedures
that
committee
has
devised,
it
will
render
a
significant
provision
of
the
statute
surplusage.
The
Supreme
Court
has
often
advised
that
it
is
"
reluctant
to
treat
statutory
terms
as
surplusage
in
any
setting."
Duncan
v.
Walker,
533
U.
S.
167,
174
(
2001).
This
is
especially
so
"
when
the
term
occupies
so
pivotal
a
place
in
the
statutory
scheme."
Id.
"
Generally
accepted
good
commercial
and
customary
standards
and
practices"
have
been
the
polestar
of
All
Appropriate
Inquiry
since
1986.
Moreover,
the
statute
commands
EPA
to
promulgate
regulations
"
to
carry
out
all
appropriate
inquiries
under
clause
(
i)"
and
clause
(
i)
describes
all
appropriate
inquires
as
being
"
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601(
B).

In
the
following
sections
we
analyze
provisions
of
the
proposed
rule
in
which
we
believe
that
the
committee
applied
the
statutory
criteria
of
42
U.
S.
C.
§
9601
(
35)(
B)(
iii)
in
a
manner
inconsistent
with
Congressional
intent
because
inter
alia
the
committee
failed
to
properly
consider
factors
Congress
deemed
relevant,
including
generally
accepted
industry
standards.
See
Motor
Vehicle
Mfrs.
Ass'n
v.
State
Farm
Mut.
Auto
Ins.
Co.,
463
U.
S.
29,
42­
43
(
1983).

Response:
EPA
disagrees
with
the
commenter.
The
Agency
points
out
that
the
final
rule
is
not
significantly
different
than
the
procedures
included
in
the
interim
standard,
which
the
commenter
contents
is
"
generally
accepted
good
commercial
practice."
EPA
points
out
that
in
addition
to
establishing
that
all
appropriate
inquiries
would
be
conducted
in
"
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
90
practices,
Congress
established
ten
criteria
in
that
statute
that
EPA
must
include
in
the
federal
regulations
for
all
appropriate
inquiries.
As
EPA
pointed
out
in
the
preamble
to
the
proposed
rule,
the
current
interim
standard,
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process,
does
not
fully
address
each
of
the
statutory
criteria.
Congress
did
not
intend
for
EPA
to
merely
clarify
and
codify
current
industry
practice.
By
including
environmental
professionals
with
first
hand
experience
in
conducting
environmental
site
assessments
on
the
Negotiated
Rulemaking
Committee,
EPA
ensured
that
generally
accepted
good
commercial
practices
were
considered
during
the
development
of
the
proposed
rule.
The
Agency
points
out
that
these
stakeholders'
expertise
and
knowledge
of
industry
practices
and
standards
and
the
technical
know
how
possessed
by
them
was
a
very
positive
force
in
guiding
the
development
of
the
proposed
rule.
Further,
the
current
interim
standard,
implemented
by
Congress,
was
meant
to
be
temporary.
Arguably,
by
definition,
the
standards
and
practices
contained
in
the
Agency's
proposed
rule
is
an
industry
standard
based
upon
generally
accepted
good
commercial
and
customary
standards
and
practices
due
to
the
fact
that
it
was
developed
in
large
part
by
industry
leaders
and
other
users
who
were
members
of
the
Negotiated
Rulemaking
Committee,
including
the
National
Association
of
Homebuilders,
The
Real
Estate
Roundtable,
National
Association
of
Industrial
and
Office
Properties,
International
Council
of
Shopping
Centers,
National
Brownfields
Association,
the
National
Ground
Water
Association,
American
Society
of
Civil
Engineers,
and
Wasatch
Environmental,
Inc.,
to
name
a
few.
(
40
CFR
Part
312,
p.
52550).

Commenter
Organization
Name:
Eden
Housing
Comment
Number:
0380
Excerpt
Number:
1
Excerpt
Text:
After
reviewing
the
new
proposed
standard,
we
have
come
to
the
conclusion
that
the
proposed
rule
obscures
the
obligations
of
prospective
purchasers
and
increases
uncertainty,
rather
than
clarifying
the
obligations
of
purchasers
and
providing
certainty
as
was
intended
by
the
Brownfields
Act
of
2002.
We
believe
that
the
net
effect
of
the
new
standard
would
be
to
discourage
development
of
brownfields,
rather
than
encouraging
their
development
as
Congress
intended
in
the
Brownfields
Act.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Eden
Housing
Comment
Number:
0380
Excerpt
Number:
8
Excerpt
Text:
We
believe
the
proposed
rule
obscures
the
obligations
of
prospective
purchasers
and
greatly
increases
uncertainty,
rather
than
clarifying
the
obligations
of
purchasers
and
providing
certainty
as
was
intended
by
the
Brownfields
Act.
91
Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
16
Excerpt
Text:
The
Proposed
Rule's
standards,
particularly
those
standards
outlined
herein,
are
costly,
burdensome
and
in
some
cases
may
be
unachievable.
Thus,
the
primary
purpose
of
the
Act,
to
exempt
from
liability
under
CERCLA
certain
owners
of
real
property
and
contiguous
property
on
which
there
has
been
a
hazardous
substance
release
or
threatened
release
has
been
thwarted.
While
clarification
on
requirements
for
the
innocent
landowner
defense
as
well
as
standards
for
contiguous
property
and
bona
fide
purchaser
defenses
would
have
provided
much
needed
incentive
and
assurance
to
potential
purchasers
and
lessees
of
industrial
properties,
particularly
brownfield
properties,
as
currently
drafted,
the
Proposed
Rule
does
not
serve
that
purpose.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.

Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
1
Excerpt
Text:
The
Brownfields
Law
carefully
strikes
a
balance
between
the
need
to
encourage
the
redevelopment
of
contaminated
sites
while
at
the
same
time
ensuring
that
public
health
and
the
environment
are
protected
and
that
those
responsible
for
the
harm,
not
the
taxpayer,
are
held
responsible
for
the
cleanup.
Unfortunately,
the
proposed
AAI
rule
fails
to
meet
even
the
minimum
criteria
specifically
required
by
the
Brownfields
Law.

The
proposed
AAI
rule
is
also
weaker
than
the
interim
standards
established
in
the
Brownfields
law­
the
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process,
E
1527­
97"
(
the
"
97
ASTM
Standard").
The
general
performance
standards
contained
in
the
proposed
AAI
rule
are
no
substitute
for
the
specific
criteria
contained
in
the
Brownfields
Law
and
the
specific
procedures
and
rigorous
documentation
requirements
contained
in
the
interim
97
ASTM
Standard.

The
net
effect
of
these
deficiencies
is
that
the
proposed
AAI
rule
makes
it
more
likely
contamination
will
not
be
identified
before
the
sale
or
transfer
of
property.
This
endangers
public
health
and
may
allow
sellers
to
profit
from
a
sale
while
placing
those
profits
out
of
reach
before
the
need
for
cleanup
is
even
known
­
making
it
more
likely
that
taxpayers
will
end
up
paying
the
cleanup
costs.
Purchasers
may
also
purchase
properties
without
adequate
investigation
only
to
find
out
later
that
those
sites
may
not
be
suitable
for
the
planned
future
use.
92
In
addition,
the
low
threshold
established
in
the
proposed
AAI
rule
could
allow
the
purchaser
to
argue
that
they
followed
CERCLA,
including
the
AAI
rule,
and
failed
to
find
contamination.
Then,
they
could
claim
entitlement
to
liability
relief
under
CERCLA
while
arguing
that
they
are
not
responsible
for
taking
the
steps
necessary
to
mitigate
the
harm
as
required
in
the
statute
because
it
would
not
be
reasonable
for
them
to
have
to
address
contamination
that
was
not
discovered
during
the
AAI
investigation.

Response:
Please
see
responses
to
comment
numbers
0258
(
excerpt
2)
and
0332
(
excerpt
2).

Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
6
Excerpt
Text:
­­
Landowners
and
Environmental
Professionals
Must
Achieve
Compliance
with
All
Statutory
and
Valid
Regulatory
Requirements
Establishing
protocols
in
document
review
is
an
essential
aspect
of
many
professional
activities
that
deal
with
property
transactions.
EPA's
vague
statements
in
the
proposed
rule's
preamble
appear
to
undermine
the
need
for
such
vitally
needed­
and
legally
required­
protocols
to
establish
AAI.
In
particular,
EPA's
statements
that
"
the
landowner
and
the
environmental
professional
must
'
seek
to
achieve'
the
proposed
objectives
and
performance
factors..."
(
emphasis
added)
undermine
the
importance
that
Congress
placed
on
certain
key
activities
in
the
Brownfields
Law
and
on
the
commonsense
need
to
investigate,
access
and
utilize
key
sources
of
information
that
can
inform
that
determination
of
whether
a
site
is
contaminated.

The
EPA
should
strive
to
increase
protections
by
promoting
precision
in
decision
making,
rather
than
reducing
clarity
in
the
regulatory
process.
Ambiguous
objectives
and
standards
are
an
inadequate
surrogate
for
establishing
minimum
requirements
for
the
review
of
documents
and
investigation
of
property.
Such
requirements
increase
certainty
for
businesses,
expedite
the
safe
development
of
properties
and
facilitate
business
and
judicial
review
of
decisions.
EPA
should
hold
parties
who
are
interested
in
receiving
a
liability
exemption
responsible
for
investigating
all
potentially
conditions
at
a
site.
However,
the
final
rule
must­
at
a
minimum­
also
require
the
investigation
of
all
documents
and
undertaking
of
all
activities
described
in
section
223
of
the
Brownfields
Law.

­
Conclusion
Establishing
weak
standards
in
the
AAI
rule
provides
an
incentive
for
the
seller
and
purchaser
alike
to
"
speak
no
evil,
hear
no
evil"
about
these
sites,
so
that
the
sale
can
proceed
which
benefits
the
seller,
while
the
purchaser
gets
liability
relief.
It
is
quite
clear
that
the
Brownfields
Law
establishes
specific
criteria
to
prevent
just
this
result.
The
failure
of
the
proposed
AAI
rule
to
meet
these
criteria
and
otherwise
protect
human
93
health,
the
environment
and
the
taxpayer,
will
require
that
substantial
changes
be
made
to
the
proposed
AAI
rule
before
it
moves
further
in
the
process.
In
light
of
these
serious
flaws,
we
felt
it
was
prudent
to
notify
EPA
of
these
concerns
as
quickly
as
possible.

Response:
Please
see
responses
to
comment
numbers
0258
(
excerpt
2)
and
0332
(
excerpt
2).

The
Agency
has
established
in
the
final
rule
very
clear
guidelines
including
interview
requirements
for
both
abandoned
and
non­
abandoned
properties,
interview
requirements
for
current
and
past
owners/
operators,
a
review
of
historical
sources
of
information,
a
search
for
recorded
environmental
cleanup
liens,
a
review
of
federal,
state,
local
and
tribal
records,
a
comparison
of
the
property
value
and
the
purchase
price,
consideration
of
commonly
known
or
reasonably
ascertainable
information
about
the
property,
documentation
of
data
gaps
and
much
more.
These
steps
are
very
specific.
Further,
the
liability
scheme
established
by
Congress
in
the
CERCLA
legislation,
which
requires
a
land
owner
to
comply
with
institutional
controls
and
acknowledges
continuing
obligations
is
not
changed
by
this
rule.

In
addition
to
prescribing
the
types
of
activities
that
must
be
conducted
to
address
each
of
the
statutory
criteria,
the
proposed
rule
established
clear
objectives
for
the
inquiries
and
a
set
of
performance
factors
that
must
be
met
in
carrying
out
the
requirements
of
each
criteria.
The
objectives
clearly
establish
the
types
of
information
that
must
be
collected
during
the
conduct
of
the
inquiries
(
see
section
312.20(
d)).
The
performance
factors
establish
quality
parameters
that
must
be
met
when
collecting
the
information
and
undertaking
the
activities
required
by
the
statutory
criteria
(
see
section
312.20(
e)).

The
objectives
and
performance
factors
are
not
vague
and
can
not
be
followed
in
lieu
of
the
statutory
criteria.
The
objectives
and
performance
factors
are
in
addition
to
the
criteria.
They
serve
to
guide
the
conduct
of
all
activities
required
by
the
statutory
criteria
and
ensure
that
all
activities
are
conducted
with
clear
objectives
and
to
a
standard
of
high
quality.
94
1.1.2.4
The
Proposed
Rule
Will
Negatively
Impact
Small
Businesses
Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
8
Excerpt
Text:
Antitrust
Implications
The
regulation
in
current
format
potentially
violates
US
antitrust
law
such
as
the
Sherman
Antitrust
Act
by
providing
engineers
and
geologists
with
an
unfair
competitive
advantage
by
providing
an
endorsement
of
a
particular
profession
without
examining
the
other
environmental
professions
around
it.
The
regulation
in
its
proposed
format
also
will
enable
engineers
to
fix
prices
for
services
since
other
environmental
professions
will
expire.
Simply
put,
there
will
be
shortage
of
labor
in
one
small
area
of
the
economy.
Since
there
will
be
a
shortage
of
labor,
existing
engineer
service
organizations
will
be
"
licensed"
to
set
whatever
price
they
choose
for
their
services
since
there
will
not
be
any
competition.

The
environmental
clean­
up
industry
had
global
revenues
last
year
of
$
12
billion
globally
with
$
7
billion
directly
in
the
US[
Footnote:
Industrial
Survey:
Environmental
and
Waste
Management,
(
New
York;
Standard
and
Poors,
October
7)
11.].
The
remediation/
Brownfields
property
renovation
industry
is
highly
fragmented
and
very
competitive.
As
a
result
of
these
economics,
the
top
five
engineering
firms
of
the
US
control
close
to
35%
of
gross
US
revenues
for
remediation
and
engineering
work.[
Footnote:
ibid]
The
next
ten
control
30%,
and
hundreds
of
small
firms
competing
for
the
other
35%
[
Footnote:
ibid].
The
regulation
in
its
current
format
will
wipe
out
the
smaller
firms
due
to
a
legalized
monopoly
and
bankruptcy
from
resulting
impacts.
Therefore,
EPA
will
be
providing
15
engineering
firms
across
the
country
with
nearly
100%
of
all
the
environmental
remediation
work
in
the
US.
These
firms
could
easily
consolidate
further
without
antitrust
controls.
They
may
also
fold
into
the
five
larger
engineering
firms
that
already
control
35%
of
the
market
share.

Response:
The
Agency
disagrees
with
the
commenter's
assertion
that
requiring
environmental
professionals
to
meet
certain
requirements
constitutes
a
potential
antitrust
violation.
There
is
no
unfair
advantage
provided
to
Professional
Engineers
or
Professional
Geologists.
The
definition
of
environmental
professional
in
the
final
rule
allows
for
individuals
who
are
not
P.
E.
s
or
P.
G.
s
to
qualify
as
environmental
professionals.

The
definition
of
an
environmental
professional
in
the
final
rule
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
95
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
§
312.20(
e)
and
(
f)
of
the
final
rule.

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
9
Excerpt
Text:
Discrimination
Issues
The
law
in
current
format
potentially
violates
US
Antidiscrimination
laws
and
has
a
significant
reduction
impact
on
minority
business
in
the
environmental
profession.
The
total
number
of
non­
engineering
environmental
professionals
in
the
United
States
is
estimated
at
1,120,584
[
Footnote:
Employed
and
Unemployed
Persons
by
Occupation:
Not
Seasonable
Adjusted,
Database
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].
The
total
number
of
black
non­
engineering
environmental
professionals
is
estimated
at
100,853
[
Footnote:
Employment
Status
of
Civilian
Population
by
Race
Sex
96
and
Age,
Database
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].

The
total
number
of
Hispanic/
Latin
non­
engineering
environmental
professionals
is
estimated
at
123,264
[
Footnote:
Employment
Status
of
By
Hispanic
or
Latino
Population
by
Race
Sex
and
Age,
Database
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].
The
total
number
of
Asian
non­
engineering
environmental
professionals
is
44,823
[
Footnote:
Employment
Status
of
Civilian
Population
by
Race
Sex
and
Age,
Database
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].
The
total
number
of
female
environmental
professionals
is
437,028
[
Footnote:
Ibid].
The
total
number
of
non­
engineering
minority
environmental
professionals
is
705,968
[
Footnote:
Ibid].
From
a
statistical
perspective,
roughly
63%
of
the
non­
engineering
environmental
profession
programs
are
comprised
of
minorities.
This
number
will
be
significantly
reduced
by
a
legalized
monopoly
given
to
the
engineers
and
enforced
by
EPA.

Response:
The
commenter
cites
statistics
regarding
the
demographics
or
heritage
of
non­
engineering
environmental
professionals
without
providing
any
information
regarding
what
specific
types
of
environmental
activities
these
professionals
are
currently
performing.
The
environmental
services
industry
compromises
much
more
than
the
market
for
Phase
I
environmental
site
assessments.
The
final
rule
in
no
way
provides
a
monopoly
for
any
profession.
There
is
no
unfair
advantage
provided
to
Professional
Engineers
or
Professional
Geologists.
The
definition
of
environmental
professional
in
the
final
rule
(
as
did
the
definition
in
the
proposed
rule)
allows
for
individuals
who
are
not
P.
E.
s
or
P.
G.
s
to
qualify
as
environmental
professionals.
In
addition,
persons
who
do
not
qualify
as
environmental
professionals
may
contribute
to
the
required
investigations
as
long
as
their
activities
are
conducted
under
the
responsible
charge
of
the
environmental
professional.

Commenter
Organization
Name:
Miles
&
Stockbridge
Comment
Number:
0277
Excerpt
Number:
3
Excerpt
Text:
In
closing,
Miles
&
Stockbridge
is
concerned
that
the
proposed
regulation
will
negatively
impact
small
businesses.
We
urge
a
more
thorough
analysis
by
EPA
to
address
these
issues.

Response:
EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
incremental
cost
of
$
58
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
$
8.
Thus,
the
cost
impact
to
small
entities
is
estimated
to
not
be
significant.
A
more
detailed
summary
of
our
analysis
of
the
potential
impacts
of
97
today's
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
18
Excerpt
Text:
­
B.
The
New
Rule
Will
Disproportionately
Impact
Low
Income
and
Minority
Communities
and
Small
Entities
Commercial
real
estate
transactions
involving
large
deals
and
prime
commercial
real
estate
will
be
affected
by
the
new
rule
but
the
additional
cost,
time,
and
exposure
to
liability
can
be
absorbed
by
the
upper
strata
of
the
market
because
the
potential
profits
outweigh
the
risks
and
transaction
costs.

For
those
transactions
that
the
Brownfields
Revitalization
Act
was
intended
to
encourageredevelopment
of
idle
or
abandoned
parcels
in
economically
depressed
neighborhoodsthe
rule
will
have
a
significant
chilling
effect.
These
parcels
are
located
primarily
in
low
income
and
minority
communities
and
are
often
developed
by
small
entities.
Additional
upfront
costs
for
conducting
the
site
assessment
running
into
thousands
of
dollars
can
be
a
deal­
breaker
where
profit
margins
are
already
thin
or,
in
the
case
of
non­
profit
development,
non­
existent.
The
time
involved
in
conducting
all
of
the
exhaustive
searches
and
interviews
required
by
the
new
rule
will
also
be
a
deal­
breaker
in
many
instances.
Real
estate
deals
often
come
together
under
intense
time
pressure.
The
additional
weeks
required
to
conduct
the
new
site
assessment
will
often
not
fit
within
the
time
constraints
of
sellers
and
lenders.
Our
developers
often
do
not
have
the
market
power
to
influence
closing
deadlines
imposed
by
lenders.
Nor
do
they
have
the
resources
to
buy
extensions
from
lenders
or
sellers.

Response:
The
Agency
based
its
cost
estimates
on
an
evaluation
of
the
differences
between
the
proposed
standards
for
AAI
and
the
content
of
the
ASTM
E1527­
2000
standard.
EPA
identified
the
technical
differences
between
the
proposed
rule
and
the
interim
standard
and
then
estimated
the
costs
associated
with
conducting
those
regulatory
activities
that
represented
tasks
over
and
above
those
conducted
in
implementing
the
interim
standard.
As
the
commenter
points
out,
the
ASTM
E1527­
2000
in
many
ways
includes
the
same
standards
and
practices
that
Congress
intended
and
that
EPA
included
in
the
proposed
and
final
rule.
As
explained
in
the
Agency's
Responses
to
other
points
asserted
by
the
commenter
above,
the
Agency
disagrees
with
the
commenter's
assertions
with
regard
to
increased
burdens
associated
with
the
final
rule,
over
and
above
the
ASTM
standard.
For
example,
for
reasons
outlined
above,
the
Agency
disagrees
with
the
commenter's
assertion
that
the
proposed
rule
requires
the
conduct
of
an
elaborate
market
analysis
for
compliance
with
the
requirement
to
consider
the
relationship
between
the
purchase
price
of
the
property
and
the
fair
market
value
of
the
property,
if
it
were
not
contaminated.
98
EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
incremental
cost
of
$
58
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
$
8.
Thus,
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
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
1
Excerpt
Text:
While
NPCA
applauds
this
effort
to
clarify
the
"
innocent
landowner
defense"
under
CERCLA
and
provide
viable
protection
from
CERCLA
liability
for
bona
fide
prospective
purchases
and
contiguous
property
owner
claims,
the
Proposed
Rule's
often
stringent
and
prescriptive
methods
may
prove
too
burdensome
to
realize.
The
Proposed
Rule
is;
in
Response
to
the
Small
Business
Liability
Relief
and
Brownfield's
Revitalization
Act
of
2001
(
hereinafter
referred
to
as
the
Act)[
Footnote:
Pub.
L.
107­
118].
The
purpose
of
the
Act,
among
other
things,
was
to
amend
CEP.
CLA
in
order
to
provide
certain
relief
for
potential
owners
from
liability
and
to
promote
the
cleanup
and
reuse
of
brownfields.
As
drafted,
however,
the
Proposed
Rule
may
actually
act
as
a
disincentive
to
potential
owners
from
purchasing,
cleaning
up
and
reusing
property
that
may
be
environmentally
contaminated.

By
providing
specific
regulatory
requirements
and
standards
to
be
followed
when
conducting
all
appropriate
inquiries
(
AAIs),
a
prerequisite
to
liability
protection
under
CERCLA,
the
Proposed
Rule
attempts
to
provide
certainty
to
potential
purchasers
of
contaminated
property.
Instead,
some
of
the
Proposed
Rule's
standards
present
a
significant
hurdle
to
potential
owners
that
might
otherwise
be
inclined
to
revitalize
contaminated
property.
This
is
particularly
true
for
small
businesses,
many
of
which
are
NPCA
members.
The
Proposed
Rule
makes
significant
changes
to
the
way
Phase
I
Environmental
Site
Assessments
(
ESAs)
have
been
traditionally
conducted
for
land
purchases.
These
changes
are
likely
.
to
not
only
increase
the
cost
of
a
typical
Phase
I
ESA,
but
lengthen
the
amount
of
time
needed
to
complete
routine
environmental
evaluation:
thereby
discouraging
potential
owners
from
pursuing
purchase
of
brownfield
properties.
This
is
particularly
disconcerting
as
many
of
the
Proposed
Rule's
increased
obligations
and
costs
are
not
commensurate
with
environmental
benefit.

Response:
Please
see
response
to
comment
number
0057,
excerpt
1.
In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
99
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
incremental
cost
of
$
58
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
$
8.
Thus,
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
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
3
Excerpt
Text:
This
is
especially
true
for
small
site
purchases
or
leases
and
multi­
purpose
development
sites.
The
Proposed
Rule
appears
to
be
designed
solely
for
large
and
single
property
acquisitions
as
it
does
not
address
lessee/
landlord
issues.
An
NPCA
member
evaluating
the
purchase
or
lease
of
space
­
for
example
as
a
retail
outlet
­
as
part
of
a
larger
brownfield
property
development,
would
be
more
likely
to
pursue
greenfield
opportunities
in
lieu
of
the
cost
and
risks
associated
with
the
Proposed
Rule's
standards.
Companies
may
engage
in
these
type
of
property
transactions
hundreds
of
times
a
year.
In
light
of
the
relative
size
and
nature
of
these
transactions,
companies
will
not
want
to
expend
the
enormous
amount
of
resources
the
proposed
AAIs
entail,
particularly
with
the
likely
risk
that
even
if
expended,
the
developer
could
still
be
denied
protection
from
liability
because
of
some
minor
oversight.
Unless
EPA
can
give
the
developers
and
stakeholders
some
confidence
that
undertaking
AAIs
will
provide
the
benefit
Congress
intended
under
the
Act
­
liability
protection
­
there
will
not
be
any
incentive
to
redevelop
brownfield
sites.

In
addition,
the
proposed
AAIs
do
not
take
into
account
confidentiality
and
liability
issues
with
regard
to
commercial
purchase
and
lease
transactions.
Traditionally,
a
Phase
I
ESA
is
used
as
a
screening
tool,
so
that
a
potential
property
can
be
quickly
evaluated
and
a
decision
to
move
forward
or
to
pursue
other
opportunities
can
be
made
without
triggering
confidentiality
or
liability
claims.
Under
current
Phase
I
ESAs
a
potential
purchaser
can
quickly
ascertain
whether
or
not
a
property
is
worth
pursuing.
This
can
generally
be
done
in
confidence
and
without
triggering
environmental
liability
on
the
part
of
the
current
property
owner.
The
Proposed
Rule's
requirements
will
not
allow
this
same
outcome.
In
fact,
because
of
the
depth
of
the
new
standards
requirements,
basically
Phase
II
ESAs,
a
prospective
purchaser's
inquiries
will
in
all
likelihood
be
readily
perceptible
and
may
expose
environmental
liabilities
which
where
previously
unknown.
100
Thus,
a
prospective
seller
may
be
put
in
an
untenable
position
by
a
prospective
purchaser
that
undertakes
the
new
AAIs,
yet
decides
not
to
purchase
or
lease
the
property.

Furthermore,
a
prospective
lessee
is
not
given
any
liability
protection
under
the
proposed
AAIs,
and
duplicative
inquiries
may
be
made.
The
Proposed
Rule's
liability
protections
are
only
afforded
to
the
owner
of
the
property.
As
CERCLA
liability
is
strict,
lessees
are
also
legally
responsible.
Does
EPA
intend
on
granting
a
lessee
of
property
covered
by
the
innocent,
bona­
fide
or
contiguous
property
liability
protection
the
same
protection
afforded
the
property
owner?
Lessee's
undertake
the
same
Phase
I
ESAs
as
purchasers,
and
under
the
Proposed
Rule's
requirements,
this
will
be
elevated
to
a
Phase
II
in­
depth
analysis,
yet,
they
are
still
left
with
indemnification
as
their
only
means
of
liability
relief.
Owners
are
extremely
reluctant.
to
provide
CTIRCLA
indemnification
­
thus,
lessees
will
duplicate
an
owner's
AAIs
efforts
in
this
case,
for
no
meaningful
liability
relief.
Again,
the
practical
consequences
of
the
Proposed
Rule's
uncertainties
and
inequities
will
lead
potential
purchasers
as
well
as
lessees
away
from
brownfield
properties.

Response:
Please
see
response
to
comment
0057,
excerpt
1.

In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.
We
encourage
you
to
refer
to
the
economic
impacts
analysis
included
in
the
proposed
rule.

As
for
confidentiality
issues,
EPA
disagrees
with
the
commenter's
assertion
that
a
need
to
keep
a
potential
transaction
confidential
outweighs
the
benefit
of
obtaining
necessary
information
about
the
environmental
conditions
of
a
property.
The
primary
purpose
of
conducting
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
If
such
conditions
are
not
investigated
and
identified
prior
to
purchasing
a
property,
it
may
be
difficult
for
a
property
owner
to
assert
that
he
or
she
is
not
a
potentially
responsible
party
should
a
release
be
identified
after
the
property
is
purchased.

Concerning
the
lessee
issue,
the
language
of
CERCLA
addresses
lessee
liability
with
regard
to
the
definition
of
a
bona
fide
prospective
purchaser.
Section
101(
40),
which
sets
out
the
criteria
for
the
liability
protections
afforded
a
bona
fide
prospective
purchaser,
says
that
the
liability
protection
is
available
to
a
"
person
(
or
a
tenant
of
a
person)
who
acquires
ownership
after
the
date
of
the
enactment
of
this
paragraph..."
and
meets
all
other
criteria
established
by
the
statute.
EPA
interprets
that
provision
to
mean
that
the
status
of
a
tenant's
liability
protection
or
a
tenant's
status
with
regard
to
being
a
bona
fide
prospective
purchaser
is
dependent
upon
the
status
of
the
property
owner.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
101
Excerpt
Number:
18
Excerpt
Text:
In
addition,
EPA
must
revise
the
AAIs
to
better
address
leaseholders
and
small
property
development.
The
traditional
Phase
I
ESA
screening
analysis
can
not
be
consumed
by
EPA's
new
standards
­
varying
options
for
the
type
of
property
and
its
use
must
be
taken
into
consideration.

Response:
Please
see
response
to
comment
0403,
excerpt
3.

EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
incremental
cost
of
$
58
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
$
8.
Thus,
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
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

EPA
sees
no
reason
to
vary
the
standards
for
all
appropriate
inquiries
based
upon
property
size.

Commenter
Organization
Name:
West
Berkeley
Association
Comment
Number:
0430
Excerpt
Number:
2
Excerpt
Text:
The
result
is
a
rule
that
appears
to
impose
an
impossible
retroactive
burden
on
small
existing
owners
and
has
a
significant
disparate
negative
impact
on
small
entities.
If
existing
small
property
owners
had
been
represented
on
the
committee,
we
do
not
think
this
would
have
happened.
And
we
do
not
think
EPA
itself
wants
to
impose
an
unfair
burden
on
small
property
owners.
However,
we
are
concerned
that
the
text
of
the
regulation
produced
by
the
committee
does
not
reflect
this
fact.

Response:
In
addressing
the
cost
issue,
we
note
that
the
Agency's
cost
analysis
indicates
that
the
cost
of
complying
with
the
final
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000
standard.

EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
102
incremental
cost
of
$
58
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
$
8.
Thus,
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
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

Small
business
and
small
community
interests
were
represented
on
the
Negotiated
Rulemaking
Committee.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
7
Excerpt
Text:
The
law
in
its
current
form
violates
U.
S.
antitrust
laws.
The
regulation
reduces
the
competition
by
providing
preferred
economic
treatment
of
engineers
and
geologists.

As
noted
by
the
Bureau
of
Labor
Statistics,
other
environmental
professionals
compromise
a
total
portion
of
the­­
a
significant
portion
of
the
economy
and
employment.
Because
of
economic
preferential
treatment,
geologists
and
engineers
could
effectively
create
a
monopoly
over
all
brownfields
projects
and
set
unfair
price
controls
that
would
impact
the
real
estate
market.

Response:
The
Agency
disagrees
with
the
commenter's
assertion
that
requiring
environmental
professionals
to
meet
certain
requirements
constitutes
a
potential
antitrust
violation.
There
is
no
unfair
advantage
provided
to
Professional
Engineers
or
Professional
Geologists.
The
definition
of
environmental
professional
in
the
final
rule
(
as
did
the
definition
in
the
proposed
rule)
allows
for
individuals
who
are
not
P.
E.
s
or
P.
G.
s
to
qualify
as
environmental
professionals.
In
addition,
persons
who
do
not
qualify
as
environmental
professionals
may
contribute
to
the
required
investigations
as
long
as
their
activities
are
conducted
under
the
responsible
charge
of
the
environmental
professional.
103
SECTION
2:
Definition
of
Environmental
Professional
Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
4
Excerpt
Text:
From
attending
a
public
meeting
in
St.
Louis
on
the
proposed
rule
as
well
as
reading
and
listening
to
comments
offered
during
the
rulemaking
process
and
during
the
public
comment
period,
I
recognize
that
a
few
entities
oppose
the
proposed
rule.
Most
of
these
objections
seem
to
focus
on
the
definition
on
an
environmental
professional
(
EP).
Examples
of
some
of
the
types
of
objections
follow:

­
There
are
objections
that
apparently
are
for
self­
serving
reasons,
e.
g.,
these
comments
usually
come
from
those
who
are
not
explicitly
listed
in
the
EP
definition,
but
who
may
satisfy
the
EP
definition
anyway.
Therefore,
this
is
really
a
non­
issue.

­
Some
are
based
on
misconceptions
and/
or
misunderstandings
about
the
rule,
e.
g.,
the
EP
must
do
all
aspects
of
an
AAI
study;
another
misconception
is
that
only
a
licensed
engineer
and/
or
geologist
can
be
an
EP.
This
statement
or
understanding
is
absolutely
incorrect.
In
practice
today,
very
few
site
assessment
studies
are
conducted
entirely
by
one
person.
Instead,
firms
typically
assign
multidisciplinary
project
teams
to
conduct
site
assessments.
These
teams
consist
of
individuals
with
various
types
of
education,
experience,
and
training.
Therefore,
project
teams
that
conduct
AAI
can
and
should
draw
upon
the
talents
and
unique
skills
that
others
have
that
are
well
suited
to
the
site
that
is
being
assessed.

­
These
objections
reflect
a
fundamental
lack
of
understanding
about
CERCLA
liability
and
they
confuse
other
environmental
or
business
issues
with
CERCLA
issues,
e.
g.,
many
studies
are
conducted
on
wooded
properties
or
agricultural
properties
so
biology,
agronomy,
or
forestry
degrees
are
essential.
While
individual
with
those
types
of
degrees
may
have
value
on
those
types
of
properties
for
non­
CERCLA
issues,
those
degrees
do
not
necessarily
provide
the
required
skills
associated
with
evaluating
the
presence
or
influence
of
releases
or
potential
releases
of
hazardous
materials
on
a
subject
site
or
bordering
sites.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.
104
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
105
2.1
License,
Educational,
and
Relevant
Experience
Requirements
2.1.1
Support
of
the
Proposed
Minimum
Requirements
Commenter
Organization
Name:
Freitag,
George
A
Comment
Number:
0072
Excerpt
Number:
2
Excerpt
Text:
My
experience
makes
it
clear
to
me
that,
unless
they
are
handled
properly,
many
types
of
properties,
including
brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
And
handling
them
properly
is
not
easy.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
'
environmental
professionals'
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
rule.
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.
106
Commenter
Organization
Name:
Crocetti,
Charles
Comment
Number:
0110
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
clearly
establishes
minimum
qualification
criteria
for
environmental
professionals
that
are
consistent
with
the
level
of
education/
experience
typically
necessary
to
collect
and
interpret
environmental
data,
and
develop
conclusions
and
recommendations
based
on
analysis
of
the
data
collected.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
2
Excerpt
Text:
The
AAI
rule
takes
into
account
both
academic
background
and
professional
experience
in
the
definition
of
the
environmental
professional
(
EP)
and
encourages
the
application
of
professional
judgement.
I
am
pleased
to
see
that
the
AAI
rule
establishes
a
specific
definition
of
an
EP
and
requires
certain
educational
requirements,
in
addition
to
standards
regarding
the
amount
and
type
of
training
for
professionals
conducting
an
AAI.
This
provides
for
an
objective
standard
to
measure
the
credentials
of
a
prospective
environmental
assessment
provider.
This
is
an
improvement
from
the
American
Society
for
Testing
and
Materials
(
ASTM)
E­
1527­
00
definition
of
an
EP,
which
only
refers
to
"
training
and
experience"
and
makes
no
mention
of
education.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
6
Excerpt
Text:
Again,
I
would
like
to
express
my
support
for
the
proposed
AAI
rule.
The
environmental
assessment
process
needs
to
be
held
to
a
standard
that
establishes
minimum
education
and
experience
qualifications
for
persons
conducting
AAI
studies.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
NGWA
Comment
Number:
0265
Excerpt
Number:
2
107
Excerpt
Text:
NGWA,
in
particular,
wants
to
go
on
record
as
supporting
the
definition
of
Environmental
Professional
as
proposed
in
the
August
26,
2004
Federal
Register.
The
definition
of
an
Environmental
Professional
is
especially
critical
given
the
proposed
rule's
performance
based
approach
and
its
heavy
reliance
on
the
judgment
of
the
Environmental
Professional.
The
Environmental
Professional
definition
was
reached
after
extensive
negotiations
that
considered,
among
other
things,
the
interests
of
current
practitioners
who
may
have
varying
backgrounds,
education
and
training.
The
negotiations
resulted
in
a
proposed
rule
that
provides
three
different
options
for
meeting
the
definition
of
Environmental
Professional.
Additionally,
the
proposed
rule
includes
a
grandfather
provision
that
specifically
balances
the
interest
in
continuing
to
perform
site
assessments
of
an
individual,
who
does
not
meet
one
of
the
three
options,
against
concerns
that
public
health
and
environmental
protection
are
achieved.
The
proposed
rule
also
provides
that
individuals
who
do
not
meet
either
the
definition
of
Environmental
Professional
or
the
grandfather
provision
may
assist
in
the
conduct
of
the
inquiry
under
the
responsible
charge
or
supervision
of
an
Environmental
Professional.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Engels,
Joseph
Comment
Number:
0287
Excerpt
Number:
1
Excerpt
Text:
As
a
practicing
environmental
professional
with
over
25
years
of
experience
evaluating
and
remediating
brownfields
sites,
I
would
like
to
comment
that
I
strongly
support
the
proposed
All
Appropriate
Inquiry
Rule.
I
am
particularly
encouraged
by
the
establishment
of
minimum
education
and
experience
standards
for
environmental
professional
qualifications
that
are
long
overdue
in
this
area
of
engineering
and
scientific
practice.
From
my
experience,
persons
who
do
not
have
an
appropriate
technical
college
degree
relevant
to
this
area
of
practice
are
not
qualified
to
make
sound
technical
decisions
and
to
offer
opinions
of
a
technical
nature.
For
example,
we
do
not
allow
persons
with
just
a
high
school
education
or
an
English
degree
to
offer
legal
or
medical
opinions.
This
is
an
issue
of
protection
of
the
public
welfare.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Less,
James
Comment
Number:
0290
Excerpt
Number:
3
Excerpt
Text:
My
experience
makes
it
clear
to
me
that,
unless
they
are
handled
properly,
many
types
of
properties,
including
brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
108
welfare.
And
handling
them
properly
is
not
easy.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
1
Excerpt
Text:
We
support
the
definition
of
an
Environmental
Professional.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Moors,
Scott
Comment
Number:
0298
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
support
the
proposed
rule
and
I
urge
the
Agency
to
adopt
it
as
proposed.
The
proposed
AAI
rule:
??
Encourages
project/
client/
public
sensitivity
by
permitting
the
flexibility
derived
from
a
performance­
based
approach
instead
of
a
prescriptive
approach.
The
rule
would
be
applicable
to
any
type
of
property.
??
Sets
minimum
qualification
criteria
for
environmental
professionals
(
EPs).
??
Allows
for
professional
judgment,
which
is
critical
in
the
proper
evaluation
of
the
risk
associated
with
a
particular
site.
??
Requires
a
broader
scope
of
environmental
inquiry
by
building
on
and
significantly
improving
the
existing
process
(
ASTM
E­
1527)
that
is
familiar
to
many
clients
(
users)
who
have
all
appropriate
inquiry
studies
performed.
This
approach
enhances
the
process
and
the
familiarity
will
help
avoid
?
gconfusion?
h
among
users
and
will
also
help
reduce
or
limit
the
cost
impacts.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.
109
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

We
agree
with
the
commenter's
assessment
of
the
strengths
of
the
performance
based
approach.
It
is
the
Agency's
contention
that
the
performance
based
approach
effectuates
Congressional
intent.
As
explained
in
the
preamble
to
the
proposed
rule,
the
advantage
of
a
performance­
based
approach
over
a
checklist
approach
to
conducting
the
inquiries
is
that
multiple
sources
of
information
need
not
be
consulted
for
the
same
information.

The
final
rule
(
as
did
the
proposed
rule)
encourages
environmental
professionals
to
use
discretion
and
professional
judgment
in
determining
the
best
sources
of
information
and
the
best
manner
in
which
to
obtain
information,
given
the
objectives
of
the
regulations
and
the
specific
characteristics
of
the
property
being
assessed.
EPA
anticipates
that
this
flexible
approach
will
prevent
a
waste
of
resources
in
the
case
of
properties
that
may
not
require
as
rigorous
of
an
investigation
due
to
available
information
about
a
property
or
particular
knowledge
about
a
property
that
may
not
be
available
in
the
case
of
other
properties,
while
at
the
same
time
maintaining
adequate
standards
to
ensure
environmental
protection
in
the
case
of
all
properties.

Commenter
Organization
Name:
Davis,
Colin
Comment
Number:
0300
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
110
Excerpt
Text:
I
am
in
support
of
the
proposed
AAI
rule
due
to:
It
establishes
minimum
qualifcation
criteria
for
environmental
professionals.
Allows
for
professional
judgement
in
evaluation
of
risk
associated
with
a
site.
Encourages
project/
client/
public
sensitivity
by
permitting
the
flexibility
derived
from
a
performance
based
approach
instead
of
a
perspective
approach.
Broader
scope
of
study
by
improving
the
current
standard
defined
in
ASTM
E1527.

Response:
Please
see
response
to
comment
number
0298,
excerpt
1.

Commenter
Organization
Name:
Erb,
Ronald
Comment
Number:
0301
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
would
like
to
add
my
support
to
the
proposed
rule
for
Standards
and
Practices
for
All
Appropriate
Inquiry.
I
believe
this
service
should
be
handled
by
persons
with
a
minimum
of
training
and
expertise
as
outlined
in
the
proposed
rule.
Site
specific,
performance
based
approaches
are
important
in
the
type
of
work
performed
by
environmental
professionals.

Response:
Please
see
response
to
comment
number
0298,
excerpt
1.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0303
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
approve
of
the
proposed
rule
for
AAI.
The
precriptive
approach
currently
used
in
the
ASTM
method
is
not
applicable
to
many
projects/
sites;
therefore,
a
more
flexible
approach,
as
is
proposed
in
the
AAI
is
an
improvement.
The
AAI
proposed
rule
also
sets
mimimum
qualifications
for
professions
conducting
the
inquiries
that
are
more
appropriate
to
the
inquiry
process.

Response:
EPA
appreciates
the
outpouring
of
support
received
for
the
performance
based
approach
to
All
Appropriate
Inquiries.
It
is
the
Agency's
contention
that
the
performance
based
approach
effectuates
Congressional
intent.
As
explained
in
the
preamble
to
the
proposed
rule,
the
advantage
of
a
performance­
based
approach
over
a
checklist
approach
to
conducting
the
inquiries
is
that
multiple
sources
of
information
need
not
be
consulted
for
the
same
information.
111
The
final
rule
(
as
did
the
proposed
rule)
encourages
environmental
professionals
to
use
discretion
and
professional
judgment
in
determining
the
best
sources
of
information
and
the
best
manner
in
which
to
obtain
information,
given
the
objectives
of
the
regulations
and
the
specific
characteristics
of
the
property
being
assessed.
EPA
anticipates
that
this
flexible
approach
will
prevent
a
waste
of
resources
in
the
case
of
properties
that
may
not
require
as
rigorous
of
an
investigation
due
to
available
information
about
a
property
or
particular
knowledge
about
a
property
that
may
not
be
available
in
the
case
of
other
properties,
while
at
the
same
time
maintaining
adequate
standards
to
ensure
environmental
protection
in
the
case
of
all
properties.

Please
also
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
QORE
Property
Sciences
Comment
Number:
0304
Excerpt
Number:
1
Excerpt
Text:
It
is
essential
that
when
establishing
a
Standard
for
All
Appropriate
Inquiry
that
there
also
be
a
minimum
standard
of
expertise
of
the
person
performing
the
investigation.
As
a
professional
engaged
with
performing
and
reviewing
due
diligence
reports,
I
have
seen
far
too
many
reports
that
did
not
address
all
the
essential
issues
on
a
site
and
many
omissions
that
could
have
resulted
in
danger
to
the
public.
I
believe
a
college
degree
in
an
engineering
or
environmental
field
and
at
least
one
year
experience
performing
due
diligence
work
under
the
supervision
of
a
more
experienced
professional
should
be
the
minimum
required
credentials
for
the
individual
performing
the
work.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
May,
Thomas
Comment
Number:
0310
Excerpt
Number:
1
Excerpt
Text:
I
support
the
proposed
rule.
Of
particular
note
is
the
education
and
training
requirement
for
persons
conducting
AAI
that
I
wish
to
single
out
as
particularly
important.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
fully
supportive
of
the
establishment
of
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
112
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
8
Excerpt
Text:
R&
W
supports
and
commends
the
EPA
for
allowing
persons
not
meeting
the
definition
of
EP
to
contribute
to
AAI
investigations.
This
is
necessary
to
provide
an
efficient
Phase
I
ESA/
AAI
market
and
maintain
reasonable
costs
to
prospective
purchasers.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
provision.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.

Commenter
Organization
Name:
QORE,
Inc
Comment
Number:
0324
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
We
have
long
needed
to
establish
a
minimum
level
of
qualifications
for
individuals
performing
environmental
assessments,
particularly
those
done
in
preparation
for
property
transactions.
The
proposed
rule
accomplishes
that
goal
and
for
this
reason
I
support
it.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
5
Excerpt
Text:
The
Band
agrees
that
an
undergraduate
or
graduate
degree
in
any
of
the
relevant
disciplines
of
engineering,
environmental
or
earth
science
is
appropriate.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
113
Commenter
Organization
Name:
Schultz,
Michael
Comment
Number:
0331
Excerpt
Number:
3
Excerpt
Text:
I
support
the
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.
From
my
experience,
unless
many
types
of
properties,
including
brownfield
sites,
are
handled
carefully,
they
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment
to
effectively
deal
with
these
sites.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
DWR
Consultants
Comment
Number:
0349
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.8
­
To
ensure
that
EPs
are
qualified,
a
national
test
and/
or
training
should
be
established
Excerpt
Text:
I
fully
support
the
enhancement
for
qualifications
of
Environmental
Professionals.
However,
I
think
some
sort
of
national
test
should
be
integrated
into
the
process
to
ensure
the
"
professionals"
are
qualified.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

EPA
determined
that
the
educational
and
professional
experience
qualifications
included
in
the
final
definition
of
environmental
professional
are
sufficient
without
the
added
burden
of
a
testing
requirement.
Such
a
requirement
would
not
only
place
additional
burden
upon
qualified
individuals,
but
the
Agency
or
state
governments
would
have
the
added
burden
of
establishing
scoring
procedures
and
recordkeeping
processes.

Commenter
Organization
Name:
Smith,
Michael
Comment
Number:
0360
Excerpt
Number:
2
Excerpt
Text:
As
an
owner
of
a
200
employee
firm
that
performs
environmental
site
assessments,
I
understand
that
even
the
apparently
simplest
brownfield
engagement
or
environmental
site
assessment
can
pose
latent
risks.
The
only
way
to
deal
effectively
with
those
risks
is
by
relying
on
professionals
who
have
the
education,
training,
experience,
and
good
judgment
needed
to
know
what
to
do
when
the
situation
they
encounter
is
not
identical
to
one
described
in
a
guide
of
some
kind,
or
contemplated
in
a
"
one­
size­
fits­
all"
standard.
114
For
that
reason,
I
am
pleased
that
the
proposed
rule
establishes
realistic
near­
and
longterm
definitions
of
"
environmental
professional,"
allows
for
and
even
encourages
the
application
of
the
professional
judgment
needed
to
help
consider
and
safeguard
the
public
trust,
and,
in
general,
"
raises
the
bar"
such
that
better
assessments
will
be
performed,
without
necessarily
increasing
costs.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Denton,
Robert
Comment
Number:
0381
Excerpt
Number:
3
Excerpt
Text:
­
My
experience
makes
it
clear
to
me
that,
unless
they
are
handled
properly,
many
types
of
properties,
including
brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
And
handling
them
properly
is
not
easy.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
Professional
qualifications
are
de
facto
requirements
in
every
discipline
of
modern
science
and
engineering,
and
it
is
appropriate
that
the
same
standard
should
apply
to
those
practicing
one
of
the
cornerstones
of
environmental
inquiry
as
well.
As
a
State
of
West
Virginia
Licensed
Remediation
Specialist
(
L.
R.
S.)
I
am
a
strong
supporter
of
standardized,
minimum
qualifications
in
all
stages
of
environmental
practice.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Gallagher,
Paul
Comment
Number:
0383
Excerpt
Number:
1
Excerpt
Text:
I
am
an
environmental
professional
who
currently
performs
environmental
assessments.
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
ASTM
E­
1527
process.
I
am
a
Certified
Professional
in
the
State
of
Ohio,
which
has
a
privatized
program.
If
EPA
continues
to
rely
on
the
private
sector
to
address
environmental
legacy
issues,
establishing
the
minimum
criteria
for
those
people
that
will
provide
opinions
that
affect
public
health
and
safety
is
essential.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
115
Commenter
Organization
Name:
Dohms,
Peter
Comment
Number:
0384
Excerpt
Number:
3
Excerpt
Text:
My
experience
makes
it
clear
to
me
that,
unless
they
are
handled
properly,
many
types
of
properties,
including
brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
Properly
handling
such
sites
is
not
easy.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Heywood,
Johanna
Comment
Number:
0387
Excerpt
Number:
3
Excerpt
Text:
My
experience
makes
it
clear
to
me
that,
unless
they
are
handled
properly,
many
types
of
properties,
including
Brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
And
handling
them
properly
is
not
easy.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
2
Excerpt
Text:
­
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.

­­
Intertox
applauds
the
U.
S.
EPA
for
providing
the
most
comprehensive
definition
of
an
environmental
professional.
Especially
significant
is
acknowledging
that
registered
geologists
and
engineers
are
not
the
only
professionals
providing
environmental
assessment
services.
This
proposed
rule
also
allows
non­
qualified
environmental
professionals
to
work
under
the
supervision
of
qualified
environmental
professionals.
116
This
should
be
of
financial
benefit
to
consultants
and
their
clients
as
it
is
frequent
practice
of
consultants
to
utilize
the
least
experienced,
least
trained,
and
least
compensated
individual
to
conduct
environmental
site
assessments.

­
The
proposed
division
of
responsibilities
for
conducting
all
appropriate
inquiries.

­­
The
proposed
rule
allows
for
a
reasonable
division
of
responsibility
in
conducting
all
appropriate
inquiries.
As
is
common
practice
in
consulting,
the
least
experienced,
least
trained,
and
least
compensated
individual
conducts
the
actual
environmental
site
assessment
with
a
final
report
review
by
a
P.
E.
or
geologist
at
a
senior
staff
level
or
higher
in
a
company.
The
proposed
rule
will
allow
this
practice
to
continue.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
3
Excerpt
Text:
Proposed
Qualifications
a)
Page
#
52576
b)
View:
I
support
the
EP
Qualifications.
The
proposed
qualifications
EP
are
appropriate
and
reasonable.
These
essentially
match
what
the
requirements
Lending
Institution
Phase
I
users
require.

c)
Assumptions:
Some
level
of
educational
and
job
training
experience
is
relevant
to
performing
Phase
I
assessments.
The
more
education
and/
or
training
should
lead
to
better
quality
reports.

d)
Burden:
Some
professionals
will
not
qualify
for
EP
under
the
AAI
status,
and
will
need
to
obtain
more
education
and/
or
experience.
AAI
does
not
preclude
such
individuals
from
obtaining
the
proper
qualifications.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
117
2.1.1.1
The
License
Requirement
Should
Not
Be
Revised
to
Allow
Individuals
Other
than
Professional
Engineers
and
Professional
Geologists
to
Qualify
as
EPs
Commenter
Organization
Name:
Vellone,
Daniel
A
Comment
Number:
0048
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.2
­
The
proposed
minimum
requirements
will
improve
quality
of
ESAs
Excerpt
Text:
In
my
experience,
unless
environmental
inquiries
are
handled
properly,
many
types
of
properties,
including
Brownfield
sites,
can
pose
a
potential
threat
to
public
welfare,
safety,
and
health.
Therefore,
the
person
(
or
firm)
who
is
designated
as
being
in
"
Responsible
Charge"
of
the
design
and/
or
leading
the
AAI
study
should
have
a
minimum
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
It
is
encouraging
to
see
that
the
EPA
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process,
allowing
otherwise
"
unqualified"
persons
acting
in
the
public
interest.
As
an
"
environmental
professional"
having
education,
experience,
and
professional
licensure,
I
believe
it
is
only
those
holding
licensure
as
Professional
Engineers
or
Professional
Geologists
who
can
be
held
accountable
to
the
highest
standards
of
professional
conduct
and
place
the
public
welfare
above
all
other
considerations.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0209
Excerpt
Number:
1
Excerpt
Text:
The
current
language
is
appropriate.
Requiring
PE
or
PG
certification
for
professionals
conducting
investigations
will
improve
the
quality
and
reliability
of
the
process.
Since
Professional
Engineers
are
prevented
by
law
from
practicing
outside
of
their
area
of
expertise,
previous
comments
seeking
to
change
this
language
have
no
basis.
Furthermore,
stringent
licensing
and
education
requirements
are
present
in
PE
and
PG
certification
that
are
not
present
in
other
certifications.
Changing
this
language
to
include
other
groups
of
certified
professionals
will
only
serve
to
dilute
the
effectiveness
of
the
current
regulation.

Response:
EPA
disagrees
with
the
commenter's
assertion
that
only
licensed
or
certified
Professional
Engineers
(
P.
E.
s)
and
Professional
Geologists
(
P.
G.
s)
should
be
included
in
the
definition
of
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
EPA
determined
that
the
types
of
activities
included
in
the
standards
established
by
the
118
final
rule
may
be
performed
by
individuals
with
a
broader
range
of
qualifications.
The
final
rule,
while
recognizing
that
P.
E.
s
and
P.
G.
s
with
three
or
more
years
of
relevant
full­
time
experience
meet
the
qualifications
for
an
environmental
professional,
provides
minimum
educational
and
experience
qualifications
for
additional
individuals
who
qualify
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.
EPA
believes
that
the
qualifications
included
in
the
definition
of
environmental
professional
provide
a
good
balance
of
educational
and
professional
experience
requirements.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0210
Excerpt
Number:
1
Excerpt
Text:
Comments
by
CHMM,
REP,
REM
and
other
groups
seeking
to
revise
this
definition
as
proposed
only
serve
to
undermine
the
rule's
effectiveness.
None
of
these
certifications
contain
the
stringent
review
and
testing
present
in
P.
E.
or
P.
G.
The
fractured
state
of
certification
and
licensing
in
this
field
is
the
root
problem
driving
this
rule.
Please
do
not
allow
these
organizations
to
hijack
this
standard.
If
the
industry
was
capable
of
certifying
and
regulating
itself,
there
would
be
no
need
for
this
proposed
rule.
119
Response:
EPA
determined
that
the
types
of
activities
included
in
the
standards
established
by
the
final
rule
may
be
performed
by
individuals
with
a
broader
range
of
qualifications
than
those
championed
by
the
organizations
cited
by
the
commenter.
The
final
rule,
while
recognizing
that
P.
E.
s
and
P.
G.
s
with
three
or
more
years
of
relevant
full­
time
experience
meet
the
qualifications
for
an
environmental
professional,
provides
minimum
educational
and
experience
qualifications
for
additional
individuals
who
qualify
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.
EPA
believes
that
the
qualifications
included
in
the
definition
of
environmental
professional
provide
a
good
balance
of
educational
and
professional
experience
requirements.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
1
Excerpt
Text:
We
would
like
to
address
section
D
of
the
rule
(
page
52552­
52555),
which
defines
the
proposed
qualifications
for
an
"
environmental
professional."
We
recommend
the
following
revisions:

1.
The
proposed
definition
of
an
environmental
professional
should
be
restricted
to
120
individuals
who
have
demonstrated
that
they
possess
the
necessary
education,
examination,
and
experience
to
assure
that
all
appropriate
inquires
and
environmental
site
assessments
are
undertaken
in
the
fair
and
objective
fashion
intended
by
Congress.

2.
The
definition
of
environmental
professional
should
be
limited
to
individuals
who
hold
a
professional
engineers
or
professional
geologists
license
and/
or
registration
from
a
state,
tribe,
or
U.
S.
territory
and
have
the
equivalent
of
three
years
of
full­
time
relevant
experience.
While
fiscal
protections
of
certain
sectors
of
the
market
may
be
appropriate
in
some
rulemakings,
it
seems
ironic
that
the
EPA
is
promoting
a
rule
that
may
not
aid
in
protecting
the
environment.
In
fact,
it
appears
that
certain
protections
may
be
reduced
in
the
interests
of
broadening
the
market.

In
the
rule,
EPA
acknowledges
that
professional
engineers
and
professional
geologists
have
the
specific
education
and
training
necessary
to
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases
as
envisioned
by
the
proposed
regulation,
especially
when
coupled
with
three
years
of
appropriate
experience.
EPA
correctly
references
the
rigors
of
the
licensing
and/
or
certification
processes
employed
for
both
professions.
The
Agency
further
acknowledges
that
these
professionals
are
held
responsible
(
both
legally
and
ethically)
for
safeguarding
the
public
health,
safety,
and
welfare
by
the
governmental
authorities
issuing
the
respective
professional
credentials.
Additionally,
the
Agency
cites
the
ongoing
and
plenary
supervisory
role
taken
by
the
states
to
police
professional
misconduct.

Professional
engineers
have
been
licensed
in
the
United
States
for
over
70
years
and
have
a
well­
deserved
reputation
for
undertaking
their
duties
with
professionalism
and
honesty.
The
Engineer's
Creed
expressly
states
that
engineers
should
"
place
service
before
profit,
the
honor
and
standing
of
the
profession
before
personal
advantage,
and
the
public
welfare
above
all
other
considerations."

NSPE's
goal
is
to
advance
public
health,
safety,
and
welfare;
not
to
displace
individuals
mid­
career.
Individuals
not
licensed
as
professional
engineers
or
professional
geologists
are
at
liberty
to
seek
licensure
in
either
of
these
fields.
Also,
those
that
are
not
licensed
also
have
the
opportunity
to
collaborate
with
someone
who
is
already
licensed,
such
as
working
as
a
sub­
consultant.
This
would
also
afford
them
the
opportunity
to
work
under
the
supervision
of
a
qualified
environmental
professional.
This
compromise
was
not
thoroughly
explored
by
the
working
group
that
prepared
these
remarks,
but
there
is
no
data
to
support
the
theory
that
the
current
market
conditions
related
to
professional
site
assessment
services
would
be
affected
by
this
collaboration.
Many
people
who
possess
the
qualifications
outlined
in
the
proposed
rule
would
likely
be
allowed
to
sit
for
a
licensing
exam.
This
licensing
examination
process
would
provide
some
objectivity
in
determining
whether
a
candidate
possessed
the
minimum
abilities
to
perform
the
functions
regulated
by
the
proposed
rule.
By
adding
an
objective
basis
to
measuring
the
qualifications
of
an
individual
(
i.
e.,
a
combination
of
education,
experience,
and
licensure)
the
public
would
be
afforded
the
same
protections
used
as
justification
for
originally
listing
professional
engineers
and
professional
geologists
as
acceptable
providers.
121
Response:
Please
see
response
to
commenter
number
0209,
excerpt
1.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
3
Excerpt
Text:
Since
enforcement
and
oversight
is
minimal
in
the
proposed
rule,
the
use
of
state­
licensed
professionals
would
ensure
that
only
duly
qualified
professionals
are
performing
these
services.

The
Negotiated
Rulemaking
Committee
is
to
be
commended
for
its
decision
to
not
include
certifications
from
independent
professional
certification
organizations
to
define
an
environmental
professional.
While
many
such
organizations
may
satisfy
certain
legitimacy
concerns,
it
would
seem
that
EPA's
core
purpose
could
be
usurped
by
the
administrative
functions
related
to
determining
qualifications.
Additionally,
we
feel
that
such
a
function
is
already
being
performed
by
government,
albeit
state
governments,
and
this
additional
oversight
function
is
simply
unnecessary.

Response:
Thank
you
for
your
comment.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Please
also
see
response
to
comment
number
0209,
excerpt
1.
122
Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
5
Excerpt
Text:
EPA
has
said
in
their
rulemaking
that
they
do
not
want
to
have
to
go
through
the
vetting
process,
so
it
is
NSPE's
ultimate
recommendation
that
the
definition
of
an
environmental
professional
continue
to
be
limited
to
a
professional
engineer
or
professional
geologist.
This
would
ensure
that
there
would
be
objective
criteria
established
regarding
the
qualifications
of
environmental
professionals
and
that
there
would
be
governmental
entities
at
the
state
level
in
place
to
regulate
those
individuals.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.

Commenter
Organization
Name:
Williams,
Brian
Comment
Number:
0282
Excerpt
Number:
1
Excerpt
Text:
I
am
a
registered
professional
engineer
and
a
registered
professional
geologist
practicing
in
Montana,
Idaho,
and
Washington
states.
I
have
worked
within
the
ASTM
standard
E­
1527
for
many
years,
and
I
am
glad
that
EPA
is
finally
putting
forth
a
rule
to
set
standards
for
those
persons
defined
as
"
environmental
professionals".
The
current
ASTM
standard
does
not
specify
the
level
of
education
of
those
persons
who
perform
the
environmental
studies
governed
by
the
proposed
rule.
As
a
professional
engineer
and
geologist,
I
have
seen
MANY
such
reports
developed
by
persons
who
were
(
and
continue
to
be)
TOTALLY
UNQUALIFIED
to
perform
such
services.
In
particular,
many
of
those
persons
who
are
listed
as
CHMM's
(
Certified
Hazardous
Materials
Managers)
have
no
formal
education
in
the
sciences
on
which
they
base
their
"
opinions"
.
I
attended
one
of
the
formative
meetings
of
the
CHMM
"
registration"
committee,
and
none
of
those
present
was
registered
as
an
engineering
or
science
professional
in
any
state.
Most
had
only
a
high
school
or
2­
year
college
degree
and
only
basic
instruction
in
hazardous
materials.
At
best,
these
people
can
be
regarded
only
as
trained
technicians.
Again,
in
particular,
the
CHMM
organization
"
certifies"
its
members
based
on
their
payment
of
an
organizational
fee.
There
is
no
level
of
testing
for
technical
or
professional
competence,
such
as
is
required
for
persons
seeking
licensure
as
engineers
or
geologists.
In
closure,
I
concur
with
the
All
Appropriate
Inquiry
rule
proposed
by
the
Agency.
Absent
adoption
of
this
rule,
it
is
my
opinion
that
any
nitwit
who
wants
to
call
himself/
herself
an
"
environmental
professional"
can
do
so,
with
the
ability
to
make
decisions
regarding
some
of
the
most
dangerous
materials
known
to
mankind.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.
123
Commenter
Organization
Name:
OSBGE
Comment
Number:
0291
Excerpt
Number:
1
Excerpt
Text:
OSBGE's
opinion
is
that
the
EPA's
proposed
document
in
its
current
form
will
impede
the
State
of
Oregon's
effectiveness
in
public
protection
from1
unqualified
and
nonregistered
environmental
practitioners
who
offer
or
provide
the
public
practice
of
geology.
As
the
draft
is
written,
OSBGE
is
concerned
about
encouraging
non­
registered
individuals
to
undertake
geologic
services,
under
the
guise
of
"
environmental
services'",
in
violation
of
Oregon
State
law.

Certain
types
of
professional
services
covered
by
the
proposed
EPA
definition
of
"
environmental
professional"
may
fall;
within
the
public
practice
of
geology
in
Oregon,
including
areas
described
within
the
"
aill
appropriate
inquiry"
language.
For
example,
interpretation
of
geologic
conditions
used
to
determine
1)
geologic
or
hydrogeologic
conditions
of
the
subject
property
and
surrounding
environment
or
2)
potential
migration
pathways
(
e.
g.,
groundwater
flow
direction)
constitute
the
public
practice
of
geology
in
Oregon.
The
practice
of
geology
is
regulated
in
Oregon
and
in
most
other
States.
OSBGE's
statutory
authority
makes
it
clear
that
only
Oregon
Registered
Geologists
can
provide
these
types
of
services.

During
the
past
six
years,
several
environmental
reports
(
prepared
by
unregistered
"
environmental
professionals")
that
were
referred
to
OSBGE
for
compliance
review
contained
the
public
practice
of
geology,
as
defined
by
Oregon
law.
These
reports
can
typically
include
contaminant
fate
and
transport
assessments,
and
the
interpretation
of
groundwater
conditions,
gradient
calculations,
flow
directions,
etc.,
all
of
which
constitute
the
practice
of
geology
in
Oregon.
The
public
practice
of
geology
by
unregistered
individuals
is
an
actionable
offense.

OSBGE's
mission
is
to
protect
the
public.
Unregistered
'"
environmental
professionals"
are
not
obligated
to
follow
a
regulated
"
Code
of
Conduct",
nor
have
they
demonstrated
the
education
and
minimal
competence
necessary
to
provide
the
public
practice
of
geology
(
including
hydrogeology).
No
regulatory
body
charged
with
public
protection
exists
to
test
whether
an
environmental
professional's
work
meets
an
acceptable
standard.
To
encourage
unregistered
individuals
to
provide
geologic
services
to
the
public
breaches
a
legislative
mandate
established
in
1977
in
Oregon.

Response:
The
rule
should
not
have
the
consequences
described
by
the
commenter.
The
final
rule
does
not
preempt
state
certifications
for
geologists
or
other
professionals.
The
final
rule
at
section
312.10(
b)(
4)
states,
"
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).
124
Commenter
Organization
Name:
DE
Board
of
Geologists
Comment
Number:
0337
Excerpt
Number:
1
Excerpt
Text:
The
Delaware
Board
strongly
agrees'
with
Section
312.10(
b)(
4)
of
the
proposed
rule
stating:
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
registration
laws
to
the
activities
to
be
undertaken
as
part
of
the
inquiry
identified
in
Section
312.21(
b).
Delaware
requires
licensing
of
geologic
and
engineering
professionals,
and
it
would
be
inappropriate
and
possibly
illegal
for
EPA
defined
"
environmental
professionals"
to
perform
geologic
or
engineering
characterizations
involved
in
remediation
of
Brownfield
sites.

The
Delaware
Board
is
opposed
to
any
clauses
included
in
the
proposed
rulemaking
that
involve
grandfathering
and
references
to
unlicensed
individuals
that
are
somehow
qualified
by
the
federal
government
[
EPA
or
others]
to
perform
this
type
of
work
and
suggest
that
these
references
and
clauses
be
removed
entirely.
The
Board
feels
that
professional
licensure/
registration
is
best
left
to
the
states
to
regulate,
not
the
federal
government.

Response:
Please
see
responses
to
comment
numbers
0209
(
excerpt
1)
and
0291
(
excerpt
1).

Commenter
Organization
Name:
Foth
&
Van
Dyke
Comment
Number:
0339
Excerpt
Number:
1
Excerpt
Text:
"
Environmental
Professional"
is
broadly
defined
to
include
certain
persons
who
are
not
licensed
professional
engineers
or
professional
geologists.
In
fact,
the
definition
includes
persons
who
do
not
even
have
a
baccalaureate
or
higher
degree
in
engineering
or
in
any
environmentally­
related
field.
We
believe
that
allowing
such
inquiries
be
done
by
nonlicensed
persons
places
consumers
of
these
services
in
serious
jeopardy­
of
losing
what
would
otherwise
be
a
critical
defense
to
potential
liability
for
CERCLA­
imposed
response
costs.
Without
some
licensing
requirement,
these
consumers
are­
left
to
fend
for
themselves
when
contracting
for
these
services.
On
the
other
hand,
requiring
these
environmental
inquiries
be
done
by
licensed
professional
engineers
or
geologists
provides
these
consumers
the
opportunity
to,
at
the
very
least,
check
the
persons
credentials
with
the
independent
licensing
entities,
typically
state
or
tribal
licensing.
boards,
prior
to
the
services
being
provided.

Accordingly,
we
recommend
that
the
proposed
definition
of
"
Environmental
125
Professional"
be
limited
to
individuals
who
have
demonstrated
that
they
possess
the
necessary
education,
examination,
and
experience
and
who
hold
a
professional
engineers
or
professional
geologists
license
and/
or
registration
from
a
state,
tribe,
or
U.
S.
territory
and
have
the
equivalent
of
three
years
of
full­
time
relevant
experience.

Response:
Please
see
response
to
comment
0209,
excerpt
1.

Commenter
Organization
Name:
ASBOG
Comment
Number:
0364
Excerpt
Number:
1
Excerpt
Text:
The
ASBOG
®
Executive
Committee
and
its
Member
Boards
strongly
concurs
in
Section
312.10(
b)(
4)
of
the
proposed
rule
which
states:

"
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,
(
emphasis
added),
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
Section
312.21
(
b)."

All
29
of
the
ASBOG
®
Member
Board
States
require
licensure/
registration
for
the
professional
practice
of
geology.
It
is
inappropriate,
and
in
some
states
possibly
illegal,
for
the
proposed
"
environmental
professionals"
to
engage
in
the
practice
of
geology
in
the
environmental
characterization
and
remediation
of
Brownfield
sites.

Response:
Please
see
response
to
comment
numbers
0072
(
excerpt
2)
and
0291
(
excerpt
1).

Commenter
Organization
Name:
Hambley,
Douglas
Comment
Number:
0394
Excerpt
Number:
1
Excerpt
Text:
While
I
am
sure
that
many
comments
have
been
received
that
recommend
that
the
proposed
definition
of
Environmental
Professional
(
EP)
be
watered
down,
I
would
submit
that
there
are
very
good
reasons
for
the
definition
as
it
stands.

First
and
foremost,
Phase
II
of
an
Environmental
Site
Assessment
(
ESA)
consists
of
a
site
investigation
concerning
soil
and
groundwater.
Such
soil
invstigations
are
performed
by
environmental
geologists
and
in
states
where
there
is
licensing
or
certifications
of
geologists,
such
work
is
defined
as
requiring
supervision
by
a
licensed
geologist.

Second,
Phase
I
of
an
ESA
includes
a
site
visit
where
the
primary
focus
is
to
identify
126
spills,
stained
soils,
stressed
vegetation,
and
chemical
usage.
This
part
of
the
work
should
be
performed
by
an
engineer
or
geologist.
(
Although
identification
of
stressed
vegetation,
which
would
require
a
biologist,
was
included
in
the
above
list,
stressed
vegetation
is
probably
the
least
frequently
encountered
indicator
of
environmental
problems.

The
most
compelling
reason
for
the
preference
that
the
Environmental
Professional
should
be
a
licensed
Professional
Engineer
(
PE)
or
Professional
Geologist
(
PG)
is
the
fact
that
by
virtue
of
the
licensing,
a
PE
or
PG
can
be
held
legally
responsible
for
the
validity
of
their
work.
Moreover,
protection
of
the
public
is
the
raison
d'etre
for
the
licensing.
Such
legal
responsibility
is
not
provided
with
other
certifications.

Finally,
there
are
unfiortunately
already
too
many
persons
performing
Phase­
I
ESAs
who
have
neither
the
training
nor
the
expertise
to
perform
them
correctly.
Their
attraction
is
primarily
that
they
are
generally
inexpensive.
Unfoirtunately,
however,
such
ESAs
are
also
quite
often
incomplete.
Indeed,
I
have
myself
done
ESAs
that
were
required
as
follow­
ups
because
the
initial
submission
(
by
someone
else)
was
found
to
be
inadequate.
Diluting
the
qualifications
for
the
EP
would
send
a
strong
signal
that
slipshod
and
unprofessional
work
is
not
only
tolerated
but
encouraged.
If
the
Agency
is
serious
about
requiring
"
All
Appropriate
Inquiry"
it
should
also
be
adamant
that
the
work
be
performed
by
properly
qualified
practitioners.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.

Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
1
Excerpt
Text:
We
agree
with
the
proposed
AAI
requirements
for
qualifying
practitioners
especially
with
the
requirement
that
a
qualified
EP
perform
the
site
visit.
ESA's
are
frequently
complicated
enough
that
oversight
by
a
professional
engineer
or
geologist
is
crucial.
This
is
particularly
true
because
preliminary
interpretations
of
contaminant
fate
and
transport
are
made
as
part
of
any
effort
to
evaluate
risk
from
offsite
sources.
Furthermore,
only
someone
trained
and
experienced
in
environmental
science,
hydrogeology,
or
engineering
is
qualified
to
make
specific
recommendations
for
remedial
investigations
and
remedial
options,
in
the
event
that
contamination
is
strongly
suspected.

Response:
Please
see
response
to
comment
number
0353,
excerpt
4.

Commenter
Organization
Name:
Ruhmann,
Karl
Comment
Number:
PM­
0127­
0002
Excerpt
Number:
1
127
Excerpt
Text:
In
saying
that,
the
assessments
that
we
see
that
were
performed
by
nonengineers,
or
nonengineering
firms,
those
companies
are
generally
no
longer
in
business.
That
would
be
my
first
comment.

My
second
comment
was
that
when
the
ESA
was
performed
by
a
registered
engineer,
we
rarely
take
issue
with
their
findings,
and
I
can
say
that
for
several
of
the
companies
that
are
in
this
room.

In
summary,
excellence
and
due
diligence
is
dependent
upon
the
person
performing
the
assessment.
This
is
beneficial
to
the
buyer
of
the
property,
the
regulator,
and
the
brownfields
community,
as
a
whole.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.
128
2.1.1.2
The
Proposed
Minimum
Requirements
Will
Improve
Quality
of
ESAs
Commenter
Organization
Name:
Virginia
Geotechnical
Services
Comment
Number:
0034
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
I
am
in
support
of
the
proposed
rule
for
Standards
and
Practices
for
AAI.
The
qualifications
section,
in
particular,
has
long
been
needed
and
will
vastly
improve
the
quality
of
environmental
assessments
by
setting
an
appropriate
level
of
qualifications
and
experience
for
persons
holding
themselves
out
as
an
"
environmental
professional."
Because
ASTM
has
proven
it
cannot
address
the
qualifications
issue,
EPA
is
the
only
appropriate
venue
that
can
set
this
standard.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Cooper,
Ivan
A
Comment
Number:
0047
Excerpt
Number:
1
Excerpt
Text:
First,
ASTM
E­
1527
in
fact
does
not
specify
any
qualifications
necessary
to
be
an
environmental
professional.
Therefore
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

The
definition
of
environmental
professional
proposed
in
the
rule
would
prevent
from
leading
AAI
studies
those
who
do
not
have
the
appropriate
education,
training,
and
experience.
I
understand
that
my
registrations,
certifications,
and
direct
experience
will
allow
me
to
serve
as
an
environmental
professional
under
the
rule,
and
it
will
allow
me
to
train
others
and
share
my
experience
and
knowledge
to
supply
the
next
generation
of
environmental
professionals
to
perform
these
services.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Vellone,
Daniel
A
Comment
Number:
0048
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.1.1
­
The
license
requirement
should
not
be
revised
to
allow
individuals
other
than
professional
engineers
and
professional
geologists
to
qualify
as
EPs
129
Excerpt
Text:
In
my
experience,
unless
environmental
inquiries
are
handled
properly,
many
types
of
properties,
including
Brownfield
sites,
can
pose
a
potential
threat
to
public
welfare,
safety,
and
health.
Therefore,
the
person
(
or
firm)
who
is
designated
as
being
in
"
Responsible
Charge"
of
the
design
and/
or
leading
the
AAI
study
should
have
a
minimum
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
It
is
encouraging
to
see
that
the
EPA
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process,
allowing
otherwise
"
unqualified"
persons
acting
in
the
public
interest.
As
an
"
environmental
professional"
having
education,
experience,
and
professional
licensure,
I
believe
it
is
only
those
holding
licensure
as
Professional
Engineers
or
Professional
Geologists
who
can
be
held
accountable
to
the
highest
standards
of
professional
conduct
and
place
the
public
welfare
above
all
other
considerations.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Malivuk,
John
Comment
Number:
0060
Excerpt
Number:
1
Excerpt
Text:
ASTM
E1527
does
not
specify
qualifications
and
I
am
glad
that
the
Agency
has
established
minimum
education
and
experience
requirements
for
professionals
engaged
with
AAI
studies.
This
important
feature
is
currently
missing
from
the
process.
The
definition
of
environmental
professional
proposed
in
the
rule
would
prevent
those
without
appropriate
education,
training
and
experience
from
performing
such
services.
Next,
my
part
of
Ohio
has
environmentally
impacted
sites
and
the
broader
scope
of
the
environmental
inquiry
provides
users
and
the
public
with
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
and
thusly
promote
productive
use
of
properties
consistent
with
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act.
In
other
words,
it
appears
that
the
proposed
Rule
balances
the
concerns
of
the
many
involved
parties
without
compromising
the
environment
now
or
in
the
future.
Third,
the
proposed
rule
significantly
improves
the
existing
environmental
inquiry
process
for
property
transactions.
This
permits
environmental
professionals
to
continue
to
provide
the
expertise
that
those
performing
ASTM
E1527
studies.
Not
having
to
learn
a
new
process
will
ensure
cost
effectiveness
in
consultant
services.
Last,
the
rule
will
help
the
best
performers
obtain
the
most
work,
by
raising
the
standards
for
those
performing
AAI
services.
It
should
raise
the
level
of
awareness
of
those
who
procure
such
services
that
qualifications
matter
Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
130
Commenter
Organization
Name:
Thacker,
Barry
K
Comment
Number:
0071
Excerpt
Number:
2
Excerpt
Text:
As
an
owner
of
a
firm
that
performs
environmental
site
assessments,
I
understand
that
brownfield
engagements
and
environmental
site
assessment
can
pose
latent
risks.
The
only
way
to
deal
effectively
with
those
risks
is
by
relying
on
professionals
who
have
the
education,
training,
experience,
and
good
judgment
needed
to
know
what
to
do
when
the
situation
they
encounter
is
not
identical
to
one
in
a
"
cook­
book"
guide.
For
that
reason,
I
am
pleased
that
the
proposed
rule
establishes
realistic
near­
and
long­
term
definitions
of
"
environmental
professional'
1
and
encourages
the
application
of
the
professional
judgment
needed
to
help
consider
and
safeguard
the
public
trust.
I
think
that
the
change
"
raises
the
bar"
such
that
better
assessments
will
be
performed
in
a
cost­
effective
manner.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Cheeks,
J.
Richard
Comment
Number:
0083
Excerpt
Number:
1
Excerpt
Text:
First,
ASTM
E­
1527
in
fact
does
not
specify
any
qualifications
necessary
to
be
an
environmental
professional.
Therefore
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.
This
important
feature
is
missing
from
the
current
process.

The
definition
of
environmental
professional
proposed
in
the
rule
would
prevent
from
leading
AAI
studies
those
who
do
not
have
the
appropriate
education,
training,
and
experience.
I
understand
that,
while
my
certifications
will
not
allow
me
to
serve
as
an
environmental
professional
under
the
rule,
they
will
allow
me
to
continue
to
work
under
qualified
environmental
professionals
in
my
firm
and
continue
to
increase
my
knowledge.
In
fact,
the
proposed
regulations
create
an
incentive
for
excellence,
which
I
appreciate.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
McHugh,
Dan
Comment
Number:
0085
Excerpt
Number:
1
Excerpt
Text:
I
am
particularly
pleased
with
these
items
in
the
rule:
Defined
Environmental
131
Professional
(
EP):
Persons
with
less
than
the
required
experience,
as
stated
clearly
in
the
rule,
should
not
be
evaluating
site
data
to
determine
due
diligence
implications.
Each
day,
I
utilize
experience
I
have
gained
over
10
years
to
decide
if
additional
inquiry
is
warranted.
A
clear
definition
of
EP
has
been
a
glaring
weakness
in
the
industry.
The
science
background
is
controversial
but
reasonable.
Understanding
chemical
properties,
degradation,
movement,
and
impacts
are
aspects
of
ESAs
that
are
not
easily
understood
by
people
with
non­
science
backgrounds.
Someone
who
has
a
business
background
may
not
understand
chemical
properties
and
may
not
fully
understand
which
facilities
should
be
a
concern
Data
Gap
Identification:
This
will
provide
clear
information
as
to
the
completeness
of
each
report
and
improve
the
quality
of
the
reports.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Fulk,
Kevin
J
Comment
Number:
0086
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
I
support
the
proposed
rule
because
it
establishes
minimum
qualifications
for
an
environmental
professional
and
will
provide
a
better
approach
for
developers
/
landowners
to
handle
redevelopment
on
brownfield
sites
in
our
nations
urban
areas
than
what
currently
exists.

The
minimum
qualifications
for
an
environmental
professional
will
help
the
industry
apply
a
higher
level
of
qualifications/
experience
to
solve
environmental
issues
for
real
estate
development
and
redevelopment.
This
EPA
legislation
should
also
give
developers
a
higher
level
of
confidence
to
tackle
brownfields
sites,
which
will
significantly
aid
in
"
protecting
human
health
and
the
environmental"
for
generations
to
come.

I
urge
the
Agency
to
adopt
the
rule
as
proposed.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Simon,
Richard
M
Comment
Number:
0089
Excerpt
Number:
2
Excerpt
Text:
As
an
owner
and
President
of
a
firm
that
performs
environmental
site
assessments,
I
know
better
than
most
that
even
the
apparently
simplest
brownfield
engagement
or
environmental
site
assessment
can
pose
latent
risks.
The
only
way
to
deal
effectively
with
those
risks
is
by
relying
on
professionals
who
have
the
education,
training,
experience,
and
good
judgment
needed
to
know
what
to
do
when
the
situation
they
encounter
is
not
132
identical
to
one
described
in
a
guide
of
some
kind,
or
contemplated
in
a
standard
of
one
kind
or
another.
For
that
reason,
I
am
pleased
that
the
proposed
rule
establishes
realistic
near­
and
long­
term
definitions
of
'
environmental
professional,'
allows
for
and
even
encourages
the
application
of
the
professional
judgment
needed
to
help
consider
and
safeguard
the
public
trust,
and,
in
general,
'
raises
the
bar'
such
that
better
assessments
will
be
performed,
and
for
not
that
much
more
money.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Belaire,
Kent
Comment
Number:
0267
Excerpt
Number:
1
Excerpt
Text:
The
proposed
AAI
rule
significantly
improves
the
existing
environmental
inquiry
process
for
real
estate
transactions.
Many
types
of
properties,
including
Brownfield
sites
can
pose
a
danger
to
public
health,
safety,
and
welfare.
The
professional
responsible
for
designing
and
overseeing
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment
to
effectively
deal
with
those
potential
risks.
The
AAI
rule
takes
into
account
both
academic
background
and
experience
in
the
definition
of
the
environmental
professional
(
EP).
The
AAI
rule
requires
specifics
regarding
the
educational
requirements
as
well
as
the
amount
and
type
of
training
that
is
required
to
conduct
an
assessment.
The
AAI
rule
also
requires
the
EP
to
remain
current
in
his
field
through
continuing
education
or
training
and
to
be
able
to
demonstrate
such
effort.
This
provides
for
an
objective
standard
to
measure
the
credentials
of
a
prospective
environmental
assessment
provider.
This
is
a
much
better
than
the
ASTM
definition
of
EP
which
only
refers
to
"
training
and
experience"
and
makes
no
mention
of
education.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Billington,
Edward
Comment
Number:
0284
Excerpt
Number:
1
Excerpt
Text:
I
am
particularly
supportive
of
establishing
minimum
licensing,
education,
and
experience
requirements
for
Environmental
Professionals
and
in
encouraging
a
performance­
based
approach,
rather
than
a
prescriptive
approach.
The
public
is
best
served
by
having
minimum
criteria
for
those
who
conduct
environmental
investigations
for
brownfields.
The
risks
to
the
public
in
the
resulting
use
of
the
properties
can
be
high
and
need
to
be
mitigated
by
having
trained
and
experienced
professionals
in
a
direct
role.
The
use
of
licensed
engineers
and
geologists,
who
have
already
met
a
minimum
standard
for
this
type
of
work,
is
the
logical
criteria
to
use.
133
Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0286
Excerpt
Number:
1
Excerpt
Text:
I
understand
that
this
docket
sets
minimum
qualification
criteria
for
environmental
professionals.
I
strongly
endorse
the
creation
of
qualification
criteria
as
described
in
this
docket.
I
feel
that
the
public
is
owed
the
assurance
that
the
individual
conducting
the
work
has
a
proven
track
record
of
professional
judgment,
which
is
critical
in
the
proper
evaluation
of
the
risk
associated
with
a
particular
site.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Willis,
George
Comment
Number:
0288
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
like
the
fact
that
it
sets
a
minimum
qualification
and
criteria
level
for
the
professionals
in
the
environmental
practice
area.
It
is
performance
based
and
includes
an
education
component
which
is
not
unlike
the
successful
professional
practices
found
in
the
engineering
industry.
The
use
of
professional
judgement
in
evaluating
site
risk
is
imperative
and
supported
by
the
rule.
If
adopted,
the
All
Appropriate
Inquiry
Rule
should
go
a
long
way
towards
improving
the
quality
of
the
practitioners
in
the
field
and
more
significantly,
actually
protecting
human
health
and
the
environment.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Foppe
Technical
Group
Comment
Number:
0289
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
As
an
environmental
company
that
performs
AAI,
we
would
like
to
add
our
voice
in
support
of
the
proposed
rule.
It
is
imperative
that
the
technical
nature
of
a
Phase
I
be
performed
by
well
trained,
competent
professionals.
The
proposed
rules
elevated
the
requirements
to
a
necessary
level
to
ensure
that
competent
work
is
performed.
134
Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0302
Excerpt
Number:
1
Excerpt
Text:
Please
count
this
as
a
message
in
support
of
the
proposed
AAI
rule.
I
am
an
environmental
professional
and
see
a
broad
range
of
environmental
services
provided.
Not
requiring
professional
credentials
to
provide
these
services
has
been
a
mistake
and
the
public
is
not
served
by
subprofessional
opinions
on
the
environmental
condition
of
sites.
The
public
will
be
better
protected
by
professionals
providing
these
services.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
QORE,
Inc
Comment
Number:
0307
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
I
think
this
is
a
good
and
necessary
standard.
Minimum
qualification
criteria
for
environmental
professionals
must
be
set.
The
public
will
be
provided
with
the
confidence
that
AAI
studies
will
be
protective
of
human
health
and
the
environment
that
does
not
currently
exist
with
the
ASTM
process.
I
am
pleased
to
support
the
AAI
rule.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
QORE
Property
Sciences
Comment
Number:
0308
Excerpt
Number:
1
Excerpt
Text:
Brownfields
often
have
complex
histories
and
potentially
severe
health
and
safety
implications
if
not
managed
professionally.
Only
individuals
that
have
substantial
expertise
in
geology,
hydrology,
chemistry,
engineering
and
risk
assessments
should
be
allowed
to
perform
All
Appropriate
Inquiries.
Personnel
without
this
background
have
no
basis
for
determining
if
a
site
is
appropriate
for
brownfield
development.
In
order
to
keep
the
public's
trust
in
this
critical
decision
making
process,
let's
keep
the
bar
high
on
those
responsible
for
performing
AAI's.
135
Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Lampkin,
Charles
Comment
Number:
0376
Excerpt
Number:
1
Excerpt
Text:
I
have
read
the
proposed
new
regulations
on
CERCLA
and
approve
of
the
changes.
I
currently
serve
on
the
ASTM
E
50
Committee
that
wrote
the
ASTM
1527
Guidelines.
I
particularly
support
the
new
requirements
on
the
Environmental
Professional.
During
the
course
of
my
environmental
practice
I
am
asked
to
update
Phase
Is
that
have
been
prepared
by
others.
I
find
that
when
the
reports
have
been
prepared
by
subprofessionals
there
is
not
much
information
that
I
can
use
in
the
updates.
I
receive
advertisments
from
several
licensing
organizations
that
will
issue
a
license
after
taking
a
24
hour
course.
There
are
very
few
requirements
on
experience
and
education.
I
think
that
by
requiring
a
Registered
Engineer
or
Geologist
to
prepare
the
Phase
Is,
the
quality
of
the
reports
will
improve.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.

Commenter
Organization
Name:
Templeton,
Sharon
Comment
Number:
0407
Excerpt
Number:
2
Excerpt
Text:
Currently
there
are
individuals
and
companies
without
sufficient
experience
and
qualifications
who
are
providing
environmental
due
diligence
studies
for
simple
and
complex
properties.
Unless
these
studies
are
performed
properly,
many
types
of
properties,
including
brownfield
sites,
can
pose
a
real
danger
to
public
health,
safety,
and
welfare.
The
person
who
designs
and
leads
the
AAI
study
must
have
the
requisite
education,
training,
experience,
and
judgment.
For
that
reason,
I
am
glad
to
see
that
the
Agency
has
established
minimum
education
and
experience
qualifications
for
"
environmental
professionals"
involved
with
AAI
studies.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Wike,
Dennis
Comment
Number:
PM­
0127­
0003
Excerpt
Number:
1
Excerpt
Text:
So
one
of
the
things
that
I
see
from
this
standpoint
is
that
the
requirement
to
have
environmental
professionals
have
minimum
qualifications
is
a
very
good
one,
and
I
136
welcome
it.

What
I
have
seen,
I
have
worked
on
the
industry
side,
as
well
as
the
consulting,
and
have
reviewed
thousands
of
Phase
I's.
And
unfortunately,
the
general
mind
public
looks
for
a
piece
of
paper
or
a
report
and
doesn't
know
anything
about
the
quality
of
what
they
have
received.

I'm
very
happy
to
see
the
EPA's
comments
on
the
transaction
screen
and
its
lacking
in
ability
to
protect
from
the
CERCLA
liability.
I
think
these
unqualified
folks
that
do
Phase
I's
are
doing
a
disservice
to
their
clients.

Having
minimum
standards
is
good.
There
might
be
some
consideration
that,
well,
there
will
be
a
lack
of
folks
that
can
do
this
work.
I
don't
think
that's
the
case.
I
think
what
has
happened
is
that
many
of
the
folks
that
can
do
the
work
have
just
decided
not
to
do
the
work,
because
of
the
fact
that
there
are
so
many
people
out
there
that
will
do
it
for
next
to
nothing,
and
the
general
public,
the
client
­­
not
the
sophisticated
client,
but
the
general
client
out
there
doesn't
know
the
difference.

So
from
this
standpoint,
I
do
believe
that
we
are
making
great
improvements,
getting
it
in
the
proposed
standard.
I
think
we're
moving
in
the
right
direction.
I
think
the
EPA
has
done
a
very
good
job.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Commenter
Organization
Name:
Langston,
Jeff
Comment
Number:
PM­
0127­
0006
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
And
I
just
want
to
mention
that
I'm
in
favor
of
the
proposed
rule,
and
for
the
reasons
­
the
favorable
reasons
that
have
been
mentioned
by
others.
I
don't
want
to
restate
those,
but
specifically,
I
do
want
to
comment
on
the
definition
of
the
environmental
professional
that
the
rule
would
require,
and
I
believe
that
that
definition
for
the
environmental
professional
would
result
in
increased
quality
of
the
environment
assessment
and
the
due
diligence
reports.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.
137
2.1.2
Revise
the
License
Requirement
to
Include
Licensed
or
Certified
Professionals
Other
than
Professional
Engineers
and
Professional
Geologists
Commenter
Organization
Name:
Lind,
Peter
A
Comment
Number:
0052
Excerpt
Number:
1
Excerpt
Text:
I
encourage
you
to
allow
qualified
licensed
design
professionals,
not
simply
PE's
and
PG's,
to
be
a
part
of
the
solution.

I
strongly
support
changing
the
proposed
regulation
to
allow
"
licensed
design
professionals"
qualified
for
conducting
AAI's.
Then
add
a
definition
for
"
licensed
design
professional"
as
commonly
written
in
state
statutes.
Recognize
states
are
responsible
for
licensing
professionals,
not
feds.

Response:
The
final
rule
recognizes,
and
includes
within
the
definition
of
environmental
professional,
any
individual
licensed
or
certified
by
a
state
or
tribal
government
to
perform
site
assessments,
provided
the
individual
also
has
three
or
more
years
of
fulltime
relevant
experience.

EPA
notes
that
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
138
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.

Commenter
Organization
Name:
American
Institute
of
Architects
Comment
Number:
0102
Excerpt
Number:
1
Excerpt
Text:
AIA
is
concerned
that
this
restrictive
definition
excludes
architects
and
other
design
professionals
who,
through
their
specialized
training
and
relevant
professional
experience,
have
achieved
the
requisite
skills
and
credentials
to
manage
and
oversee
"
all
appropriate
inquiries."
Architects
and
other
design
professionals
with
specialized
environmental
training
commonly
investigate,
conduct,
supervise
and
manage
environmental
site
assessments,
building
renovations
and
site
remediations
involving
asbestos,
lead
paint,
radon,
and
other
toxic
and
environmentally
harmful
materials;
as
well
as
underground
storage
tank
removals
and
the
recycling
of
ozone
depleting
refrigerants.
Architects
with
specialized
environmental
training
are
commonly
acknowledged
by
the
other
professionals
in
the
field
to
have
the
technical
education,
skills
and
environmental
sensitivity
to
undertake
these
activities
and
deliver
superior
results.
Should
the
definition
currently
proposed
become
final,
these
practitioners
will
no
longer
be
able
to
practice
their
trade.
Building
owners,
their
representatives,
lawyers,
real
estate
managers
and
financial
institutions
will
no
longer
be
able
to
retain
them
to
do
the
work
they
have
studied
for
and
practiced
effectively
to
date.

AIA
requests
that
the
definition
of
"
environmental
professional"
be
revised
to
include
individuals
with
relevant
experience
and
holding
a
baccalaureate
or
higher
degree
in
architecture
or
a
similar
design­
related
field,
and
individuals
with
relevant
experience
and
holding
a
current
license
in
architecture
or
a
design­
related
field.

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
specifically
recognize
architects
as
environmental
professionals.
The
Agency
does
not
support
a
conclusion
that
all
architects
meet
the
qualifications
necessary
to
oversee
and
supervise
all
appropriate
inquiries
investigations
based
merely
upon
the
fact
that
an
individual
holds
a
degree
in
architecture
or
practices
as
an
architect.
However,
the
final
rule
includes
in
the
final
definition
of
environmental
professional
experience
and
educational
qualifications
that
many
practicing
architects
may
possess.
In
addition,
the
final
rule
139
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.

Commenter
Organization
Name:
Lind,
Peter
Comment
Number:
0107
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
The
present
definition
for
"
environmental
professional"
in
the
PROPOSED
REGULATION
is
too
restrictive
by
omitting
the
words,
"
licensed
architects"
and
"
architectural
accredited
institutions".
Similar
to
licensed
engineers
and
licensed
geologists,
licensed
architects
are
design
professionals.

To
simply
allow
the
grandfathering
of,
for
example;
a
licensed
"
electrical
engineer"
to
conduct
surface
and
subsurface
investigations
because
the
"
engineer"
is
licensed
and
has
had
three
years
of
AAI
relevant
experience
is
NOT
fair
to
a
licensed
architect
having
similar
AAI
relevant
environmental
experience.
Nor
is
it
appropriate
for
the
client
and
general
public
to
feel
safe
that
a
licensed
geologist
is
absolutely
qualified
to
sign­
off
on
an
environmental
site
assessment
of
a
"
facility"
or
"
building
structure"
on
the
subject
site.
Think
about
it,
a
licensed
architect
having
specialized
environmental
training
may
be
better
qualified
in
ESA
matters
concerning
facility,
function
and
their
processes
that
may,
or
may
not,
have
contaminated
site
surface
or
subsurface,
yet
is
not
expressly
"
qualified"
under
any
of
the
four
proposed
qualifications
by
the
exclusion
of
these
terms,
including
the
grandfather
provisions.

Response:
Please
see
response
to
comment
number
0102,
excerpt
1.

Commenter
Organization
Name:
Lind,
Peter
Comment
Number:
0107
Excerpt
Number:
3
Excerpt
Text:
Therefore,
may
I
recommend
consideration
of
the
following
changes
to
the
312.10
definitions:

1.
Add
"
licensed
architect"
to
section
312.10
(
b)(
2)(
i)
and
(
b)(
4)
2.
Add
"
architectural
accredited
institution"
to
section
312.10
(
b)(
2)(
iii)

Response:
Please
see
response
to
comment
number
0102,
excerpt
1.
140
Commenter
Organization
Name:
Fishman,
Betty
Comment
Number:
0138
Excerpt
Number:
2
Excerpt
Text:
The
credential
I
work
with­
the
Certified
Hazardous
Materials
Manager
®
(
CHMM
®
)
­
is
a
professional
credential
that
is
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
and
adheres
to
the
stringent
ASTM
E1929­
98
Standard
Practice
for
Assessment
of
Certification
Programs
for
Environmental
Professionals.
CHMMs
are
bound
by
their
Code
of
Ethics
to
practice
only
within
their
areas
of
expertise.
Furthermore,
all
CHMMs
are
required
to
remain
current
by
qualifying
for
recertification
every
five
years.

A
Master­
Level
CHMM
must
have
an
appropriate
accredited
baccalaureate
or
higher
degree
and
at
least
seven
(
7)
years
of
relevant
experience,
which
exceeds
the
experience
level
in
this
proposal.
We
would
be
pleased
to
see
EPA
recognize
the
Master­
Level
CHMM
as
a
means
of
qualifying
for
the
Environmental
Professional,
along
with
the
licenses
and
registrations
already
included
in
the
proposed
rules.
If
it
cannot
be
adopted
at
this
late
date
into
the
rule
itself,
we
would
be
pleased
to
see
reference
to
the
Master­
Level
CHMM
as
a
qualifying
credential
in
EPA
guidance
materials.

Response:
The
definition
of
an
environmental
professional
in
the
final
rule
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
§
312.20(
e)
and
(
f)
of
the
final
rule.

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
141
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

The
final
rule
does
not
recognize
or
reference
any
private
party
professional
certification
standards.
Such
an
approach
would
require
that
EPA
review
the
certification
requirements
of
individual
organizations
to
determine
whether
or
not
each
organization's
certification
requirements
meet
or
exceed
the
regulatory
qualifications
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
particular
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Peyton,
J.
Comment
Number:
0216
Excerpt
Number:
3
Other
Sections:
NEW
­
2.1.3
­
Revise
the
rule
to
exclude
the
license
requirement
from
the
definition
of
the
EP
Excerpt
Text:
Also,
please
consider
accepting
the
Certified
Environmental
Professional,
Qualified
Environmental
Professional,
Registered
Environmental
Manager,
and
Certified
Industrial
Hygienist
certifications
as
equivalent
to
engineering
and
geology
certifications.
These
4
certifications
are
recognized
by
the
Council
of
Science
and
Engineering
Certification
Board,
which
means
that
EPA
can
rely
on
the
rigor
of
these
certifications
without
having
to
monitor
them.
It
is
simply
unfair
to
recognize
some
politically
connected
certifications
but
not
others
that
are
even
more
appropriate.
Or,
do
not
recognize
any
certifications,
including
the
engineering
and
geology
ones.

Response:
Please
see
response
to
comment
number
0138,
excerpt
2.
142
Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
4
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
It
is
important
that
professional
designations
for
conducting
inquiries
be
placed
on
the
same
level.
Engineers
should
not
be
given
special
status
in
this
industry
as
that
designation
does
automatically
bring
with
it
the
needed
skill
set
to
protect
the
public
health.
Instead,
place
all
professional
designations
on
the
same
level
and
make
level
of
experience
the
deciding
factor.

Response:
Please
see
response
to
comment
number
0138,
excerpt
2.

Commenter
Organization
Name:
Kamiya,
Mark
Comment
Number:
0248
Excerpt
Number:
1
Excerpt
Text:
I
would
also
suggest
that
the
rule
(
312.10)
include
state
recognized
license
or
certification
in
the
definition
which
is
consistent
with
the
PE
and
PG
designations.
This
additional
language
would
clarify
what
the
states
current
responsibilities
are
and
allow
the
states
to
license/
certify
environmental
professionals
to
their
appropriate
standards.

Response:
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
2
Excerpt
Text:
143
I
strongly
recommend
that
non­
governmental,
professional
organization
certifications,
such
as
the
Certified
Hazardous
Materials
Manager
(
CHMM)
credential,
be
recognized
as
qualification
equivalent
to
the
PE
or
PG
credential.
As
a
basis
for
relevant
knowledge,
it
is
hard
to
imagine
that
a
CHMM
who
has
demonstrated
capabilities
in
the
specific
areas
of
practice
pertinent
to
AAI
by
experience,
study
and
test
is
any
less
qualified
than
a
registered
professional
mechanical
or
electrical
engineer,
each
of
which
is
automatically
qualified
(
with
three
years
experience)
to
perform
AAI
assessments.
The
CHMM
certification
is
based
on
testing,
a
strict
Code
of
Ethics,
and
the
loss
of
certification
if
that
Code
is
violated.
The
effectiveness,
and
acceptance
by
the
EPA,
of
non­
governmental,
professional
organization
standards
is
demonstrated
in
the
designation
of
ASTM
standards
as
interim
criteria
for
AAI.

Response:
Please
see
response
to
comment
number
0138,
excerpt
2.

Commenter
Organization
Name:
AIPG
Comment
Number:
0253
Excerpt
Number:
2
Excerpt
Text:
The
profession
of
geology
is
not
regulated
in
every
state,
tribe,
or
U.
S.
territory.
Unlike
some
professions,
many
states
do
not
have
a
registration
or
licensure
program
for
Professional
Geologists.
Therefore,
the
rule
as
it
is
written
will
place
the
burden
of
certification
upon
the
individual
professional
geologist
to
apply
for
the
Environmental
Professional
credential.
The
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application.
To
alleviate
some
of
the
burden
on
the
profession
and
the
agency,
and
to
move
toward
a
nation­
wide
level
of
coherence
of
professional
capabilities,
AIPG
recommends
that
the
rule
be
modified
to
include
the
AEPG
credential
Certified
Professional
Geologist
(
CPG)
in
the
definition
of
Environmental
Professional.

In
1963,
AIPG
established
baseline
qualifications
for
granting
the
Certified
Professional
Geologist
(
CPG)
title.
The
CPG
title
attests
to
the
public
that
those
geologists
who
hold
this
title
have
undergone
peer
review,
and
have
been
deemed
competent
practitioners
who
are
worthy
of
public
trust.
The
high
standards
for
obtaining
the
title
have
earned
it
wide
recognition.
The
primary
purpose
of
AIPG,
to
strengthen
geological
science
as
a
profession,
remains
undiminished.
AIPG
is
organized
into
thirty­
six
Sections
nationwide
and
has
certified
almost
11,000
CPGs
since
its
founding.
The
CPG
credential
is
recognized
not
only
in
the
U.
S.
but
also
internationally;
the
CPG
credential
is
recognized
by
the
European
Federation
of
Geologists,
by
the
Canadian
Securities
Administrators
under
National
Instruments
43­
101
and
51­
101,
and
by
the
Australian
Stock
Exchange
as
a
"
Recognized
Overseas
Professional
Organization."

By
including
the
CPG
credential
in
the
definition
of
Environmental
Professional,
the
U.
S.
EPA
can
be
assured
of
the
consistent
application
of
high
standards
in
those
states
that
do
not
have
registration
or
licensure
programs,
while
allowing
for
the
mobility
of
highly
credentialed
professionals
across
state
boundaries.
Approximately
40%
of
ADPG
144
membership
is
in
states
without
programs,
and
approximately
75%
of
AIPG
membership
identifies
itself
as
engaged
in
environmental
practice.
EPA
can
minimize
duplicative
effort
required
to
process
the
credentials
of
individual
applicants
(
i.
e.
the
professional
geologist
that
does
not
live
in
a
state
with
a
registration
or
licensure
program)
by
listing
the
CPG
credential
in
the
rule
itself.
In
this
way,
much
of
the
EPA
administrative
burden
is
obviated.

AIPG
does
not
review
and
modify
its
certification
qualifications
on
a
frequent
or
periodic
basis.
Since
its
inception
more
than
40
years
ago,
AIPG
has
maintained
a
high
standard
for
the
CPG
title.
The
education
and
experience
requirements
for
AIPG
certification
meet
or
exceed
those
of
all
of
the
state
registration
and
licensure
programs.
These
include:
a
baccalaureate
or
higher;
minimum
of
36
semester
hours
in
geological
sciences;
a
minimum
of
8
years
experience
with
a
bachelor
degree,
7
years
with
a
master
degree,
5
years
with
a
doctorate;
and
adherence
to
the
AIPG
Code
of
Ethics.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
145
meet
the
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
case
where
a
state
or
tribal
government
does
not
have
a
professional
licensing
or
certification
program,
the
final
rule
provides
other
options
for
qualifying
as
an
environmental
professional
(
i.
e.,
experience
and
educational
requirements).
EPA
does
not
have
an
environmental
professional
licensing
program
and
has
no
plans
to
establish
such
a
program.
The
commenter
is
incorrect
in
asserting
that
in
those
cases
where
a
state
does
not
have
a
licensing
program
for
professional
geologies,
"
the
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application."

Also,
in
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
AIPG
Comment
Number:
0253
Excerpt
Number:
4
146
Excerpt
Text:
Adding
also
to
the
importance
of
this
issue
is
the
proliferation
of
automated,
Internetbased
platforms
for
creating
data
summaries
and
maps
of
the
subject
area.
These
give
the
erroneous
impression
of
thoroughness
to
the
point
of
even
showing
groundwater
flow
direction
and
the
relative
elevation
of
surrounding
sites
that
have
the
potential
to
impact
the
subject
site.
These
presentations
can
be
very
misleading
and,
if
used
by
an
unqualified
EP,
may
lead
to
serious
oversights
with
significant
consequences.
The
judgment
of
a
qualified
geologist,
taking
advantage
of
all
available
geologic
and
hydrogeologic
information
sources,
is
necessary
for
this
purpose.

Response:
Please
see
response
to
comment
number
0209,
excerpt
1.

Commenter
Organization
Name:
Wallace,
Ronald
Comment
Number:
0254
Excerpt
Number:
1
Excerpt
Text:
My
comments
pertain
to
40
CFR
Part
312
Subpart
B
­
Definitions
and
References.

Professional
Engineers
(
P.
E.)
and
Professional
Geologists
(
P.
G.)
with
three
years
of
relevant,
full­
time
experience
are
currently
deemed
to
meet
the
definition
of
Environmental
Professional.
The
public
can
inquire
through
the
individual
state
boards
to
verify
that
a
particular
individual
is
properly
licensed.

For
unlicensed
individuals
who
qualify
for
Environmental
Professional
based
on
five
years
of
relevant
experience,
and
for
individuals
who
will
qualify
under
the
"
grandfather"
clause
based
on
ten
years
of
relevant
experience,
there
is
no
proposed
system
for
the
public
to
verify
these
credentials.

I
strongly
recommend
that
the
Rule
be
written
to
specifically
recognize
and
accept
holders
of
the
AIPG
Certified
Professional
Geologist
(
CPG)
designation
as
Environmental
Professionals,
AIPG's
CPG
meets
the
educational
and
exceeds
the
work
experience
of
a
licensed
P.
G.
The
individual
would
still
be
required
to
demonstrate
three
years
of
relevant,
full­
time
experience
under
these
proposed
rules.

Response:
Please
see
response
to
comment
number
0253,
excerpt
2.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
3
Excerpt
Text:
Professional
Certifications
147
The
Negotiated
Rulemaking
Committee
that
developed
the
proposed
regulation
for
conducting
AAIs
is
to
be
commended
for
its
efforts
to
include
a
broad
spectrum
of
the
stakeholders
and
require
that
only
highly
qualified
and
competent
environmental
professionals
be
specified
for
the
performance
of
such
real
property
environmental
assessments.
However,
the
outcome
of
the
effort
failed
to
adequately
address
a
number
of
major
issues
related
to
(
i)
the
specification
of
objective
criteria
and
procedures
for
use
in
bestowing
professional
credentials
on
environmental
professionals,
and
(
ii)
the
established
credentialing
mechanism
that
is
already
in
place
at
the
national
level
that
will
better
protect
the
public's
interest
regarding
the
performance
of
AAI
activities
than
the
proposal
embodied
in
the
subject
docket.
This
letter
addresses
these
issues,
and
points
out
the
specific
strengths
and
weakness
of
the
proposal
with
regard
to
the
definition
of
Environmental
Professional
as
defined
in
§
312.10
(
b)(
1).
It
recommends
that
the
definition
be
made
more
objective
and
directly
tied
to
environmental
professionals
who
will
have
met
national
competency
standards
which
are
compliant
with
ASTM
E1929­
98,
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria.

IPEP
strongly
endorses
the
EPA
concept
of
defining
an
Environmental
Professional,
as
discussed
in
Section
III(
D)
of
the
October
23,
2003
NODA
regarding
the
proposed
Burden
Reduction
Rule,
and
believes
that
the
comments
IPEP
submitted
to
that
proposed
rule
have
equal
merit
with
regard
to
the
subject
proposed
rule.
In
particular,
IPEP
believes
that
the
following
quote
from
the
preamble
to
the
EPA's
October
23,
2003
proposed
regulations,
is
equally
applicable
to
the
proposed
AAI
regulations,
such
that
EPA
should
"...
establish
an
environmental
professional
performance
standard
based
on
membership
in
a
recognized
professional
organization.
This
would
be
consistent
with
our
principle
of
allowing
the
regulated
community
to
meet
our
standards
at
the
lowest
possible
cost.
The
challenge
we
faced
in
developing
a
performance
standard
was
determining
which
professional
organizations
are
legitimate.
Commenters
helped
by
offering
the
suggestion
that
we
recognize
only
the
organizations
which
meet
the
criteria
for
assessing
certification
programs
for
environmental
professionals
established
by
the
American
Society
for
Testing
and
Materials
(
ASTM).
ASTM
is
a
nonprofit
organization
that
provides
a
forum
for
the
development
and
publication
of
voluntary,
consensus
standards
for
materials,
products,
systems,
and
services.
The
advantage
of
an
ASTM
standard
is
that
it
is
developed
by
individuals
with
a
diversity
of
backgrounds,
expertise,
and
knowledge.
Through
a
consensus
approach,
the
standards
that
are
developed
reflect
the
needs
of
all
the
stakeholders."

"
ASTM
E1929­
98,
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria
assesses
the
credibility
of
certification
programs
for
environmental
professionals.
Under
these
standards,
the
certifying
body
must
have
a
program
to
evaluate
individual
competence
for
certification
that
is
objective
and
based
on
the
knowledge,
skills,
and
abilities
needed
to
function
in
the
specialty
area.
Applicants
must
document
their
level
of
education,
supply
reference
148
materials,
sign
and
abide
by
a
code
of
ethics
established
by
the
certifying
body,
and
pass
a
comprehensive
examination.
The
ASTM
standard
also
requires
that
environmental
certification
programs
be
accredited
by
an
independent
entity ."

"
Therefore,
we
are
considering
allowing
only
professionals
certified
by
organizations
meeting
the
ASTM
standard
to
conduct
a
limited
number
of
the
certifications.
Under
this
standard,
anyone
who
certifies
the
operation
of
facilities
must
(
a)
be
licensed
to
practice
in
the
state
where
the
facility
is
located
or
recognized
by
a
certification
program
that
is
compliant
with
ASTM
E1929­
98
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria,
and
(
b)
have
the
knowledge
and
experience
to
undertake
the
tasks
required
for
the
certification."

IPEP
endorses
incorporation
into
the
AAI
regulations
such
a
performance
standard
for
Environmental
Professional
Certifications.
Further,
as
discussed
in
more
detail
below,
based
on
concerns
raised
by
others
in
their
comments
on
EPA's
original
Burden
Reduction
Rule
proposal,
IPEP
suggests
that
condition
(
b)
be
modified
to
read:
(
b)
have
the
knowledge,
experience
and,
where
required
by
local
or
state
regulation,
appropriate
license
or
registration
under
applicable
law
or
regulation,
to
undertake
the
tasks
required
for
the
certification.

As
licenses
for
registered
professional
engineers
and
registered
professional
geologists
issued
by
the
individual
states
and
territories
do
not
specify
the
practice
discipline
of
the
individual
registrant,
it
is
critical
that
there
be
linkage
between
the
holding
of
a
license
and
the
qualifications
and
experience
required
to
conduct
AAI
to
qualify
for
certain
landowner
liability
protections
under
CERCLA.
It
should
also
be
recognized
that
granting
of
licensure
by
a
state
or
territory
or
certification
by
an
accredited
certification
program
only
assures
that
a
practicing
environmental
professional
has
met
the
minimum
criteria
necessary
for
such
licensure
or
certification,
and
does
not
provide
assurance
that
the
individual
is
highly
competent
or
expert
in
the
conduct
of
AAI
at
CERCLA
or
Brownfields
sites
or
other
properties
previously
developed
and
used
for
commercial
or
industrial
purposes.

Response:
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Therefore,
there
is
no
need
to
reference
or
depend
upon
a
standard
that
assesses
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.
149
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
7
Excerpt
Text:
Appendix
A
The
Institute
of
Professional
Environmental
Practice
and
The
Qualified
Environmental
Professional
and
Environmental
Professional
Intern
Credentials
The
Institute
of
Professional
Environmental
Practice
(
IPEP),
which
is
headquartered
in
Pittsburgh,
PA,
is
an
independent,
not­
for­
profit
certifying
organization
for
the
Qualified
Environmental
Professional
(
QEP)
and
the
Environmental
Professional
Intern
(
EPI)
certifications.
More
information
on
these
two
credentials
is
included
below.
Additional
information
can
be
found
at
www.
ipep.
org.
IPEP's
mission
is
to
improve
the
practice
and
educational
standards
of
environmental
professionals
and
to
administer
the
QEP
and
EPI
application,
examination,
and
certification
process.
The
Institute
is
governed
by
a
Board
of
Trustees
and
conducts
business
in
accordance
with
the
Board's
adopted
Bylaws
and
Policies
&
Procedures
for
Certification.
150
Individuals
certified
by
the
Institute
agreed
to
abide
by
the
IPEP
Code
of
Ethics,
which
requires
certificants
to:

(
1)
Hold
paramount
protection
of
human
health
and
natural
environment;

(
2)
Comply
with
applicable
statutes,
regulations,
and
standards;

(
3)
Undertake
and
accept
responsibility
for
professional
assignments
only
when
qualified;

(
4)
Provide
professional
opinion
based
on
adequate
knowledge
derived
from
good
science,
thoughtful
deliberation,
and
honest
conviction;

(
5)
Act
as
faithful
agent,
maintain
confidentiality
and
avoid
conflict
of
interest
but,
where
potential
arises,
disclose
circumstances
expediently
and
fully
(
6)
Avoid
professional
practice
while
under
the
influence
of
thought­
impairing
substance;

(
7)
Maintain
competence
through
continuing
professional
development;

(
8)
Act
with
fairness,
courtesy
and
good
faith;
give
credit
where
due;
and
accept/
give
constructive,
honest,
and
fair
professional
comment;

(
9)
Communicate
clearly
the
potential
consequences
if
professional
decisions
or
judgments
are
overruled
or
disregarded;
and
(
10)
Exercise
honesty,
objectivity,
and
diligence.

The
Qualified
Environmental
Professional
(
QEP
®
)
credential
administered
by
IPEP
is
one
of
only
a
select
handful
of
certification
programs
in
the
environmental
profession
that
comply
with
ASTM
E1929­
98
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria
[
Footnote:
Other
CESB­
accredited
certification
programs
that
meet
the
ASTM
standard:
Certified
Environmental
Professional
(
CEP)
by
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP),
Diplomate
Environmental
Engineer
(
DEE)
by
the
American
Academy
of
Environmental
Engineers
(
AAEE),
Certified
Industrial
Hygienist
(
CIH)
by
the
American
Board
of
Industrial
Hygiene
(
ABIH),
Certified
Safety
Professional
(
CSP)
by
the
Board
of
Certified
Safety
Professionals
(
BCSP),
Certified
Professional
Environmental
Auditor
(
CPEA)
by
the
Board
of
Environmental,
Health
&
Safety
Auditor
Certifications
(
BEAC),
and
Certified
Hazardous
Materials
Manager
(
CHMM)
by
the
Academy
of
Certified
Hazardous
Materials
Management
(
ACHMM).].
The
QEP
®
is
the
only
such
credential
that
requires
a
certificant
to
comprehend
the
multi­
media
relationships
among
air,
land,
and
water
and
is
multi­
discipline
with
regard
to
the
qualifications
and
experience
of
its
members.
There
are
more
than
1000
QEPs
and
100
EPIs
in
22
countries
around
the
world.
151
Response:
In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
7
Excerpt
Text:
R&
W
further
recommends
the
addition
of
certifications
from
the
following
organizations
as
sufficient
to
meet
the
"
Environmental
Professional"
standard:
a
"
Qualified
Environmental
Professional"
by
the
Institute
of
Professional
Environmental
Practice
and
persons
on
the
National
Registry
of
Environmental
Professionals.
These
organizations
are
both
nationally
recognized.
Requirements
for
certification
include
a
baccalaureate
or
higher
degree
related
to
science
and
engineering.
In
addition,
an
applicant
for
certification
under
these
organizations
must
possess
4
to
15
years
of
experience.
These
requirements
for
certification
are
entirely
consistent
with
the
qualifications
that
the
Proposed
Rules,
§
312.10(
2),
currently
finds
sufficient
to
meet
the
"
Environmental
Professional"
definition.
152
Response:
Please
see
response
to
comment
number
0266,
excerpt
7.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
8
Excerpt
Text:
4)
FAA
believes
that
it
is
unreasonable
for
EPA
to
accept
certifications
by
states
and
tribes
to
meet
the
definition
of
an
EP,
but
not
to
accept
the
certifications
of
private
organizations
in
the
environmental
business.
Stating
that
EPA
lacks
the
resources
to
review
the
requirements
for
private
organizations'
certifications
is
not
an
acceptable
reason
for
excluding
private
organization­
certified
individuals
from
the
definition
of
an
EP.

Response:
In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
because
the
definition
of
an
environmental
professional
in
the
final
rule
provides
a
clear
set
of
qualifications,
based
upon
educational
and
experience
levels.
Individual
private
certification
organizations
can
simply
compare
their
organization's
certification
requirements
with
the
qualifications
including
in
the
final
rule
and
determine
whether
or
not
their
certification
programs
are
equivalent
or
more
stringent
than
the
definition
in
the
final
rule.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
1
Excerpt
Text:
The
proposed
auditor
qualifications
should
not
single
out
a
particular
professional
license
for
recognition
without
creating
a
mechanism
for
recognizing
all
potential
professional
licensures
potentially
providing
adequate
qualifications,
such
as
a
highly
reputable
accreditation
body.

The
three
organizations
applaud
EPA's
recognition
of
the
importance
of
establishing
threshold
qualifications
for
auditors
as
a
means
of
ensuring
a
high
level
of
professional
ability
and
the
overall
quality
of
the
work
product.
All
three
organizations
have
been
153
dedicated
to
promoting
the
increased
"
professionalization"
of
auditors
and
have
established
rigorous
professional
certification
programs
specifically
in
the
field
of
auditing
and
site
assessment.

EPA's
proposal
explicitly
recognizes
the
"
Professional
Engineer"
or
"
Professional
Geologist"
license
or
registration
in
satisfaction
of
one
of
the
educational
requirements.
However,
both
licenses
cover
extremely
diverse
educational
training,
which
can
be
primarily
focused
on
areas
completely
unrelated
to
the
disciplines
that
are
essential
to
an
understanding
of
the
issues
involved
in
site
assessment
There
is
no
practical
basis
upon
which
to
recognize
these
two
particular
licensing
programs
over
others
that
are
more
specifically
focused
on
the
skill
sets
required
for
site
assessment
and
auditing.

The
organizations
joining
in
these
comments
recognize
that
EPA
is
justifiably
reluctant
to
embark
on
a
path
of
having
to
evaluate
the
myriad
of
state
and
private
licensure
programs
against
the
professional
criteria
specified
in
the
rule.
However,
EPA
can
define
certain
foundation
criteria
in
the
proposed
regulation
and
recognize
one
or
more
accreditation
bodies
to
differentiate
between
programs
which
impose
rigorous
educational,
training,
examination
and
experience
requirements
as
a
condition
of
licensure
and
ones
which
are
fly­
by­
night
diploma
or
license
mills.

The
Council
of
Engineering
&
Scientific
Specialty
Boards
("
CESB")
is
an
example
of
such
an
accreditation
organization.
It
is
the
recognized
accreditation
body
for
engineering
and
scientific
certification
programs.
It
is
an
independent,
voluntary
membership
body
for
organizations
that
recognize,
through
specialty
certifications,
the
expertise
of
individuals
practicing
in
engineering
and
related
fields.
It
was
formed
in
the
early
1990'
s
as
the
result
of
a
National
Conference
on
Engineering
Specialty
Certification,
and
one
of
its
missions
is
to
inform
employers,
specifiers,
public
officials,
the
public
and
engineering
and
related
practitioners
about
technical
credentialing.
It
has
accredited
professional
engineering
programs
such
as
the
American
Academy
of
Environmental
Engineers,
the
Council
on
Certification
of
Health,
Environmental
and
Safety
Technologists,
the
Academy
of
Board
Certified
Environmental
Professionals
(
Certified
Environmental
Professional),
American
Board
of
Industrial
Hygiene
(
Certified
Industrial
Hygienist)
and
the
Board
of
Environmental
Health
&
Safety
Auditor
Certifications
(
Certified
Professional
Environmental
Auditor)
to
name
just
a
few.
Its
member
boards,
associate
and
affiliate
organizations
represent
a
full
spectrum
of
engineering,
scientific
or
engineering­
related
organizations,
which
have
developed
professional
certifications.
Its
web
site
contains
detailed
information
on
the
extensive
requirements
that
certification
programs
must
meet
in
order
to
be
accredited
by
the
CESB.
For
more
information
please
visit
the
website:
www.
cesb.
org.

The
accreditation
process
enables
the
legitimacy
of
private
certification
organizations
to
be
recognized
and
approved,
widening
the
pool
of
auditors
capable
of
leading
the
audits.
Although
the
licensing
for
a
professional
engineer
is
rigorous,
it
should
in
no
way
be
construed
as
providing
the
necessary
skills
and
knowledge
appropriate
to
identifying
and
quantifying
environmental
site
concerns.
Indeed,
without
additional
training,
many
professional
engineers
would
lack
an
understanding
of
the
true
site
conditions
necessary
154
for
an
appropriate
assessment
of
the
environmental
liabilities.
The
PE
license
becomes
no
more
valuable
to
the
process
of
assessing
the
environmental
conditions
of
a
property
than
any
other
degree
when
appropriate
training
and
knowledge
are
lacking.
This
is
a
further
reason
to
require
accreditation
specific
to
the
site
assessment
skill
set
rather
than
a
blanket
statutory
recognition
of
any
one
type
of
educational
degree.

EPA's
preamble
states
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
a
an
environmental
professional
for
purposes
of
this
regulation."
[
69
Fed.
Reg.
52555]
However,
requiring
confirmation
by
a
widely
recognized
scientific
accreditation
body
helps
ensure
to
the
public
that
an
independent
body
has
confirmed
the
self­
declaration
of
qualification.

Response:
The
basis
for
recognizing
the
P.
E.
and
P.
G.
licensing
programs
within
the
final
definition
of
environmental
professional
is
that
they
are
state
professional
licensing
programs.
In
the
final
rule,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
because
the
definition
of
an
environmental
professional
in
the
final
rule
provides
a
clear
set
of
qualifications,
based
upon
educational
and
experience
levels.
Individual
private
certification
organizations
can
simply
compare
their
organization's
certification
requirements
with
the
qualifications
including
in
the
final
rule
and
determine
whether
or
not
their
certification
programs
are
equivalent
or
more
stringent
than
the
definition
in
the
final
rule.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
155
Commenter
Organization
Name:
Anonymous
Comment
Number:
0371
Excerpt
Number:
3
Excerpt
Text:
While
there
are
a
number
of
certifications
available
for
environmental
professionals
to
obtain,
the
Certified
Hazardous
Materials
Manager
(
CHMM)
is
the
most
established
and
recognized
in
the
field.
In
order
to
obtain
the
CHMM
credential,
one
must
meet
most
of
the
requirements
already
listed
in
the
proposed
rule
for
education
and
experience
and
unlike
the
CPG,
an
examination
must
be
passed
to
evaluate
competence
in
the
field.
CHMMs
are
also
required
to
remain
current
in
their
field
through
continuing
education
or
they
loose
the
credential,
unlike
both
the
CPG
and
PE.

The
EPA
should
take
note
of
the
fact
that
individuals
seeking
to
demonstrate
competency
in
their
field
take
the
time
and
effort
to
obtain
valid
certifications
and
maintain
these
certifications.
As
there
is
not
state
or
national
certification
body
for
environmental
professionals,
private
organizations
have
had
to
step
in.
I
think
the
EPA
should
reevaluate
their
position
of
not
relying
on
private
organizations
or
they
should
seek
to
develop
such
certification
at
the
national
level.
The
Occupational
Safety
and
Health
Administration
has
referenced
certifications
from
private
organizations
in
their
regulations,
specifically
the
CIH
in
asbestos
regulations.
Therefore,
if
one
governmental
agency
can
recognize
a
private
organization's
certification,
it
would
seem
logical
that
another
could
as
well.

Response:
In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.
156
Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Walsh,
Gregory
Comment
Number:
0378
Excerpt
Number:
1
Excerpt
Text:
Problem:

As
the
Senior
Environmental
Protection
Specialist
for
TRIDENT
Refit
Facility,
Kings
Bay
GA,
I
have
sought
out
and
secured
Professional
Certification
as
desired
by
the
Department
of
the
Navy.
My
job
classification
as
designated
by
the
Office
of
Personnel
Management
(
OPM)
designates
my
series
and
grade
as
professional.
TRIDENT
Refit
Facility
is
the
U.
S.
Navy's
east
coast
home
for
the
TRIDENT
Nuclear
Powered
Submarine
Fleet.
I
was
the
first
at
this
Command
and
the
first
in
Southeast
Georgia
to
achieve
this
certification.
In
obtaining
the
CHMM
Certification,
The
information
I
provide
to
the
Command
carries
the
same
weight
as
other
professional's
in
this
community,
such
as:
The
Certified
Industrial
Hygiene
and
the
Certified
Safety
Specialist.
Relegating
my
CHMM
designation
to
a
statue
of
less
than
Professional
would
negate
the
value
of
my
5
years
of
fulltime
experience,
15
years
of
(
daily)
part­
time
experience
and
hundreds
of
hours
of
education
to
wasted
time.
I
received
my
B.
B.
A.
from
the
University
of
North
Florida
in
1989.
In
1994
Marques,
Who
Who's
in
Science
and
Engineering
,
included
my
work,
in
the
optical
field,
in
their
publication,
my
educational
background
was
not
a
limiting
factor
even
tough
I
was
only
one
of
fifty
listed
world
wide
with
a
Business
Degree.
Background:

1)
Per
the
classification
manual
from
the
OPM
my
series
and
grade
place
me
in
a
Professional
classification
as
directed
by
Title
5
of
the
Code
of
Federal
Regulations.

2)
The
United
States
Navy
and
the
Air
Force
have
both
acknowledged
the
CHMM
as
a
Professional
Program.
Doing
more
with
less
requires
personal
to
have
a
broader
base
of
knowledge
and
experience
to
be
effective.

3)
In
October
1998,
The
Department
of
The
Air
Force,
Headquarters
Air
Force
Personnel
Center
reviewed
the
CHMM
program
and
added
this
to
the
"
approved"
list
of
certifications
for
the
Air
Force
Civil
Engineering
Career
Program.
As
noted
in
the
text
of
the
letter
"
Individuals
will
be
able
to
include
this
certification
in
resumes
used
to
select
candidates
for
referrals
to
vacancies
based
on
best
knowledge,
skills
and
ability."

4)
In
July
2002
The
Certified
Hazardous
Material
Manager,
CHMM,
was
added
157
­
OPNAVINST
5100.23F,
Chapter
6,
"
Certification
of
individuals
in
their
­
professional
specialty
is
highly
desirable
and
fully
supported
by
the
U.
S.
Navy."
­
OPNAVINST
5100.23F,
Chapter
6,
Acknowledge
and
supports
the
need
for
­
Professionals
to
maintain
Continuing
Education
Units
(
CEU).

Ramifications:

If
the
CHMM
is
not
classed
as
a
Professional:
a)
Organizational
structure
could
change
and
require
Organizations
to
employ
a
Professional
Engineer
(
P.
E.)
to
head­
up
an
Engineering
Department
currently
best
management
practices
are
to
reduce
the
overhead
and
place
Environmental,
Safety
and
Occupational
Health
in
one
operational
code.
b)
As
a
productive
member
of
society,
my
current
transferable
skills
would
no
longer
be
applicable
and
would
require
retraining.
c)
A
change
of
tax
status
to
non­
exempt
from
exempt.

Proposed
Amendment
to
the
Definition
(
312.10
EP)

If
a
person
has
the
minimum
educational
level
(
1)
an
accredited
baccalaureate
degree
or
higher
(
2)
and
has
demonstrated
a
working
knowledge
in
the
Environmental
field
through
third
party
testing,
such
as
achieving
the
CHMM
credential
and
has
5
or
more
cumulative
years
working
in
the
field
then
the
person
has
demonstrated
the
Knowledge,
Skills
and
Ability
to
be
considered
an
Environmental
Professional.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
158
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
because
the
definition
of
an
environmental
professional
in
the
final
rule
provides
a
clear
set
of
qualifications,
based
upon
educational
and
experience
levels.
Individual
private
certification
organizations
can
simply
compare
their
organization's
certification
requirements
with
the
qualifications
including
in
the
final
rule
and
determine
whether
or
not
their
certification
programs
are
equivalent
or
more
stringent
than
the
definition
in
the
final
rule.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Walsh,
Gregory
Comment
Number:
0378
Excerpt
Number:
2
Excerpt
Text:
1)
Would
a
Code
of
Ethics
apply
to
the
CHMM
if
it
is
down
graded?
2)
If
the
EPA
takes
a
myopic
viewpoint
how
would
this
effect
other
Professionals?
Such
as:
Physician
Assistances,
LPN
RN,
Mid­
wives,
Para­
legal,
etc?

Response:
The
final
rule
has
no
effect
upon
the
CHMM's
certification
program.

Commenter
Organization
Name:
Wood,
George
Comment
Number:
0379
Excerpt
Number:
1
Excerpt
Text:
The
new
Federal
"
All
Appropriate
Inquiries"
standard
requires
"
an
inquiry
by
an
environmental
professional."
"
Environmental
Professional"
has
a
lengthy
definition
under
the
proposed
rule.
An
Environmental
Professional
is
generally
defined
as
"[
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
to
the
surface
or
subsurface
of
a
property."
Specifically,
an
"
Environmental
Professional"
includes
persons
that
possess
a
professional
engineering,
professional
geologist
or
state/
federal
environmental
assessment
licenses
and
three
years
159
of
experience,
a
Bachelor's
degree
in
engineering,
environmental
science
or
earth
science
and
5
years
of
experience,
or
a
Bachelor's
degree
in
a
non­
engineering,
science
or
environmental
discipline
and
10
years
of
experience.

This
definition
excludes
many
existing
"
Nationally
Recognized"
Environmental
Professionals
such
as
the
"
Certified
Environmental
Professional"
designation
offered
by
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP)
www.
abcep.
org.

In
addition
to
those
noted
in
the
proposed
rule,
the
definition
of
"
Environmental
Professional"
should
include
those
individuals
who
have
qualified
as
"
Certified
Environmental
Professional"
under
the
auspices
of
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP).
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.
Those
individuals
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.

Minimum
requirements
for
CEP
certification
include:

The
applicant
must
possess
a
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and/
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.
Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.

A
Master's
Degree
may
be
substituted
for
one
year
of
the
nine
years
of
professional
experience
and
a
Doctorate
may
be
substituted
for
two
of
the
nine
years
of
professional
experience.
However,
no
such
substitution
will
apply
to
the
requirement
for
the
five
years
in
responsible
charge
and/
or
responsible
supervision.
Degrees
claimed
must
be
from
fully
accredited
college
or
university
(
certified
transcripts
are
required).
The
written
portion
of
the
examination
consists
of
mandatory
and
elective
essay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.

The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
NAEP
and
adopted
by
the
Academy;

These
certification
requirements
exceed
those
proposed
by
the
U.
S.
Environmental
Protection
Agency
(
USEPA)
and
therefore
should
be
judged
as
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
designation.

We
understand
the
USEPA's
concern
about
not
having
the
resources
or
staff
to
verify
third­
party
certification
programs
but
the
certification
of
such
programs
is
not
part
of
the
160
USEPA's
mission.
There
are
already
third­
party
certification
organizations
like
the
International
Standards
Organization
(
ISO)
that
independently
review
and
evaluate
the
CEP
program.
The
ABCEP's
CEP
Program
is
third­
party
certified
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
www.
cesb.
org.

CESB
is
an
independent,
voluntary
membership
body
created
for
its
member
organizations
who
recognize,
through
specialty
certification,
the
expertise
of
individuals
practicing
in
engineering
and
related
fields.
Its
creation
on
April
24,
1990
was
the
culmination
of
organizing
work
by
volunteers
from
among
the
130
attendees
(
23
organizations
represented)
who
participated
in
the
April
1988
National
Conference
on
Engineering
Specialty
Certification.

CESB,
as
an
accrediting
body,
provides:
basic
criteria
and
guidelines
for
the
establishment
and
operation
of
specialty
certification
programs
for
engineers,
technologists,
technicians,
and
related
scientific
it
serves
as
a
recognizing
body
for
organizations
that
certify
individuals
it
represents
its
members
in
communications
and,
when
appropriate,
in
negotiations
with
public
and
private
agencies,
groups,
and
individuals
with
respect
to
matters
of
common
interest
and
it
informs
employers,
specifiers,
public
officials,
the
public,
and
engineering
and
related
practitioners
of
the
benefits
of
specialty
certification.

We
ask
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
Certified
Environmental
Professional.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
161
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.

Commenter
Organization
Name:
McGucken,
Richard
Comment
Number:
0382
Excerpt
Number:
1
Excerpt
Text:
The
new
Federal
All
Appropriate
Inquiries
standard
requires
"
an
inquiry
by
an
environmental
professional."
Under
the
proposed
rule,
there
is
a
lengthy
definition
of
"
environmental
professional."
In
addition
to
those
persons
noted
in
the
proposed
rule,
I
suggest
that
those
persons
who
have
qualified
as
Certified
Environmental
Professional
under
the
auspices
of
ABCEP
should
be
included.
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
their
peers.
Those
persons
who
have
been
tested
and
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.

The
qualifications
for
a
CEP
exceed
the
requirements
proposed
by
the
U.
S.
Environmental
Protection
Agency
and
thus
should
be
judged
as
being
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
designation.

I
join
my
colleagues
in
the
NAEP
and
ABCEP
in
requesting
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
certified
Environmental
Professional
(
CEP).
162
Response:
Please
see
response
to
comment
number
0371,
excerpt
3.

Commenter
Organization
Name:
Burke,
Richard
Comment
Number:
0388
Excerpt
Number:
1
Excerpt
Text:
I
am
the
former
chair
of
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP)
www.
abcep.
org.
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.
Those
individuals
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.
I
have
the
following
comments
on
the
proposed
"
Standards
and
Practices
for
All
Appropriate
Inquiries"
(
69
Fed.
Reg.
52542,
August
26,
2004).

This
definition
excludes
many
existing
"
Nationally
Recognized"
Environmental
Professionals
such
as
the
"
Certified
Environmental
Professional"
designation
offered
by
ABCEP.
The
new
Federal
"
All
Appropriate
Inquiries"
standard
requires
"
an
inquiry
by
an
environmental
professional."
"
The
definition
of
"
Environmental
Professional"
should
include
those
individuals
who
have
qualified
as
"
Certified
Environmental
Professional"
under
the
auspices
of
ABCEP.

ABCEP's
certification
requirements
exceed
those
proposed
by
the
U.
S.
Environmental
Protection
Agency
(
USEPA)
and
therefore
should
be
judged
as
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
designation.

ABCEP's
CEP
Program
is
third­
party
certified
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
www.
cesb.
org.
CESB
is
an
independent,
voluntary
membership
body
created
for
its
member
organizations
who
recognize,
through
specialty
certification,
the
expertise
of
individuals
practicing
in
engineering
and
related
fields.

I
request
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
Certified
Environmental
Professional.

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
exclude
existing
nationally
recognized
environmental
professionals
such
as
the
"
Certified
Environmental
Professional"
designation
offered
by
ABCEP.
As
the
commenter
points
out,
the
ABCEP's
certification
requirements
exceed
the
environmental
professional
qualifications
in
the
final
rule.
As
long
as
that
remains
the
case,
any
person
receiving
certification
from
ABCEP
as
a
"
Certified
Environmental
Professional"
will
meet
the
definition
of
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries
investigation.
163
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.

Commenter
Organization
Name:
Cohen,
Irving
Comment
Number:
0391
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
164
However,
I
feel
that
the
definition
is
excluding
an
important
sector
of
the
environmental
practice
community
and
places
heavy
reliance
on
recognition
on
professional
licensure
that
may
not
actually
be
relevant
to
environmental
disciplines.

The
mere
fact
that
a
person
is
a
licensed
professional
engineer
does
not
necessarily
indicate
professional
competence
in
the
field
of
environmental
practice;
your
proposed
certification
does
not
preclude
that
potential.
I
do
not
question
the
ethics
of
a
PE
in
not
attempting
to
accept
any
responsibility
that
he
is
not
professionally
competent
to
undertake,
however
your
definition
allows
a
de
facto
acceptance
of
a
PE
as
an
"
environmental
professional".
I
wish
to
point
out
to
you
that
there
are
certifications,
such
as
the
ABCEP
certification
of
"
Certified
Environmental
Professional
(
CEP)
that
clearly
addresses
the
knowledge
base
requirement
of
such
an
individual.
Moreover,
our
certification
program
is
accredited
by
the
same
accreditation
body
for
a
variety
of
PE
subspecialties,
the
Council
of
Engineering
&
Scientific
Specialty
Boards
(
CESB).

I
therefore
request
that
you
consider
my
comments
as
well
as
my
support
of
the
comments
of
the
National
Association
of
Environmental
Professionals
(
NAEP)
as
well
as
my
colleagues
in
ABCEP
requesting
the
word
changes
to
include
"
Certified
Environmental
Professionals
(
CEP)"
to
your
definition
of
an
"
Environmental
Professional".

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
exclude
individuals
with
private
party
certifications,
if
the
certification
programs
have
requirements
that
meet
or
exceed
the
qualifications
including
in
the
final
definition
of
environmental
professional.
The
final
rule
recognizes
state
and
tribal
professional
certification
and
licensing
programs,
but
requires
that
in
addition
to
being
a
P.
E.
or
P.
G.
(
or
having
another
state­
or
tribal­
issued
certification)
the
individual
have
three
or
more
years
of
relevant
full­
time
experience
to
qualify
as
an
environmental
professional.
In
addition,
the
definition
of
an
environmental
professional
in
the
final
rule
provides
minimum
educational
and
experience
qualifications
for
additional
individuals
who
qualify
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.
EPA
believes
that
the
qualifications
included
in
the
definition
of
environmental
professional
provide
a
good
balance
of
educational
and
professional
experience
requirements.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
165
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

Commenter
Organization
Name:
Lessig,
Dennis
Comment
Number:
0392
Excerpt
Number:
1
Excerpt
Text:
This
definition
excludes
the
existing
nationally
recognized
environmental
professional
certification
the
"
Certified
Environmental
Professional"
conferred
by
the
Academy
of
Board
Certified
Environmental
Professionals(
ABCEP:
www.
abcep.
org),
whose
certification
program
is
accredited
by
the
"
Council
of
Engineering
and
Scientific
Specialty
Boards".
ABCEP's
CEP
is
conferred
on
those
individuals
applying
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
and
only
after
a
stringent
review
by
a
seven
members
committee
assigned
from
the
Certification
Review
Board
(
CRB).
The
CRB
is
composed
of
accomplished
CEPs
under
a
Director
appointed
by
the
ABCEP
Board
of
Trustees.

Minimum
requirements
for
the
CEP
designation
include:

The
applicant
must
possess
a
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and/
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.

Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.
166
A
Master's
Degree
may
be
substituted
for
one
year
of
the
nine
years
of
professional
experience
and
a
Doctorate
may
be
substituted
for
two
of
the
nine
years
of
professional
experience.
However,
no
such
substitution
will
apply
to
the
requirement
for
the
five
years
in
responsible
charge
and/
or
responsible
supervision.
Degrees
claimed
must
be
from
fully
accredited
college
or
university
(
certified
transcripts
are
required).
The
written
portion
of
the
examination
consists
of
mandatory
and
elective
essay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.

The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
the
National
Association
of
Environmental
Professionals
(
NAEP)
and
adopted
by
the
Academy.

Having
worked
with
Federal
environmental
regulations
over
my
34­
year
environmental
career,
I
recognize
that
sometimes
definitions
are
rule
specific,
in
other
words,
the
definition
is
only
applicable
and
appropriate
under
the
rule
in
which
it
is
defined.
It
is
my
understanding
that
this
is
the
case
herein.
However,
because
the
definition
of
"
Certified
Environmental
Professional"
exists
by
virtue
of
the
ABCEP
CEP
program,
the
fact
that
the
requirements
for
certification
as
CEP
by
ABCEP
exceed
those
proposed
by
the
U.
S.
Environmental
Protection
Agency
(
USEPA),
and
to
avoid
confusion
between
the
two
designations,
the
CEP
should
be
judged
as
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
working
under
this
proposed
standard.

During
the
majority
of
my
34­
year
environmental
career
because
of
the
all
encompassing
definition
of
the
word
"
Environmental",
I
have
sought
out
and
worked
toward
the
achievement
of
an
environmental
certification
credential
that
truly
covered
the
environmental
profession,
the
environmental
professional,
and
which
possession
of
provided
acceptance
of
my
expertise
and
knowledge
by
others
working
in
the
field,
particularly
my
peers.
For
the
reasons
stated
herein,
I
ask
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
"
Certified
Environmental
Professional".

Response:
Please
see
response
to
comment
number
0388,
excerpt
1.

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
1
Excerpt
Text:
­­
Environmental
Professional
­
if
the
proposed
rule
could
be
used
to
conduct
inquiries
that
will
include
structures,
the
definition
should
be
expanded
to
include
individuals
with
certifications/
licenses
to
perform
lead­
based
paint,
asbestos
containing
materials,
and
radon
gas
related
activities
(
i.
e.
surveys
and
sampling).
Under
the
proposed
definition,
expertise
and
training
in
these
areas
is
not
taken
into
account.
Assessments
of
multifamily
residential
properties
in
particular
require
expertise
and
experience
with
lead­
based
paint,
asbestos­
containing
materials,
and
radon
gas
related
activities.
167
Response:
Although
expertise
and
training
in
performing
testing
and
removal
activities
related
to
lead­
based
paint,
asbestos
containing
materials
and
radon
gas
contamination
may
be
useful
for
inspecting
and
cleaning
up
structures
on
contaminated
properties,
these
skills
alone
are
not
sufficient
to
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
overseeing
all
appropriate
inquiries
investigations.

In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Andrews,
Douglas
Comment
Number:
0399
Excerpt
Number:
1
Excerpt
Text:
(
2)(
i)
I
strongly
recommend
that
non­
governmental,
professional
organization
168
certifications,
such
as
the
Certified
Hazardous
Materials
Manager
(
CHMM)
credential,
be
recognized
as
qualification
equivalent
to
the
PE
or
PG
credential.
As
a
basis
for
relevant
knowledge,
it
is
hard
to
imagine
that
a
CHMM
who
has
demonstrated
capabilities
in
the
specific
areas
of
practice
pertinent
to
AAI
by
experience,
study
and
test
is
any
less
qualified
than
a
registered
professional
mechanical
or
electrical
engineer,
each
of
which
is
automatically
qualified
(
with
three
years
experience)
to
perform
AAI
assessments.
The
CHMM
certification
is
based
on
testing,
a
strict
Code
of
Ethics,
and
the
loss
of
certification
if
that
Code
is
violated.
The
effectiveness,
and
acceptance
by
the
EPA,
of
non­
governmental,
professional
organization
standards
is
demonstrated
in
the
designation
of
ASTM
standards
as
interim
criteria
for
AAI.

Response:
The
basis
for
recognizing
the
P.
E.
and
P.
G.
licensing
programs
within
the
final
definition
of
environmental
professional
is
that
they
are
state
professional
licensing
programs.
In
the
final
rule,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
because
the
definition
of
an
environmental
professional
in
the
final
rule
provides
a
clear
set
of
qualifications,
based
upon
educational
and
experience
levels.
Individual
private
certification
organizations
can
simply
compare
their
organization's
certification
requirements
with
the
qualifications
including
in
the
final
rule
and
determine
whether
or
not
their
certification
programs
are
equivalent
or
more
stringent
than
the
definition
in
the
final
rule.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
169
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.4
­
Revise
educational
requirements
to
allow
individuals
with
Baccalaureate
or
higher
degrees
in
areas
other
than
engineering,
environmental
science,
and
earth
science
and
five
or
more
years
of
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
As
background,
all
CHMMs
must
pass
a
rigorous
exam
administered
by
the
Institute
of
Hazardous
Waste
Management,
ACHMM's
third­
party
accrediting
organization,
and
demonstrate
an
understanding
of
the
basic
principles
involved
in
technologies
pertaining
to
hazardous
materials
management,
knowledge
of
the
sciences,
including
chemistry,
radiology,
physical
sciences,
geology/
hydrology,
toxicology
and
engineering,
knowledge
of
the
regulations,
such
as
TSCA,
RCRA,
CERCLA,
OSHA,
DOT
and
EPA,
that
govern
environmental
and
hazardous
materials
management,
and
competence
and
maturity
of
judgment
managing
environmental
program
resources.
To
qualify
at
the
Master
Level,
new
members
must
have
a
degree
in
engineering
or
a
field
related
to
hazardous
materials
management,
seven
(
7)
years
experience
in
the
field
with
responsibility
for
developing,
implementing
and
directing
or
evaluating
hazardous
material
management
programs.
New
Senior
Level
members
must
have
a
degree
in
engineering
or
a
field
related
to
hazardous
materials
management
and
three
(
3)
years
of
experience
in
the
field
of
hazardous
materials
management
or
engineering,
including
related
graduate
studies
at
an
accredited
college
Or
university
which
may
substitute
for
field
experience
on
a
year­
foryear
basis.
Prior
to
2003,
Senior
Level
members
with
eleven
(
11)
years
of
field
experience
could
sit
for
the
exam
without
a
baccalaureate
degree
upon
recommendation
by
other
environmental
professionals.

As
defined
in
the
proposed
All
Appropriate
Inquiry
Rule,
an
"
environmental
professional"
must
meet
the
following
requirements:

­(
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;

40
CFR
§
312.10(
2)(
iii).
In
keeping
with
the
EPA's
goal
that
environmental
professionals
must
'"
possess
significant
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,"
69
Fed.
Reg.
52452,
52552
(
Proposed
Rule,
August
26,
2004),
KCHMM
recommends
that
the
definition
of
environmental
professional
in
40
CFR
§
312.10(
2)(
iii)
be
amended
to
include
professionals
with
degrees
in
physical
or
natural
sciences,
such
as
chemistry
or
biology,
and
certification
from
a
third­
party
accrediting
organization
as
follows:

­
have
a
Baccalaureate
or
a
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
have
a
170
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences,
three
(
3)
years
of
full­
time
relevant
experience,
and
be
an
individual
certified
by
a
professional
organization
with
third
party
accreditation.

In
the
case
of
a
CHMM,
such
an
individual
would
have
the
following
qualifications:
(
1)
a
Baccalaureate
or
higher
degree
in
engineering
or
a
field
related
to
hazardous
materials
management;
(
2)
at
least
three
years
experience
in
the
field
of
managing
hazardous
materials;
(
3)
demonstrated
knowledge
and
understanding
of
the
basic
principles
involved
in
hazardous
materials
management,
including
an
understanding
of
the
regulations
governing
sites,
(
4)
passed
a
rigorous
exam;
and
(
5)
pledged
to
maintain
the
highest
standards
of
integrity
through
the
CHMM
Code
of
Ethics,
a
copy
of
which
is
attached
for
your
convenience.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
171
Excerpt
Number:
5
Excerpt
Text:
KCHMM
believes
that
CHMMs
are
uniquely
qualified
to
conduct
professional
site
assessment
services
at
a
high
standard
of
technical
and
scientific
quality.
On
that
basis,
KCHMM
believes
that
the
proposed
rule,
in
excluding
CHMMs,
will
result
in
increased
transactional
costs
by
creating
uncertainty
about
who
may
conduct
a
site
assessment.
KCHJViM
is
equally
concerned
that
the
proposed
rule
will
result
in
uncertainty
about
how
site
assessments
are
to
be
conducted
because
EPA
is
abandoning
ASTM
1527
as
the
basis
for
site
assessments.
For
these
reasons,
KCHMM
recommends
that
EPA
amend
the
definition
of
"
environmental
professional"
as
proposed
above
and
incorporate
the
ASTM
1527
standard
for
conducting
site
assessments
by
reference.

Response:
Please
see
response
to
comment
number
0388,
excerpt
1.

Today's
rule
incorporates
by
reference
the
updated
(
2005
version)
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Standard.
Prospective
property
owners
may
comply
with
the
final
rule
by
following
the
requirements
of
this
standard.

Commenter
Organization
Name:
Yawn,
Jim
Comment
Number:
0409
Excerpt
Number:
1
Excerpt
Text:
My
comments
on
the
Environmental
Professional
(
EP)
definition
pertain
to
recognizing
and
including
persons
of
the
appropriate
and
relevant
backgrounds
to
conduct
the
relevant
environmental
inquiries.
The
definition
should
be
revised
to
recognize
individuals
with
relevant
skills,
background,
and
experience,
whose
expertise
is
required
to
be
kept
current.
The
definition,
as
written,
excludes
many
"
nationally­
recognized"
accredited
organizations,
including
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP).
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
program,
providing
environmental
professionals
with
qualifications
of
education,
experience,
and
accomplishment
a
nationally­
recognized
credential.
These
individuals
are
judged
by
a
board
of
peers,
and
must
maintain
their
skills
through
formal
training,
and
work
experience.

The
CEP
program
began
in
1979,
in
response
to
the
need
for
interdisciplinary
certification
in
the
environmental
field.
CEPs
include
mid­
level
and
senior
environmental
specialists
in
government,
military,
educators,
consultants,
plant
operators,
and
industry.
The
program
is
fully
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB).
Among
the
advantages
to
customers
using
a
CEP
is
assurance
of
confidence
in
the
professional's
services
addressing
a
broad
array
of
environmental
planning,
analysis,
education
and
documentation.
It
provides
an
assurance
of
engaging
competent
environmental
professionals.

Minimum
requirements
for
CEP
certification
include:
172
The
applicant
must
possess
a
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.
Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.

The
written
portion
of
the
exam
consists
of
mandatory
and
elective
assay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.
The
exam
is
reviewed
independently
by
a
team
of
seven
peer
reviewers.

The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
the
National
Association
of
Environmental
Professionals
(
www.
naep.
org),
and
adopted
by
ABCEP.

The
applicant
must
document
evidence
of
continuing
professional
development,
including
continuing
education,
and
work
experience
on
a
yearly
basis
to
maintain
the
CEP
credential.

The
ABCEP
CEP
program
is
third­
party
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
(
www.
cesb.
org),
meeting
nationally­
recognized
credential
standards.
The
CESB
is
an
independent,
voluntary
membership
organizations
created
for
its
member
organization
who
recognize
through
specialty
certification,
the
expertise
of
individuals
practicing
in
engineering
and
scientific
related
fields.

The
certification
requirements
of
ABCEP
currently
exceed
those
stated
in
the
proposed
rule,
and
should
be
judged
as
at
least
equivalent
to
that
of
a
Professional
Engineer
or
Professional
Geologist.
We
request
that
the
definition
of
"
Environmental
Professional"
be
revised
to
include
persons
recognized
as
Certified
Environmental
Professionals
(
CEP),
and
that
the
definition
be
revised
to
assure
that
persons
with
appropriate
background
and
training
be
specified
in
this
rule
for
the
purpose
of
conducting
All
Appropriate
Inquiries.

Response:
Please
see
response
to
comment
number
0388,
excerpt
1.

Commenter
Organization
Name:
Morse,
Catherine
Comment
Number:
0413
Excerpt
Number:
2
Excerpt
Text:
First,
in
312.10
(
2)(
i),
I
recommend
that
the
rule
be
changed
to
address
the
following:
Non­
governmental,
professional
organization
certifications,
such
as
the
Certified
Hazardous
Materials
Manager
(
CHMM)
credential,
should
be
recognized
as
qualification
173
equivalent
to
the
PE
and
PG
credential.
The
CHMM
certification
is
based
on
testing
and
a
strict
Code
of
Ethics.
If
that
Code
is
violated,
certification
is
lost.

Response:
Please
see
response
to
comment
number
0405,
excerpt
1.

Commenter
Organization
Name:
Froehlich,
R
A
Comment
Number:
0438
Excerpt
Number:
1
Excerpt
Text:
Under
the
definition
of
"
environmental
professional",
I
strongly
recommend
the
addition
of
environmental
professionals
certified
under
ASTM
E1929
98
"
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria"
compliant
programs.
ASTM
E1929
98
certification
programs
represent
the
consensus
of
the
environmental
professional
community
as
to
the
appropriate
qualifications
for
an
environmental
professional,
and
are
supported
by
the
major
environmental
professional
associations
such
as
the
Air
&
Waste
Management
Association,
the
Water
Environment
Federation,
the
Solid
Waste
Association
of
North
America.
These
professional
societies,
representing
the
scientists
and
engineers
active
in
the
environmental
arena,
date
to
the
early
decades
of
the
20th
century
and
are
responsible
for
a
majority
of
the
professional
advances
in
environmental
health.
ASTM
E1928
98
compliant
certification
ensures
that
the
certified
professional
has
the
required
education,
experience,
ethical
background,
and
expertise
to
accurately
perform
environmental
site
assessments.
All
certified
professionals
are
independently
tested
to
ensure
that
they
not
only
meet
the
rigorous
education
(
minimum
bachelor's
degree
in
science
or
engineering)
and
experience
(
minimum
five
years
of
experience
in
the
field)
requirements,
but
that
the
professional
can
demonstrate
expertise
in
environmental
affairs.
Certifications
are
not
granted
in
perpetuity,
as
are
Professional
Engineering
licenses,
but
must
be
maintained
through
continuing
education
requirements.
In
particular,
Qualified
Environmental
Professionals
(
QEPs),
Diplomates
in
Environmental
Engineering
(
DEEs),
and
Certified
Industrial
Hygienists
(
CIHs)
have
the
demonstrated
expertise
to
identify
and
anticipate
the
presence
of
environmental
contamination
on
target
properties
based
on
the
site
history.
These
certifications,
in
particular,
should
be
separately
identified
in
the
final
regulations
as
recognized
"
environmental
professionals."

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
However,
the
Agency
notes
that
any
individual
174
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
1
Excerpt
Text:
I
would
like
to
bring
to
the
attention
of
the
committee
that
there
are
787
colleges
and
universities
that
offer
environmental
science
bachelor
degrees.
This
is
compared
to
72
universities
and
colleges
that
offer
environmental
engineering
degrees.
There
are
33
disciplines­­
33
engineering
disciplines
in
which
people
may
obtain
their
professional
engineer's
license.
And
this
includes­­
I
won't
read
the
whole
list
but
this
includes
agricultural
engineering,
ceramics
engineering,
ocean
engineering,
and
many
more
that
are
not
related
at
all
to
the
environment
but
yet
would
be
qualified
to
sit
for
the
professional
engineer's
license,
then
have
three
years
of
work
experience
in
the
environmental
field,
and
qualify
as
an
environmental
professional.

Likewise,
there
are
18
geology
disciplines
which
include
such
things
as
petroleum
geologists,
hydro­
geologists,
geochemists,
coal
geologists.
Again
people
who­­
these
are
separate
degrees
that
are
available
from
universities.
They
would
be
able
to
take
and
qualify
for
their
professional
geologist
license,
come
up
with
three
years
of
some
kind
of
environmental
experience
and
be
qualified
to
practice
at
a
brownfield
site.

Based
on
these
disciplines,
someone
may
obtain
a
PE
or
PG
license
and
then
be
considered
by
EPA
as
being
qualified
to
conduct
environmental
work
with
only
three
years
of
environmental
experience.
These
are
people,
I'm
saying,
that
have
no
experience.
They
have
had
nothing
in
their
school
year
or
nothing
in
their
work
practice
afterwards
and
they
do
not
have
to
take
any
single
question­­
they
do
not
have
to
pass
any
175
single
question
on
their
PE
license
or
their
PG
license
and
yet
they
can
be
considered
as
qualified.

In
1987,
or
I
should
say
since
1987,
our
organization,
the
National
Registry
of
Environmental
Professionals,
has
credentialed
approximately
15,000
individuals
to
be
environmental
managers
and
environmental
property
assessors.

Our
programs,
depending
on
which
one,
the
REPA,
the
Registered
Environmental
Property
Assessor,
requires
a
bachelor's
degree,
requires
four
years
of
environmental
property
assessment.

An
environmental
manager,
on
the
other
hand,
who
manages
environmental
projects
such
as
brownfields
projects,
requires
five
years
of
environmental
practice
plus
their
bachelor's
degree.

The
Resolution
Trust
Corporation
with
its
responsibility
for
billions
of
dollars
in
land
value
has
recognized
that
requirement
and
to
ensure
that
individuals
remain
current
with
their
changes
in
environmental
technology
and
processes
they
have
to
maintain
their
proficiency
by
completing
a
minimum
of
15
continuing
education
hours
annually.

I'm
asking
the
committee
to
level
the
playing
field.
There
have
been
thousands
of
resumes
that
NREP
has
reviewed
from
people
who
want
to
be
considered
as
qualified
to
practice
and
we
have
rejected
a
large
number
of
them.

As
the
economy
has
shifted,
major
shifts
in
employment
with
engineers
in
aerospace,
chemical,
pulp
and
paper
and
other
fields,
understandably,
have
attempted
to
find
work
and
shift
their
work,
and
most
of
them
over
to
the
environmental
field.

The
National
Registry
of
Environmental
Professionals,
along
with
the
Florida
Environmental
Assessors
Association,
and
also
in
conjunction
with
the
National
Association
of
Environmental
Risk
Assessors
or
Risk
Auditors,
I
should
say,
agree
with
the
EPA
there
are
too
many
people
in
the
environmental
field
with
inadequate
environmental
education
and
little
or
no
practical
field
experience.
This
is
the
reason
why
certification
programs
have
been
developed
to
credential
people
for
conducting
BSA,
Phase
I/
Phase
II
work.

Response:
The
basis
for
recognizing
the
P.
E.
and
P.
G.
licensing
programs
within
the
final
definition
of
environmental
professional
is
that
they
are
state
professional
licensing
programs.
In
the
final
rule,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
176
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
because
the
definition
of
an
environmental
professional
in
the
final
rule
provides
a
clear
set
of
qualifications,
based
upon
educational
and
experience
levels.
Individual
private
certification
organizations
can
simply
compare
their
organization's
certification
requirements
with
the
qualifications
including
in
the
final
rule
and
determine
whether
or
not
their
certification
programs
are
equivalent
or
more
stringent
than
the
definition
in
the
final
rule.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Testa,
Steve
Comment
Number:
PM­
0359­
0002
Excerpt
Number:
1
Excerpt
Text:
The
profession
of
geology
is
not
regulated
in
every
state,
however,
or
U.
S.
territory.
In
fact,
about
28
states
have
some
form
of
licensure
or
registration;
the
other
22
do
not.
Unlike
some
professions,
many
states
do
not
have
a
registration
or
licensure
program
for
Professional
Geologists.
Therefore,
the
rule
as
it
is
written
will
place
the
burden
of
certification
upon
the
individual
professional
geologist
to
apply
for
the
Environmental
Professional
credential.
The
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application.
To
alleviate
some
of
the
burden
on
the
profession
and
the
agency,
and
to
move
toward
a
nationwide
level
of
coherence
of
professional
capabilities,
AIPG
recommends
that
the
rule
be
modified
to
include
the
AIPG
credential
"
Certified
Professional
Geologist"
in
the
definition
of
Environmental
Professional.

In
1963,
AIPG
established
baseline
qualifications
for
granting
the
Certified
Professional
Geologist
title,
referred
to
as
"
CPG."
The
CPG
title
attests
to
the
public
that
those
geologists
who
hold
this
title
have
undergone
peer
review,
and
have
been
deemed
competent
practitioners
who
are
worthy
of
public
interest
and
trust.
The
high
standards
for
obtaining
the
title
have
earned
it
wide
recognition.
The
primary
purpose
of
AIPG,
to
strengthen
geological
science
as
a
profession,
remains
undiminished,
and
it's
recognized
by
the
European
Federation
of
Geologists,
the
Canadian
Securities
Administrators
under
177
National
Instruments
43­
101
and
51­
101,
and
by
the
Australian
Stock
Exchange
as
a
"
Recognized
Overseas
Professional
Organization."

By
including
the
CPG
credential
in
the
definition
of
Environmental
Professional,
the
U.
S.
EPA
can
be
assured
of
the
consistent
application
of
high
standards
in
those
states
that
do
not
have
registration
or
licensure
programs,
while
allowing
for
the
mobility
of
highly
credentialed
professionals
across
state
boundaries.

Approximately
40
percent
of
AIPG
members,
out
of
a
total
of
4500
members,
are
in
states
without
registration
or
licensure
programs,
and
about
75
percent
of
its
membership
identifies
itself
as
engaged
in
environmental
practice.
EPA
can
minimize
duplicative
effort
required
to
process
the
credentials
of
individual
applicants,
i.
e.
the
professional
geologist
that
does
not
live
in
the
state
with
a
registration
or
licensure
program,
by
listing
the
CPG
credential
in
the
rule
itself.
In
this
way,
much
of
the
EPA
administrative
burden
is
obviated.

AIPG
does
not
review
or
modify
certification
qualifications
on
a
frequent
or
periodic
basis.
Since
its
inception
more
than
40
years
ago,
AIPG
has
maintained
a
high
standard
for
the
CPG
title.
The
education
and
experience
requirements
for
AIPG
certification
meet
or
exceed
those
of
all
the
state
registration
or
licensure
programs.
These
include:
A
bachelor
or
higher
degree,
minimum
of
36
semester
hours
in
geological
sciences;
a
minimum
of
eight
years'
experience
with
a
bachelor's
degree;
seven
years
with
a
master's,
and
five
years
with
a
Ph.
D.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
178
three
years
of
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
case
where
a
state
or
tribal
government
does
not
have
a
professional
licensing
or
certification
program,
the
final
rule
provides
other
options
for
qualifying
as
an
environmental
professional
(
i.
e.,
experience
and
educational
requirements).
EPA
does
not
have
an
environmental
professional
licensing
program
and
has
no
plans
to
establish
such
a
program.
The
commenter
is
incorrect
in
asserting
that
in
those
cases
where
a
state
does
not
have
a
licensing
program
for
professional
geologies,
"
the
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application."

Also,
in
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
stringent
qualifications
for
179
environmental
professionals
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
180
2.1.3
Revise
the
Rule
to
Exclude
the
License
Requirement
from
the
Definition
of
the
EP
Commenter
Organization
Name:
Schafer,
Marc
Comment
Number:
0188
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
The
Minimum
Qualifications
for
those
conducting
the
All
Appropriate
Inquiry
work
which
specifically
states
that
a
Professional
Geologist
of
a
Professional
Engineer
is
acceptable
is
objectionable
for
the
following
reasons:
1.)
A
Professional
Engineer
(
PE)
and
Professional
Geologist
(
PG)
receive
no
additional
experience
as
compared
to
an
engineer
with
a
Baccalaureate
degree
over
a
three
year
period
when
both
groups
work
in
environmental
investigations.
Those
successfully
receiving
PE
or
PG
status
will
not
have
garnished
additional
experience
in
their
studies
relative
to
environmental
releases
or
the
causes
of
such
releases
by
virtue
of
studying
for
the
PE
and
PG
exams.
The
additional
requirement
of
two
years
to
be
placed
on
the
Baccalaureate
is
therefore
arbitrary.
2.)
By
specifically
labeling
that
a
Professional
Engineer
(
PE)
and
Professional
Geologist
(
PG)
may
conduct
the
All
Appropriate
Inquiry
work,
it
appears
that
these
titles
are
a
preferred
class
and
therefore
more
desirable.
This
causes
confusion
with
the
user
where
they
must
compare
various
categories.
It
would
be
easier
for
the
user
to
eliminate
the
PE
and
PG
titles
and
use
only
the
experience
and
educational
qualifications.

Response:
The
basis
for
recognizing
the
P.
E.
and
P.
G.
licensing
programs
within
the
final
definition
of
environmental
professional
is
that
they
are
state
professional
licensing
programs.
In
the
final
rule,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
181
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Outsource
Environmental
Company
Comment
Number:
0211
Excerpt
Number:
1
Excerpt
Text:
It
is
our
view
as
an
environmental
consulting
firm
doing
business
with
many
facilities
that
will
be
affected
by
this
rule,
that
the
definition
of
"
Environmental
Professional"
should
not
include
any
particular
licensed
specialities
such
as
"
Professional
Engineer",
"
Professional
Geologist",
"
Registered
Environmental
Professional",
"
Registered
Environmental
Manager",
"
Certified
Hazardous
Materials
Manager"
etc.

We
strongly
support
the
sole
reliance
upon
the
experience
and
educational
criteria
in
the
proposed
rule.
Although
perhaps
adequate
as
written
in
the
proposed
rule,
these
criteria
could
be
improved
by
including
specific
areas
of
knowledge
and
experience
utilized
in
superfund
and
other
site
investigations.
For
example,
include
as
examples
of
relevant
experience
the
following:
RCRA/
CERCLA
regulatory
application
knowledge,
environmental
field/
site
investigation
experience,
property
transfer
"
due
diligence"
investigation
experience,
and
industrial
facility
environmental
and
hazardous
materials
management
experience.

Response:
See
response
to
comment
number
0188,
excerpt
1.

Commenter
Organization
Name:
Peyton,
J.
Comment
Number:
0216
182
Excerpt
Number:
3
Other
Sections:
NEW
­
2.1.2
­
Revise
the
license
requirement
to
include
licensed
or
certified
professionals
other
than
professional
engineers
and
professional
geologists
Excerpt
Text:
Also,
please
consider
accepting
the
Certified
Environmental
Professional,
Qualified
Environmental
Professional,
Registered
Environmental
Manager,
and
Certified
Industrial
Hygienist
certifications
as
equivalent
to
engineering
and
geology
certifications.
These
4
certifications
are
recognized
by
the
Council
of
Science
and
Engineering
Certification
Board,
which
means
that
EPA
can
rely
on
the
rigor
of
these
certifications
without
having
to
monitor
them.
It
is
simply
unfair
to
recognize
some
politically
connected
certifications
but
not
others
that
are
even
more
appropriate.
Or,
do
not
recognize
any
certifications,
including
the
engineering
and
geology
ones.

Response:
In
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
183
Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
1
Excerpt
Text:
The
Mille
Lacs
Band
of
Ojibwe
considers
the
definition
of
an
Environmental
Professional
as
a
person
who
must
be
a
Professional
Engineer
or
Professional
Geologist
to
be
excessive
in
the
conduct
of
Phase
I
assessments.
Since
Phase
I
assessments
primarily
involve
observations
and
the
gathering
of
information,
the
Band
believes
that
such
highly
qualified
Professionals
would
be
too
costly
and
would
strain
the
tribal
resources
of
those
tribes
who
cannot
afford
them
yet
need
Phase
I
assessments
conducted.
In
the
alternative,
the
Band
recommends
the
minimum
of
an
undergraduate
degree
in
engineering,
environmental
or
earth
science
or
certification
program.
If
an
assessment
moved
into
Phase
II
and
III,
the
Band
then
believes
it
is
appropriate
for
a
Professional
Engineer
or
Geologist
since
conclusions
would
be
made
from
the
information
gathered,
and
activities
such
as
sampling,
chemical
analysis,
and
cleanup
would
occur.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
the
presence
of
184
releases
or
threatened
releases...
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
2
Excerpt
Text:
As
to
years
of
relevant
experience,
the
Band
recommends
that
all
enumerated
years
be
reduced
by
half.
Because
many
tribes
frequently
do
not
have
resources
to
hire
or
contract
with
highly
educated
Professionals,
tribes
may
usually
hire
college
graduates
who
may
not
have
many
years
of
experience
but
at
an
entry­
level
position
are
capable
of
conducting
Phase
I
assessments.
This
type
of
arrangement
maximizes
tribal
resources,
where
a
tribe
can
have
a
Phase
I
conducted
without
incurring
the
prohibitive
expense
of
the
Professional
Engineer/
Geologist.

Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
inquiries
investigation
have
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
185
environmental
concerns
at
a
property
or
the
need
for
further
investigation.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
186
2.1.4
Revise
Educational
Requirements
to
Allow
Individuals
with
Baccalaureate
or
Higher
Degrees
in
Areas
Other
than
Engineering,
Environmental
Science,
and
Earth
Science
and
Five
or
More
Years
of
Relevant
Experience
to
Qualify
as
EPs
Commenter
Organization
Name:
Paxton,
Stephen
D
Comment
Number:
0099
Excerpt
Number:
1
Excerpt
Text:
The
qualifications
outlined
in
the
proposed
rule
eliminate
a
significant
portion
of
private
sector
consultants.
As
a
non­
engineer/
geologist,
my
college
degree
in
biology,
environmental
training,
and
experience
in
investigating
and
remediating
contaminated
sites
has
made
myself
and
other
"
scientists"
integral
parts
of
the
environmental
industry.
Private
organizations
with
certification
programs,
such
as
Certified
Hazardous
Materials
Manager
(
CHMM),
have
opened
avenues
for
the
non­
engineer/
geologist
to
progress
in
careers
in
the
environmental
industry
that
have
been
closed
in
the
past.
All
scientists
including
engineers,
geologists,
chemists,
biologists,
physicists,
mathmaticians,
etc.,
have
been
educated
and
trained
in
the
scientific
process
to
objectively
evaluate
conditions
and
draw
conclusions
based
on
evidence.
We
all
require
further
training
that
is
not
part
of
a
college
curriculum.
All
scientists
are
capable
of
continuing
to
learn
after
college.
The
proposed
qualifications
indicate
a
lack
of
understanding
of
science
education
and
scientists.
Eliminating
entire
disciplines
from
qualification
is
a
dis­
service
to
our
institutes
of
higher
learning
as
well
as
the
science­
educated
individuals
and
will
create
another
barrier
for
the
non­
engineer/
geologist
in
the
industry.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
187
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Zutz
Comment
Number:
0104
Excerpt
Number:
3
Excerpt
Text:
Subsection
(
4)
says
that
state
professional
licensing
rules
may
apply
to
PEs,
PGs
or
other
site
remediation
professionals.
Note
that
in
South
Dakota,
for
example,
a
PE
would
need
to
be
state
licensed
to
conduct
the
work
as
a
PE.
However,
the
same
individual
would
not
have
to
be
licensed
if
he
conducted
the
work
having
a
college
degree
and
5
or
10
years
of
experience.

South
Dakota
requires
PEs
to
have
at
least
three
to
five
years
of
relevant
experience.
Most
states
have
a
professional
licensing
reciprocity
agreement
with
other
states.
Neighboring
Nebraska
requires
those
registered
by
reciprocity
to
have
15
years
of
experience.
For
a
South
Dakota
licensed
PE
to
work
in
Nebraska
as
a
PE
would
require
15
years
of
experience
(
because
of
state
requirements),
not
three
(
as
stated
in
the
proposed
rule).

Therefore,
PEs
have
an
additional
(
state
by
state)
licensing
burden
above
and
beyond
that
required
for
those
without
such
education
and
experience.
There
is
a
cost
in
time
and
money
to
both
the
PE
and
their
customers
for
the
PE
to
be
licensed
in
multiple
states.

Consider
an
example
of
a
biologist
(
with
no
other
licenses)
who
has
been
conducting
environmental
work
for
four
years.
Under
the
proposed
rules,
he
would
not
be
qualified
to
continue
work
regulated
by
these
proposed
rules
until
he
has
five
years
of
experience.
The
additional
experience
requirement
costs
both
time
and
money
to
the
environmental
professional
and
their
customers
.

The
proposed
rule
puts
an
additional
burden
on
those
with
greater
certifications
or
experience.
It
also
will
exclude
some
qualified
individuals.
For
these
reasons,
we
strongly
suggest
the
definition
of
an
environmental
professional
be
expanded
to
those
persons
with
a
college
degree
and
three
years
of
relevant
experience.
188
Response:
After
considering
all
public
comment,
it
is
the
Agency's
decision
that
it
is
essential
for
all
environmental
professionals
overseeing
the
conduct
of
all
appropriate
inquiries
to
have
at
least
three
years
of
full­
time
relevant
experience,
despite
the
level
of
education
attained
by
any
individual.
The
definition
of
an
environmental
professional
in
the
final
rule
does
take
into
account
that
most
state
licensing
and
certification
programs
require
a
certain
number
of
years
of
experience.
Therefore,
the
definition
of
environmental
professional
in
the
final
rule
provides
that
state
and
tribal
licensed
or
certified
environmental
professionals
need
to
have
only
three
years
of
full
time
relevant
experience
to
meet
the
definition.
Persons
with
college
degrees
in
science
or
engineering
must
have
five
years
of
full
time
experience
and
persons
without
college
degrees
in
science
or
engineering
must
have
ten
years
of
full
time
relevant
experience.

In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Fishman,
Betty
Comment
Number:
0138
Excerpt
Number:
1
Excerpt
Text:
The
published
notice
says
the
All
Appropriate
Inquiries
Committee's
intent
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"
(
page
52552).
It
also
states:
"
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"
(
page
52553).

Given
these
statements,
it
would
seem
that
individuals
trained
in
science
and
engineering
are
the
logical
choices
to
be
designated
as
"
Environmental
Professionals."
However,
the
proposed
language
has
taken
"
trained
in
science"
and
severely
limited
its
application.
It
defines
an
Environmental
Professional
as
a
P.
E.,
a
P.
G.,
or
one
who
is
licensed
by
the
189
federal
government,
a
state,
tribe,
or
U.
S.
territory
to
perform
environmental
inquiries,
plus
3
years
of
full­
time
relevant
experience,
OR
one
who
has:

­
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
­
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
years
of
fulltime
relevant
experience.

There
are
many
professionals
with
degrees
in
chemistry,
biology,
microbiology,
and
geology
who
are
successfully
conducting
environmental
assessments
such
as
those
referenced
in
this
proposal.
Unless
chemistry
and
biology
are
included
under
"
environmental
science"
and
geology
is
recognized
as
"
earth
science"
(
which
is
not
explicitly
stated),
these
individuals
do
not
fit
into
the
first
definition
above;
they
are
shunted
into
the
category
of
non­
relevantly
trained
persons
under
the
last
paragraph.

This
seems
inequitable
and
short­
sighted.
The
conditions
and
types
of
problems
Environmental
Professionals
are
expected
to
recognize
under
this
rule
are
chemical,
biological,
and
geological
in
nature.
Furthermore,
although
this
proposal
is
designed
for
a
rule
dealing
with
evaluation
of
brownfields,
it
is
likely
that
once
a
definition
of
"
Environmental
Professional"
has
been
promulgated
in
this
standard,
it
will
be
adopted
for
use
in
other
rules
and
standards.
Therefore,
the
definition
should
be
crafted
to
apply
to
all
types
of
environmental
conditions.

For
that
reason,
I
urge
the
inclusion
of
explicit
language
in
the
definition
to
recognize
the
qualifications
of
those
trained
in
chemistry,
biology,
and
the
other
natural
and
physical
sciences,
as
follows:

­
have
a
Baccalaureate
or
a
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering
or
environmental,
earth,
physical,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Academy
of
Certified
Hazardous
Materials
Managers
Comment
Number:
0140
Excerpt
Number:
1
Excerpt
Text:
We
strongly
suggest
that
within
the
definition
of
Environmental
Professional
the
wording
in
section
§
312.10
(
2)(
iii)
be
amended
to
the
following:
190
§
312.10
EP
Definition,
section
(
2)(
iii)
have
any
Baccalaureate
or
a
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;

As
the
current
proposed
rule
is
worded
EPA,
through
the
adoption
of
the
third
party
ASTM
derived
definition
of
an
Environmental
Professional,
has
proposed
a
definition
that
is
not
congruent
with
today's
educational
systems
demands,
applications,
or
competencies.
Further
EPA
has
by
the
specific
rule
language
labeled
an
EP
as
being
applied
only
to
the
Appropriate
Inquiries
rule;
this
is
a
very
narrowly
limited
valuation
of
an
environmental
professional's
duties
or
service
offerings.
EPA
has
by
default
said
that
any
chemist
or
biologist
or
individuals
with
other
types
of
Bachelors
of
Science
degrees
are
not
competent
or
capable
of
making
environmental
decisions.
As
an
example,
it
should
be
noted
by
EPA
that
many
of
its
own
employees
carry
a
degree
in
Biology;
does
this
mean
that
they
cannot
be
considered
as
Environmental
Professionals?

The
wording
of
the
EP
definition
section
§
312.10
(
2)(
iii)
and
(
iv)
needs
to
be
changed
to
be
an
inclusive
term
that
truly
will
define
those
individuals
that
hold
themselves
to
be
EPs
within
the
broad
field
of
environmental
endeavors.
The
definition
wording
needs
to
be
such
that
the
Environmental
Professional
definition
can
be
applied
and
used
as
a
equivalent
term
by
all
who
are
true
environmental
professionals
and
in
all
rule
sites
where
work
is
required
that
demands
an
environmental
professional
designation.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Kay,
Michael
Comment
Number:
0142
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.5
­
Revise
the
minimum
requirements
to
allow
individuals
certified
by
a
professional
organization
that
is
third
party
accredited
and
have
ten
years
of
full­
time
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
Further,
I
would
like
to
make
these
additional
comments:
My
Sc.
D.
is
an
earned
Doctor
of
Science
in
Chemistry
from
the
Massachusetts
Institute
of
Technology,
1970.
I
am
an
analytical
chemist.
I
earned
the
Certified
Hazardous
Materials
Manager
certification
in
1991
and
have
kept
my
certification
current.
I
consider
my
education
and
CHMM
certification
ample
evidence
to
support
my
claim
to
be
an
Environmental
Professional.

Response:
Please
see
responses
to
comment
numbers
0216
(
excerpt
3)
and
0099
(
excerpt
1).

Commenter
Organization
Name:
Anonymous
Comment
Number:
0148
191
Excerpt
Number:
1
Excerpt
Text:
Amend
the
wording
to
read
"...
relevant
disciplines
of
engineering,
environmental,
earth,
physcial
or
natural
sciences..."

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Frick,
John
H
Comment
Number:
0173
Excerpt
Number:
1
Excerpt
Text:
The
published
notice
says
the
All
Appropriate
Inquiries
Committee's
intent
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"
(
page
52552).
It
also
states:
"
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"
(
page
52553).

Given
these
statements,
it
would
seem
that
individuals
trained
in
science
and
engineering
are
the
logical
choices
to
be
designated
as
"
Environmental
Professionals."
However,
the
proposed
language
has
taken
"
trained
in
science"
and
severely
limited
its
application.
It
defines
an
Environmental
Professional
as
a
P.
E.,
a
P.
G.,
or
one
who
is
licensed
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory
to
perform
environmental
inquiries,
plus
3
years
of
full­
time
relevant
experience,
OR
one
who
has:

­
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
­
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience.

There
are
many
professionals
with
degrees
in
chemistry,
biology,
microbiology,
and
geology
who
are
successfully
conducting
environmental
assessments
such
as
those
referenced
in
this
proposal.
Unless
chemistry
and
biology
are
included
under
"
environmental
science"
and
geology
is
recognized
as
"
earth
science"
(
which
is
not
explicitly
stated),
these
individuals
do
not
fit
into
the
first
definition
above;
they
are
shunted
into
the
category
of
non­
relevantly
trained
persons
under
the
second
paragraph.

This
seems
inequitable
and
short­
sighted.
The
conditions
and
types
of
problems
Environmental
Professionals
are
expected
to
recognize
under
this
rule
are
chemical,
biological,
and
geological
in
nature.
Furthermore,
although
this
proposal
is
designed
for
a
rule
dealing
with
evaluation
of
brownfields,
it
is
likely
that
once
a
definition
of
192
"
Environmental
Professional"
has
been
promulgated
in
this
standard,
it
will
be
adopted
for
use
in
other
rules
and
standards.
Therefore,
the
definition
should
be
crafted
to
apply
to
all
types
of
environmental
conditions.

For
that
reason,
I
urge
the
inclusion
of
explicit
language
in
the
definition
to
recognize
the
quali­
fications
of
those
trained
in
chemistry,
biology,
and
the
other
natural
and
physical
sciences,
as
follows:

­
have
a
Baccalaureate
or
a
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering
or
environmental,
earth,
physical,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
 

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Farrell,
Margaret
Comment
Number:
0192
Excerpt
Number:
1
Excerpt
Text:
Please
do
not
exclude
natural
scientists,
which
are
vitally
important
to
environmental
projects,
from
your
definition.
Environmental
projects
are
unique
in
requiring
multidisciplinary
experience.
Do
not
forget
the
vast
number
of
experts
that
are
in
the
environmental
business.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
6
Excerpt
Text:
we
recommend
that
§
312.10(
b)(
1)(
i­
iv)
of
the
EPA
proposed
rule
be
amended
to
state
that
all
requirements
to
conduct
All
Appropriate
Inquiries
set
forth
for
engineers
be
the
same
as
those
with
a
BA
or
BS
level
degree
in
an
environmentally
concentrated
field;

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Peyton,
J.
Comment
Number:
0216
Excerpt
Number:
2
193
Excerpt
Text:
Also
please
specify
"
any
bachelors
degree
in
the
physical
or
biological
sciences"
so
as
to
be
inclusive
of
every
experienced
practitioner.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
5
Other
Sections:
NEW
­
2.1.8.1
­
The
grandfather
clause
is
too
stringent
Excerpt
Text:
I
support
the
changes
put
forward
by
the
National
Registry
of
Environmental
Professionals
­
in
that
§
312.10(
b)(
1)(
i­
iv)
of
the
EPA
proposed
rule
be
amended
to
state
all
requirements
set
forth
for
engineers
to
conduct
all
appropriate
inquiries
be
the
same
as
those
with
a
BA
or
BS
level
degree
in
an
environmentally
concentrated
field
in
conducting
the
same
inquiries;
and,
the
experience
requirement
for
those
with
no
degree
in
an
environmentally
concentrated
field
be
reduced
from
10
years
to
5
years.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
1
Excerpt
Text:
1
Steve
Myers
EP
Definition
312.10(
c)(
2)
iii
The
qualifications
to
be
an
environmental
professional
should
be
changed
to
include
a
BA
or
BS
in
chemistry,
physics
and/
or
the
life
science
degree
plus
5
years
experience.
Limiting
the
title
to
just
engineers,
geologists,
and
people
with
earth
science
and
environmental
science
degrees
arbitrarily
punishes
people
who
entered
the
business
prior
to
most
schools
establishing
environmental
science
programs
but
do
not
yet
have
the
requisite
10
years
experience.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
3
Excerpt
Text:
As
currently
written,
paragraph
(
2)(
iii)
only
qualifies
persons
having
a
Baccalaureate
or
higher
degree
in
"...
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
194
science
 "
as
an
EP.
This
definition
appears
to
omit
persons
with
degrees
in
chemistry,
physiology,
biology,
etc.,
all
fields
of
study
pertinent
and
appropriate
to
the
conduct
of
environmental
investigations.
The
apparent
omission
of
chemistry
as
a
"
relevant
discipline"
is
particularly
egregious
since
the
pertinent
environmental
issues
associated
with
AAI
are
the
use
and
release
of
chemicals.
Therefore,
I
recommend
the
following
wording
for
(
2)(
iii):

Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;

The
use
of
"
natural
science"
instead
of
"
earth
science"
is
inclusive
of
the
relevant
scientific
disciplines
for
AAI,
including
the
earth
sciences.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Christensen,
Mark
Comment
Number:
0260
Excerpt
Number:
1
Excerpt
Text:
As
an
environmental
professional,
I
hold
a
Master
of
Science
degree
in
Environmental
Management.
According
to
the
proposed
EPA
definition
of
an
Environmental
Professional,
this
degree
does
not
meet
the
technical
definition
because
it
is
not
specifically
an
environmental
science
or
earth
science
degree,
although
the
curriculum
therein
was
environmental
science.
I
am
therefore
concerned
that
many
practicing
environmental
professionals
such
as
myself
will
be
excluded
from
practicing
in
some
areas
or
signing­
off
certain
documents.

Response:
Please
see
response
to
comment
numbers
0104
(
excerpt
3)
and
0099
(
excerpt
1).

Commenter
Organization
Name:
Anonymous
Comment
Number:
0276
Excerpt
Number:
1
Excerpt
Text:
The
Academy
of
Certified
Hazardous
Materials
Managers
(
ACHMM)
representing
the
6,000
individuals
who
hold
the
professional
designation
of
the
Certified
Hazardous
Materials
Managers
(
CHMM)
certificate
while
commending
EPA
for
its
efforts
in
developing
a
?
negotiated?
credible
definition
concerning
who
is
a
qualified
"
Environmental
Professional"
(
EP)
have
serious
concerns
with
the
explicit
wording
within
the
proposed
definition
and
how
this
definition
may
be
applied
to
environmental
work
practices
and
products.
Those
individuals
who
consider
themselves
as
EPs
and
have
input
and
impact
concerning
environmental
decisions
and
issues
are
most
critical
to
the
195
present
and
future
condition
of
the
local,
national,
and
global
environs
in
which
we
as
human
beings
co­
exist
with
those
other
non­
human
inhabitants
of
this
planet.
The
value
of
these
Environmental
Professionals
cannot
be
measured,
however
their
decisions
and
professional
input
demands
that
those
individuals
who
hold
themselves
to
be
an
EP
conduct
their
business
affairs
with
the
highest
integrity
and
professional
credibility.
We
also
can
foresee
that
EPA
may
use
this
definition
not
only
within
the
Inquiry
or
Brownfields
rules
but
also
as
an
inclusive
equivalent
replacement
term
to
define
credible
individuals
in
all
of
EPA's
rules
and
regulations
where
now
specific
professional
designation
requirements
are
sited.
We
could
agree
with
EPA
using
the
EP
language
in
this
way,
but
only
if
the
EP
definition
is
appropriately
worded
to
include
a
broader
educational
requirement
definition
than
is
currently
proposed
and
contains
language
that
is
broader
and
relates
more
appropriately
to
the
entire
environmental
field.

Response:
The
definition
of
environmental
professional
in
the
final
rule
pertains
only
to
individuals
overseeing
all
appropriate
inquiries
investigations
in
compliance
with
the
final
rule.
The
definition
is
not
applicable
for
any
other
purpose.
EPA
has
no
plans
to
apply
the
definition
of
environmental
professional
in
this
final
rule
to
any
other
environmental
program.

Please
also
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
6
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
The
EP
is
defined
in
§
312.10
(
b)(
1)
and
(
2).
Essentially,
the
qualifications
involve
either
holding
a
PE
or
PG
certification
and
three
years
of
full
time
relevant
experience;
or
holding
a
Baccalaureate
or
higher
degree
in
the
relevant
disciplines
of
engineering,
environmental
science,
or
earth
science
plus
five
years
of
full
time
relevant
experience.

Comment:
We
disagree
with
the
minimum
qualifications
for
an
EP.
The
current
language
is
far
too
restrictive.
Having
the
specified
professional
certifications
or
degrees
has
no
relevance,
in
our
professional
opinion.
In
our
more
than
20
years
of
experience
in
performing
Phase
I
investigations,
we
have
seen
no
correlation
between
certifications
or
degree
fields
and
the
competent
undertaking
of
a
site
investigation.
There
is
an
important
thought
process
that
is
necessary
in
order
to
complete
a
quality
Phase
I
investigation.
In
part,
it
requires
knowledge
about
commercial
and
industrial
processes
and
activities,
including
by­
products.
But
it
also
requires
an
ability
to
comb
through
municipal
records,
historical
sources,
and
other
reference
material
in
an
effort
to
put
together
an
historical
use
puzzle.
PE
certifications
or
degrees
in
engineering
or
specific
sciences
have
little
bearing
on
the
ability
of
the
professional
to
appropriately
conduct
such
research.
We
strongly
recommend
broadening
the
criteria
to
a
single
one
(
beyond
the
grandfathering
196
threshold)
involving
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
and
three
years
of
relevant
full­
time
experience.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
197
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
1
Excerpt
Text:
From
our
experience,
a
total
of
4
years
is
sufficient
time
for
an
individual
with
a
BA
or
BS
degree
or
higher
to
be
considered
as
an
Environmental
Professional
(
EP).
4
years
working
with
an
EP
is
the
equivalent
time
for
a
second
undergraduate
degree
at
a
4­
year
university.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

The
Agency
is
retaining
the
requirement
that
individuals
with
college
degrees
in
science
and
engineering
have
five
years
of
full­
time
relevant
experience
to
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
the
conduct
of
all
appropriate
inquiries.
However,
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
198
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
6
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
2)
FAA
believes
that
the
qualifications
for
an
EP
should
also
include
those
with
a
Bachelor's
(
BA
or
BS)
in
chemistry,
physics,
and/
or
the
life
sciences
plus
years
of
relevant
experience.
Limiting
the
title
to
just
engineers,
geologists,
and
people
with
earth
and
environmental
science
degrees
arbitrarily
punishes
those
who
entered
the
business
prior
to
most
schools
establishing
environmental
science
programs
but
who
do
not
yet
have
the
requisite
10
years
of
experience
before
the
publication
of
the
final
rule.
Also,
there
is
no
reason
to
assume
that
someone
with
a
professional
engineer's
(
PE)
or
professional
geologist's
(
PG)
certification
will
better
understand
and
judge
a
property's
likelihood
of
contamination
after
three
years
of
relevant
experience
than
someone
with
a
BS
in
a
relevant
degree
and
five
years
of
experience.
Therefore,
FAA
believes
that
it
is
arbitrary
and
capricious
to
require
those
with
a
BS
to
have
two
extra
years
of
relevant
experience
than
a
PE
or
PG
must
have
in
order
to
qualify
as
an
EP.

Response:
Please
see
responses
to
comment
numbers
0099
(
excerpt
1)
and
0314
(
excerpt
6).

Commenter
Organization
Name:
Anonymous
Comment
Number:
0348
Excerpt
Number:
2
Excerpt
Text:
The
regulation
such
clearly
state
that
any
environmental
science
degree
is
relevant,
including
degrees
in
chemistry,
biology,
natural
resources,
toxicology,
geology,
and
engineering.
The
regulation
should
be
worded
to
NOT
imply
any
preference
for
any
specific
science
degrees
­
Phase
I's
have
a
long
history
of
multidisciplinary,
interdisciplinary
input.
Do
not
let
any
single
profession(
s)
try
to
appropriate
the
field
for
themselves
­
lest
the
interdisciplinary
expertise
that
is
the
hallmark
of
environmental
consulting
will
be
replaced
with
professional
bias.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Potter
and
Adams
Comment
Number:
0351
Excerpt
Number:
2
199
Excerpt
Text:
The
definition
of
EP
is
overly
narrow
and
does
not
support
what
we
believe
is
the
intent
of
the
rule.
A
suggested
alternative
wording
is
"
Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences
and
the
equivalent
of
five
(
5)
years
of
fulltime
relevant
experience;".

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
2
Excerpt
Text:
1.
The
proposed
rule
should
be
amended
so
that
the
definition
of
Environmental
Professional
includes
professionals
with
other
science
degrees
(
e.
g.,
chemistry,
biology,
agronomy,
wildlife
&
fisheries,
forestry)
who
have
five
years
of
relevant,
full­
time
experience.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

In
addition,
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
200
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Kehres
Comment
Number:
0395
Excerpt
Number:
2
Excerpt
Text:
­­
As
currently
written,
paragraph
(
2)(
iii)
only
qualifies
as
an
EP
persons
having
a
Baccalaureate
or
higher
degree
in
"
...
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
.
.
.".
This
definition
appears
to
omit
persons
with
degrees
in
chemistry,
physiology,
biology,
etc.,
all
fields
of
study
pertinent
and
appropriate
to
the
conduct
of
environmental
investigations.
The
apparent
omission
of
chemistry
as
a
"
relevant
discipline"
is
particularly
egregious
since
the
pertinent
environmental
issues
associated
with
AAI
are
the
use
and
release
of
chemicals.
Therefore,
I
recommend
the
following
wording
for
(
2)(
iii):

Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;

The
use
of
"
natural
science"
instead
of
"
earth
science"
is
inclusive
of
the
relevant
scientific
disciplines
for
AAI,
including
the
earth
sciences.
An
alternative
wording
could
be
"
physical
and
biological
sciences."

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Andrews,
Douglas
Comment
Number:
0399
Excerpt
Number:
2
Excerpt
Text:
(
2)(
iii)
As
currently
written,
paragraph
(
2)(
iii)
only
qualifies
as
an
EP
persons
having
a
Baccalaureate
or
higher
degree
in
"...
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
 ".
This
definition
appears
to
omit
persons
with
degrees
in
chemistry,
physiology,
biology,
etc.,
all
fields
of
study
pertinent
and
appropriate
to
the
conduct
of
environmental
investigations.
The
apparent
omission
of
chemistry
as
a
"
relevant
discipline"
is
particularly
egregious
since
the
pertinent
environmental
issues
associated
with
AAI
are
the
use
and
release
of
chemicals.
Therefore,
I
recommend
the
following
wording
for
(
2)(
iii):

Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
201
The
use
of
"
natural
science"
instead
of
"
earth
science"
is
inclusive
of
the
relevant
scientific
disciplines
for
AAI,
including
the
earth
sciences.
An
alternative
wording
could
be
"
physical
and
biological
sciences."

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.2
­
Revise
the
license
requirement
to
include
licensed
or
certified
professionals
other
than
professional
engineers
and
professional
geologists
Excerpt
Text:
As
background,
all
CHMMs
must
pass
a
rigorous
exam
administered
by
the
Institute
of
Hazardous
Waste
Management,
ACHMM's
third­
party
accrediting
organization,
and
demonstrate
an
understanding
of
the
basic
principles
involved
in
technologies
pertaining
to
hazardous
materials
management,
knowledge
of
the
sciences,
including
chemistry,
radiology,
physical
sciences,
geology/
hydrology,
toxicology
and
engineering,
knowledge
of
the
regulations,
such
as
TSCA,
RCRA,
CERCLA,
OSHA,
DOT
and
EPA,
that
govern
environmental
and
hazardous
materials
management,
and
competence
and
maturity
of
judgment
managing
environmental
program
resources.
To
qualify
at
the
Master
Level,
new
members
must
have
a
degree
in
engineering
or
a
field
related
to
hazardous
materials
management,
seven
(
7)
years
experience
in
the
field
with
responsibility
for
developing,
implementing
and
directing
or
evaluating
hazardous
material
management
programs.
New
Senior
Level
members
must
have
a
degree
in
engineering
or
a
field
related
to
hazardous
materials
management
and
three
(
3)
years
of
experience
in
the
field
of
hazardous
materials
management
or
engineering,
including
related
graduate
studies
at
an
accredited
college
Or
university
which
may
substitute
for
field
experience
on
a
year­
foryear
basis.
Prior
to
2003,
Senior
Level
members
with
eleven
(
11)
years
of
field
experience
could
sit
for
the
exam
without
a
baccalaureate
degree
upon
recommendation
by
other
environmental
professionals.

As
defined
in
the
proposed
All
Appropriate
Inquiry
Rule,
an
"
environmental
professional"
must
meet
the
following
requirements:

­(
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;

40
CFR
§
312.10(
2)(
iii).
In
keeping
with
the
EPA's
goal
that
environmental
professionals
must
'"
possess
significant
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
202
proposed
regulation,"
69
Fed.
Reg.
52452,
52552
(
Proposed
Rule,
August
26,
2004),
KCHMM
recommends
that
the
definition
of
environmental
professional
in
40
CFR
§
312.10(
2)(
iii)
be
amended
to
include
professionals
with
degrees
in
physical
or
natural
sciences,
such
as
chemistry
or
biology,
and
certification
from
a
third­
party
accrediting
organization
as
follows:

­
have
a
Baccalaureate
or
a
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
relevant
disciplines
of
engineering,
environmental,
earth,
physical,
or
natural
sciences,
three
(
3)
years
of
full­
time
relevant
experience,
and
be
an
individual
certified
by
a
professional
organization
with
third
party
accreditation.

In
the
case
of
a
CHMM,
such
an
individual
would
have
the
following
qualifications:
(
1)
a
Baccalaureate
or
higher
degree
in
engineering
or
a
field
related
to
hazardous
materials
management;
(
2)
at
least
three
years
experience
in
the
field
of
managing
hazardous
materials;
(
3)
demonstrated
knowledge
and
understanding
of
the
basic
principles
involved
in
hazardous
materials
management,
including
an
understanding
of
the
regulations
governing
sites,
(
4)
passed
a
rigorous
exam;
and
(
5)
pledged
to
maintain
the
highest
standards
of
integrity
through
the
CHMM
Code
of
Ethics,
a
copy
of
which
is
attached
for
your
convenience.

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
exclude
existing
nationally
recognized
environmental
professional
programs
such
as
the
Certified
Hazardous
Materials
Manager
(
CHMM)
program.
As
long
as
the
certification
program's
requirements
meet
or
exceed
the
qualifications
in
the
final
rule's
definition
of
environmental
professional,
any
person
receiving
certification
from
the
CHMM
program
will
meet
the
definition
of
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries
investigation.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.
203
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
2
Excerpt
Text:
§
312.10
Definitions
(
b),
Environmental
Professional
The
Environmental
Professional
definition
in
(
2)
(
iii)
and
(
iv)
should
be
changed
to
read:

­
Environmental
Professional
means:

­­(
iii)
Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
or
natural
sciences
and
the
equivalent
of
five
(
5)
four
(
4)
years
of
full­
time
relevant
experience;
or
­­(
iv)
As
of
the
date
of
the
promulgation
of
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
five
(
5)
years
of
full­
time
relevant
experience.

Rationale:
204
­
The
number
of
years
of
full­
time
relevant
experience
for
a
Baccalaureate
or
higher
degree
in
a
relevant
discipline
should
be
modified
in
(
2)(
iii)
to
be
more
consistent
with
(
2)(
i)
PE
and
PG
and
(
2)(
ii)
licensed
and
certified
Environmental
Professionals.
There
were
apparent
interests
being
protected
during
the
drafting
of
this
definition
to
give
PEs
and
PGs
preferential
positions
in
this
definition.
An
unfounded
distinction
has
been
made
between
the
number
of
years
of
experience
necessary
for
PEs/
PGs
and
licensed/
certified
versus
Baccalaureate
or
higher
degrees
in
relevant
disciplines.
A
defensible
explanation
of
this
distinction
is
not
apparent.

­
Ten
years
of
relevant
full­
time
experience
for
degree
holders
in
non­
relevant
disciplines
is
an
unnecessarily
high
entrance
level
to
be
considered
qualified
as
an
Environmental
Professional
in
this
category.
A
Grandfather
Clause,
by
its
nature,
should
be
more
lenient
and
accessible.
Baccalaureate
or
higher
degree
holders
of
all
disciplines
who
have
been
performing
environmental
site
assessments
or
other
related
work
for
five
years,
should
be
considered
qualified.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

In
addition,
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
205
Commenter
Organization
Name:
Hoskins,
Herbert
Comment
Number:
0428
Excerpt
Number:
2
Excerpt
Text:
As
currently
written,
paragraph
(
2)(
iii)
only
qualifies
as
an
EP
persons
having
a
Baccalaureate
or
higher
degree
in
"...
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
 ".
This
definition
appears
to
omit
persons
with
degrees
in
chemistry,
physiology,
biology,
etc.,
all
fields
of
study
pertinent
and
appropriate
to
the
conduct
of
environmental
investigations.
The
apparent
omission
of
chemistry
as
a
"
relevant
discipline"
is
particularly
egregious
since
the
pertinent
environmental
issues
associated
with
AAI
are
the
use
and
release
of
chemicals.
Therefore,
I
recommend
the
following
wording
for
(
2)(
iii):

Have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
natural
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;

The
use
of
"
natural
science"
instead
of
"
earth
science"
is
inclusive
of
the
relevant
scientific
disciplines
for
AAI,
including
the
earth
sciences.
An
alternative
wording
could
be
"
physical
and
biological
sciences."

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Commenter
Organization
Name:
Haley
and
Aldrich
Comment
Number:
0432
Excerpt
Number:
2
Excerpt
Text:
We
concur
that
AAI
investigations
should
be
designed
by
qualified
professionals
and
that
a
minimum
education
and
experience
standards
for
environmental
professional
standard
should
be
required.
However,
the
definition
of
an
Environmental
Professional
(
EP)
as
provided
does
have
some
ambiguities.
In
general,
and
except
where
grandfathered,
we
concur
that
an
environmental
professional
should
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
years
of
full
time
relevant
experience.
The
definition
of
what
constitutes
an
"
environmental
science",
however,
is
not
clear.
We
assume
that
a
degree
in
chemistry
would
suffice
as
an
environmental
science,
but
it
is
not
clear.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.
206
Commenter
Organization
Name:
Anonymous
Comment
Number:
0439
Excerpt
Number:
1
Excerpt
Text:
In
response
to
[
SFUND
2004
0001;
FRL
7815
2]
Standards
and
Practices
for
All
Appropriate
Inquiries
(
AAI)
I
disagree
with
the
proposed
definition
of
environmental
professional
as
drafted.
After
carefully
reviewing
the
standards
for
conducting
appropriate
inquiries
into
previous
ownership,
uses;
and
environmental
conditions
of
property
I
support
the
body
of
the
text,
but
not
the
proposed
definition
of
environmental
professional.

Overall,
I
believe
the
notice
provides
a
framework
to
build
upon,
perhaps
over
a
specified
period
of
time,
however
I
do
not
concur
with
the
proposed
definition:
Environmental
Professional
as
drafted.

More
importantly,
environmental
practitioners
today
(
seasoned
veterans
and
college
graduates)
even
though
competent
and
skilled
may
not
"
qualify"
based
on
the
proposed
definition.
As
an
example,
environmental
conditions
today
have
a
much
broader
reach
as
we
enter
into
the
topic
of
bio
terrorism
and
chemical
agents
that
may
have
a
direct
impact
to
response
and
recovery
actions
outlined
within
the
revised
National
Response
Plan
(
NRP).

For
these
reasons,
I
disagree
with
the
proposed
definition
of
environmental
professional,
but
support
the
efforts
of
this
proposal.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

In
addition,
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
207
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
2
Excerpt
Text:
Investigative
skills,
interview
skills,
interpretation
of
the
importance
of
existing
data
or
gaps
in
the
data
are
key
requirements
for
environmental
professionals.

Currently,
there
is
no
one
educational
program
that
teaches
all
of
these
skills.
A
scientific
education
provides
an
excellent
background
and
this
includes
the
life
sciences,
biology,
agronomy,
toxicology,
forestry.
Bachelor
degrees
in
life
sciences,
including
toxicology,
should
be
included
in
the
definition
in
312.10(
B)(
2)(
iii),
if
I've
got
that
right.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

In
addition,
based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
208
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
209
2.1.5
Revise
the
Minimum
Requirements
to
Allow
Individuals
Certified
by
a
Professional
Organization
that
is
Third
Party
Accredited
and
Have
Ten
Years
of
Full­
Time
Relevant
Experience
to
Qualify
as
EPs
Commenter
Organization
Name:
Anonymous
Comment
Number:
0129
Excerpt
Number:
1
Excerpt
Text:
I
am
familiar
with
the
comments
that
have
been
submitted
by
Mr.
Tom
Brown
of
the
Academy
of
Certified
Hazardous
Materials
Managers
concerning
the
proposed
definitions
of
"
Environmental
Professional".
Despite
the
fact
that
I
am
a
Professional
Geologist,
and
the
language
proposed
by
EPA
will
include
me
in
any
case,
I
strongly
support
the
comments
made
by
Mr.
Brown
and
the
ACHMM.
When
you
have
stringent
3rd
party
accreditation
that
requires
some
mastery
of
all
areas
of
environmental
practice,
as
with
the
CHMM
credential,
it
is
difficult
to
see
a
valid
reason
to
restrict
the
definition
as
you
have
proposed.

Response:
Please
see
response
to
comment
number
0405,
excerpt
1.

Commenter
Organization
Name:
Academy
of
Certified
Hazardous
Materials
Managers
Comment
Number:
0140
Excerpt
Number:
2
Excerpt
Text:
As
stated
in
the
FR
notice
there
is
a
"
grandfathering"
clause
but
that
only
applies
to
the
inquiry
rule
activities
specifically.
We
propose
that
the
wording
should
be
as
follows:

§
312.10
EP
Definition,
section
(
2)(
iv)
As
of
the
date
of
promulgation
on
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education,
or
be
individuals
that
are
certified
by
a
professional
organization
that
is
third
party
accredited
and
have
ten
(
10)
years
of
full­
time
of
relevant
experience.

We
continue
to
suggest
that
EPA
consider
and
support
those
professional
designations
that
are
third
party
accredited
as
being
the
designations
that
are
the
most
credible
and
viable
for
the
mentioned
professional
service
provisions.
As
you
are
aware,
third
party
accreditation
moves
any
designation
further
towards
a
true
professional
stature
with
the
associated
accrediting
party's
initial
qualifications
requirements,
continuing
educational
requirements,
and
with
the
inclusive
"
Code
of
Ethics"
that
any
professional
association
or
organization,
as
well
as
the
states,
requires
and
enforces.
The
institute
of
Hazardous
Materials
Managers
which
provides
the
Certified
Hazardous
Materials
Managers
certification
to
individuals
is
accredited,
similar
to
accreditation
EPA
is
correctly
requiring
in
the
proposed
rule
language
from
the
University
and
College
system,
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
which
adheres
to
the
stringent
210
ASTM
E1929­
98
standard
for
personal
certifications
accrediting
requirements
in
reference
to
its
organizational
members
that
are
certifying
bodies
for
their
members.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0141
Excerpt
Number:
1
Excerpt
Text:
By
this
statement
I
would
like
to
voice
my
support
for
the
comments
submitted
by
Tom
Brown
for
the
Academy
of
Certified
Hazardous
Materials
Managers
(
ACHMM).
Mr
Brown's
comments
on
how
the
definition
of
a
qualified
environmental
professional
should
be
changed
are
relevant,
important
and
should
be
incorporated
into
the
definition.
In
my
own
case
despite
sciences
degrees,
18
years
of
relevant
experience
and
certification
as
a
CHMM
at
the
masters
level
I
could
be
considered
NOT
qualified
as
an
environmental
professional
under
the
proposed
definition.
211
Response:
Please
see
responses
to
comment
number
0405,
excerpt
1.

Commenter
Organization
Name:
Kay,
Michael
Comment
Number:
0142
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.4
­
Revise
educational
requirements
to
allow
individuals
with
Baccalaureate
or
higher
degrees
in
areas
other
than
engineering,
environmental
science,
and
earth
science
and
five
or
more
years
of
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
Further,
I
would
like
to
make
these
additional
comments:
My
Sc.
D.
is
an
earned
Doctor
of
Science
in
Chemistry
from
the
Massachusetts
Institute
of
Technology,
1970.
I
am
an
analytical
chemist.
I
earned
the
Certified
Hazardous
Materials
Manager
certification
in
1991
and
have
kept
my
certification
current.
I
consider
my
education
and
CHMM
certification
ample
evidence
to
support
my
claim
to
be
an
Environmental
Professional.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
212
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Frick,
John
H
Comment
Number:
0173
Excerpt
Number:
2
Excerpt
Text:
The
credential
I
work
with­
the
Certified
Hazardous
Materials
Manager
(
CHMM)­
is
a
professional
credential
that
is
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
and
adheres
to
the
stringent
ASTM
E1929­
98
Standard
Practice
for
Assessment
of
Certification
Programs
for
Environmental
Professionals.
CHMMs
are
bound
by
their
Code
of
Ethics
to
practice
only
within
their
areas
of
expertise.
Furthermore,
all
CHMMs
are
required
to
remain
current
by
qualifying
for
recertification
every
five
years.

A
Master­
Level
CHMM
must
have
an
appropriate
accredited
baccalaureate
or
higher
degree
and
at
least
seven
(
7)
years
of
relevant
experience,
which
exceeds
the
experience
level
in
this
proposal.
We
would
be
pleased
to
see
EPA
recognize
the
Master­
Level
CHMM
as
a
means
of
qualifying
for
the
Environmental
Professional,
along
with
the
licenses
and
registrations
already
included
in
the
proposed
rules.
If
it
cannot
be
adopted
at
this
late
date
into
the
rule
itself,
we
would
be
pleased
to
see
reference
to
the
Master­
Level
CHMM
as
a
qualifying
credential
in
EPA
guidance
materials.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
213
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
National
Association
of
Environmental
Professionals
Comment
Number:
0193
Excerpt
Number:
1
Excerpt
Text:
This
definition
excludes
many
existing
"
Nationally
Recognized"
Environmental
Professionals
such
as
the
"
Certified
Environmental
Professional"
designation
offered
by
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP)
www.
abcep.
org.
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.
Those
individuals
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.

The
new
Federal
"
All
Appropriate
Inquiries"
standard
requires
"
an
inquiry
by
an
environmental
professional."
"
Environmental
Professional"
has
a
lengthy
definition
under
the
proposed
rule.
An
Environmental
Professional
is
generally
defined
as
"[
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
to
the
surface
or
subsurface
of
a
property."
Specifically,
an
"
Environmental
Professional"
includes
persons
that
possess
a
professional
engineering,
professional
geologist
or
state/
federal
environmental
assessment
licenses
and
three
years
of
experience,
a
Bachelor's
degree
in
engineering,
environmental
science
or
earth
science
and
5
years
of
experience,
or
a
Bachelor's
degree
in
a
non­
engineering,
science
or
environmental
discipline
and
10
years
of
experience.

In
addition
to
those
noted
in
the
proposed
rule,
the
definition
of
"
Environmental
Professional"
should
include
those
individuals
who
have
qualified
as
"
Certified
Environmental
Professional"
under
the
auspices
of
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP).
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.
Those
individuals
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.

Minimum
requirements
for
CEP
certification
include:
214
­
The
applicant
must
possess
a
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and/
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.
Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.

­
A
Master's
Degree
may
be
substituted
for
one
year
of
the
nine
years
of
professional
experience
and
a
Doctorate
may
be
substituted
for
two
of
the
nine
years
of
professional
experience.
However,
no
such
substitution
will
apply
to
the
requirement
for
the
five
years
in
responsible
charge
and/
or
responsible
supervision.
Degrees
claimed
must
be
from
fully
accredited
college
or
university
(
certified
transcripts
are
required).
The
written
portion
of
the
examination
consists
of
mandatory
and
elective
essay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.

­
The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
NAEP
and
adopted
by
the
Academy;

These
certification
requirements
exceed
those
proposed
by
the
U.
S.
Environmental
Protection
Agency
(
USEPA)
and
therefore
should
be
judged
as
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
designation.

We
understand
the
USEPA's
concern
about
not
having
the
resources
or
staff
to
verify
third­
party
certification
programs
but
the
certification
of
such
programs
is
not
part
of
the
USEPA's
mission.
There
are
already
third­
party
certification
organizations
like
the
International
Standards
Organization
(
ISO)
that
independently
review
and
evaluate
the
CEP
program.
The
ABCEP's
CEP
Program
is
third­
party
certified
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
www.
cesb.
org.

CESB
is
an
independent,
voluntary
membership
body
created
for
its
member
organizations
who
recognize,
through
specialty
certification,
the
expertise
of
individuals
practicing
in
engineering
and
related
fields.
Its
creation
on
April
24,
1990
was
the
culmination
of
organizing
work
by
volunteers
from
among
the
130
attendees
(
23
organizations
represented)
who
participated
in
the
April
1988
National
Conference
on
Engineering
Specialty
Certification.

CESB,
as
an
accrediting
body,
provides:

­
basic
criteria
and
guidelines
for
the
establishment
and
operation
of
specialty
certification
programs
for
engineers,
technologists,
technicians,
and
related
scientific
­
it
serves
as
a
recognizing
body
for
organizations
that
certify
individuals
215
­
it
represents
its
members
in
communications
and,
when
appropriate,
in
negotiations
with
public
and
private
agencies,
groups,
and
individuals
with
respect
to
matters
of
common
interest
­
and
it
informs
employers,
specifiers,
public
officials,
the
public,
and
engineering
and
related
practitioners
of
the
benefits
of
specialty
certification.

We
ask
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
Certified
Environmental
Professional.

Response:
Please
see
response
to
comment
number
0405,
excerpt
1.

Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
4
Excerpt
Text:
Definition
of
Environmental
Professional
Finally,
we
believe
the
definition
of
"
environmental
professional"
should
be
reserved
for
those
persons
properly
trained
and
licensed
to
perform
environmental
assessments,
including
individuals
who
have
earned
professional
designations
in
the
environment
assessment
industry.

Some
real
estate
professionals
have
taken
courses
such
as
the
joint
Appraisal
Institute/
National
Association
of
Environmental
Risk
Auditors
(
NAERA)
seminar
entitled
Introduction
to
Environmental
Issues
for
Real
Estate
Appraisers.
In
this
seminar
students
learn
to
use
forms
such
as
the
Appraisal
Institute's
Property
Observation
Checklist
and
NAERA's
Uniform
Environmental
Risk
Screening
Report.
Some
have
chosen
to
pursue
certification
in
this
area
through
courses
and
other
requirements
offered
by
NAERA
and
the
National
Registry
of
Environmental
Professionals.

Response:
Please
see
responses
to
comment
0173,
excerpt
2.

Commenter
Organization
Name:
GAEP
Comment
Number:
0224
Excerpt
Number:
1
Excerpt
Text:
This
definition
excludes
many
existing
"
Nationally
Recognized"
Environmental
Professionals
such
as
the
"
Certified
Environmental
Professional"
designation
offered
by
the
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP)
www.
abcep.
org.
ABCEP
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
216
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.

GAEP
agrees
with
NAEP's
suggestion
that
the
proposed
"
All
Appropriate
Inquires"
definition
of
"
Environmental
Professional"
should
include
individuals
that
have
been
awarded
the
CEP
credential.
The
proposed
"
All
Appropriate
Inquiries"
definition
of
"
Environmental
Professional"
includes
persons
that
possess
a
professional
engineering,
professional
geologist
or
state/
federal
environmental
assessment
licenses
and
three
years
of
experience,
a
Bachelor's
degree
in
engineering,
environmental
science
or
earth
science
and
5
years
of
experience,
or
a
Bachelor's
degree
in
a
non­
engineering,
science
or
environmental
discipline
and
10
years
of
experience.

The
Academy
of
Board
Certified
Environmental
Professionals
(
ABCEP)
administers
the
Certified
Environmental
Professional
(
CEP)
Program
which
provides
environmental
professionals
who
possess
special
qualifications
of
education,
experience,
and
accomplishment
with
the
opportunity
to
be
judged
by
a
board
of
peers.
Those
individuals
awarded
the
Certified
Environmental
Professional
credential
may
use
the
designation
"
CEP"
after
their
name.

Minimum
requirements
for
CEP
certification
include:

­
A
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and/
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.
Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.
A
Master's
Degree
may
be
substituted
for
one
year
of
the
nine
years
of
professional
experience
and
a
Doctorate
may
be
substituted
for
two
of
the
nine
years
of
professional
experience.
However,
no
such
substitution
will
apply
to
the
requirement
for
the
five
years
in
responsible
charge
and/
or
responsible
supervision.
Degrees
claimed
must
be
from
fully
accredited
college
or
university
(
certified
transcripts
are
required).
The
written
portion
of
the
examination
consists
of
mandatory
and
elective
essay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.
The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
NAEP
and
adopted
by
the
Academy;

These
certification
requirements
exceed
those
proposed
by
the
U.
S.
Environmental
Protection
Agency
(
USEPA)
and
therefore
should
be
judged
as
at
least
equivalent
to
a
Professional
Engineer
or
Professional
Geologist
designation.

We
understand
the
USEPA's
concern
about
not
having
the
resources
or
staff
to
verify
third­
party
certification
programs
but
the
certification
of
such
programs
is
not
part
of
the
USEPA's
mission.
There
are
already
third­
party
certification
organizations
like
the
217
International
Standards
Organization
(
ISO)
that
independently
review
and
evaluate
the
CEP
program.
The
ABCEP's
CEP
Program
is
third­
party
certified
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
www.
cesb.
org.

We
ask
that
the
definition
of
an
"
Environmental
Professional"
under
the
"
All
Appropriate
Inquiries"
standard
be
revised
to
include
an
individual
designated
as
a
Certified
Environmental
Professional.

Response:
Please
see
response
to
comment
0405,
excerpt
1.

Commenter
Organization
Name:
Thunderbird
Chapter
ACHMM
Comment
Number:
0231
Excerpt
Number:
1
Excerpt
Text:
The
Thunderbird
Chapter
urges
EPA
to
support
those
professional
designations
that
are
third
party
accredited
as
being
the
designations
that
are
the
most
credible
and
viable
for
the
above­
mentioned
professional
service
provisions.
As
you
are
aware,
third
party
accreditation
indicates
professional
acceptance
and
stature
with
the
associated
accrediting
party's
initial
qualifications
requirements,
continuing
educational
requirements,
and
with
the
inclusive
"
Code
of
Ethics"
that
the
professional
association
endorses.
The
Institute
of
Hazardous
Materials
Managers,
which
provides
the
Certified
Hazardous
Materials
Managers
certification
to
individuals,
is
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB).
Other
well­
known
CESB­
accredited
professional
programs
include
the
Certified
Industrial
Hygienist
(
CIH),
the
Certified
Safety
Professional
(
CSP),
the
Qualified
Environmental
Professional;
(
QEP),
and
the
Diplomate
Environmental
Engineer.
The
CESB
adheres
to
ASTM
E1929­
98,
the
stringent
standard
for
personal
certification
accrediting
requirements.
This
accreditation
is
very
similar
to
the
accreditation
EPA
is
requiring
in
the
proposed
rule
language
from
the
University
and
College
system,
and
should
be
included
to
ensure
that
any
professionals
who
have
many
years
of
experience
in
performing
due
diligence
inquiries,
but
who
may
not
have
the
required
educational
background,
are
not
unfairly
deprived
of
their
livelihood.
As
such,
we
request
that
you
add
the
proposed
language
to
the
rule.
Should
you
have
any
questions
or
request
any
information
please
feel
free
to
contact
either
the
Academy
or
myself.

Response:
Please
see
response
to
comment
number
0173,
excerpt
2.

Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
4
Excerpt
Text:
Paragraph
(
2)(
iv)
also
should
include
certifications
from
relevant
professional
218
organizations
as
a
qualification
for
the
"
grandfathering"
provision
of
AAI.
Therefore,
I
propose
the
following
wording
for
this
paragraph:

As
of
the
date
of
promulgation
of
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education,
or
be
certified
in
the
management
of
hazardous
materials
or
other
relevant
field
of
practice
by
a
third­
party
accredited
professional
organization,
and
have
ten
(
10)
years
of
full­
time
relevant
experience.

Response:
Please
see
response
to
comment
number
0142,
excerpt
1.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
1
Excerpt
Text:
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).
And
(
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),
or
a
current
certification
issued
through
a
program
that
is
compliant
with
ASTM
E1929­
98
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria
and
have
the
equivalent
of
three
(
3)
years
of
fulltime
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
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience.

The
Need
for
Consistency
Between
EPA
Regulatory
Programs
The
concerns
expressed
herein
are
similar
to
those
expressed
by
IPEP
to
EPA
in
December
2003
in
response
to
the
October
29,
2003
Notice
of
Data
Availability
("
NODA")
regarding
its
pre­
rulemaking
associated
with
the
qualifications
of
environmental
professionals
who
are
to
be
designated
for
certifying
specific
tasks
at
219
RCRA­
permitted
treatment,
storage,
and
disposal
(
TSD)
facilities
for
hazardous
waste.
That
proposed
rulemaking
is
designated
the
RCRA
Burden
Reduction
Rule,
Docket
ID
Number
RCRA­
1999­
0031.
In
brief,
IPEP
is
concerned
that
EPA
may
be
considering
inconsistent
regulatory
approaches
to
establishing
what
qualifications
an
environmental
professional
bring
to
their
compliance­
related
work.

Although
IPEP
endorses
the
approach
embodied
in
the
proposed
rule
to
limit
the
field
of
eligible
persons
to
perform
AAIs
to
those
qualified
and
experienced
in
the
performance
of
real
property
environmental
site
assessments
(
ESAs),
the
definition
of
Environmental
Professional
in
the
proposed
rule
is
overly
restrictive
in
some
aspects
and
lacking
in
linkage
to
nationally
recognized
credentialing
standards
and
generally
accepted
independent
accreditation
criteria,
including
adherence
to
codes
of
ethical
conduct
and
requirements
for
continuing
professional
development.
Adoption
of
the
modifications
recommended
in
this
comments
letter,
which
are
similar
to
those
previously
recommended
to
EPA
in
April
2002
concerning
the
pending
Burden
Reduction
Rule,
will
better
serve
both
the
AAI
stakeholders
and
the
public
at
large.
Our
proposed
modifications
would
result
in
the
utilization
of
an
existing
national
credentialing
(
licensure
and
certification)
and
accreditation
system
for
environmental
professionals,
and
would
place
the
burden
of
demonstrating
appropriate
competence,
not
just
minimum
qualifications
and
experience,
for
performing
AAI
work
on
those
offering
such
services
to
the
satisfaction
of
the
potential
users
of
such
services.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
ABCEP
Comment
Number:
0271
Excerpt
Number:
2
Excerpt
Text:
You
want
persons
with
the
appropriate
background
in
terms
of
education,
experience
and
skills.
One
way
to
achieve
this
is
to
recognize
those
organizations
whose
members
are
certified,
and
are
accredited
by
recognized
third­
party
certification
organizations.
Members
of
these
organizations
are
certified
to
have
met
nationally­
recognized
220
standards.
Not
all
recognized
credentials
are
the
same
and
to
treat
them
as
such
will
not
ultimately
meet
the
Agency's
goal
of
protecting
human
health
and
the
environment.

The
definition
should
be
revised
to
recognize
individuals
with
relevant
skills,
background,
and
experience,
whose
expertise
is
required
tq>
be
kept
current.
The
definition,
as
written,
excludes
many
"
nationally­
recognized"
accredited
organizations,
including
the
Academy
of
Board
Certified
Environmental
Professionals.
A
BCEP
administers
the
Certified
Environmental
Professional
(
CEP)
program,
providing
environmental
professionals
with
qualifications
of
education,
experience
,
and
accomplishment
a
nationally­
recognized
credential.
These
individuals
are
judged
by
a
board
of
peer
£
,
and
must
maintain
their
skills
through
formal
training,
and
work
experience.

The
CEP
program
began
in
1979,
in
response
to
the
need
for
interdisciplinary
certification
in
the
environmental
field.
CEPs
include
mid­
level
and
senior
environmental
specialists
in
government,
military,
educators,
consultants,
plant
operators,
and
industry.
The
program
is
fully
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB).
Among
the
advantages
to
customers
using
a
CEP
is
assurance
of
confidence
in
the
professional's
services
addressing
a
broad
array
of
environmental
planning,
analysis,
education
and
documentation.
It
provides
an
assurance
of
engaging
competent
environmental
professionals.

Minimum
requirements
for
CEP
certification
include:

­
The
applicant
must
possess
a
Bachelor's
Degree
and
a
minimum
of
nine
years
of
applicable
professional
environmental
experience
.
Five
of
the
nine
years
must
be
in
a
position
of
responsible
charge
and
or
responsible
supervision.
Responsible
charge
is
defined
as:
the
direction
of
environmental
work
by
an
environmental
professional
to
the
extent
that
successful
completion
of
the
work
is
dependent
on
the
decisions
made
by
the
environmental
professional
without
advice
or
approval
of
others.
Responsible
supervision
is
defined
as:
the
supervision
of
another
professional
person's
work
by
an
environmental
professional
to
the
extent
that
the
environmental
professional
assumes
the
professional
responsibility
for
the
work.

The
written
portion
of
the
exam
consists
of
mandatory
and
elective
assay
questions
designed
to
test
the
communication
skills
and
technical
experience
of
the
applicant.
The
exam
is
reviewed
independently
by
a
team
of
seven
peer
reviewers.

The
applicant
must
subscribe
to
the
ABCEP
Code
of
Ethics
and
Standards
of
Practice
for
Environmental
Professionals,
established
by
the
National
Association
of
Environmental
Professionals
(
www.
naep.
org),
and
adopted
by
ABCEP.

The
applicant
must
document
evidence
of
continuing
professional
development,
including
continuing
education,
and
work
experience
on
a
yearly
basis
to
maintain
the
CEP
credential.
221
The
ABCEP
CEP
program
is
third­
party
accreditated
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
(
CESB)
(
www.
cesb.
org).,
meeting
nationally­
recognized
credential
standards.
The
CESB
is
an
independent,
voluntary
membership
organizations
created
for
its
member
organization
who
recognize,
through
specialty
certification,
the
expertise
of
individuals
practicing
in
engineering
and
scientific
related
fields.

The
certification
requirements
of
ABCEP
currently
exceed
those
stated
in
the
proposed
rule,
and
should
be
judged
as
at
least
equivalent
to|
that
of
a
Professional
Engineer
or
Professional
Geologist.
We
request
that
the
definition^
of
"
Environmental
Professional"
be
revised
to
include
persons
recognized
as
Certified
Environmental
Professionals
(
CEP),
and
that
the
definition
be
revised
to
assure
that
persons
with
appropriate
background
and
training
be
specified
in
this
mle
for
the
purpose
of
conducting
All
Appropriate
Inquiries.

Response:
Please
see
response
to
comment
number
0173,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0275
Excerpt
Number:
1
Excerpt
Text:
I
support
the
Academy
of
Certified
Hazardous
Materials
Managers
position
on
the
AAI
language.
They
have
provided
a
letter
of
basic
support.

Response:
Please
see
response
to
comment
number
0173,
excerpt
2.

Commenter
Organization
Name:
Stipe,
Roderic
Comment
Number:
0295
Excerpt
Number:
1
Excerpt
Text:
In
my
own
particular
case,
I
hold
a
degree
in
business
with
a
minor
in
chemistry
from
an
accredited
state
university.
I
started
working
in
the
environmental
field
while
in
college
and
have
over
20
years
of
experience
working
as
a
consultant,
environmental
auditor,
environmental
manager,
and
corporate
manager
of
environmental
compliance.
I
am
both
a
CHMM
and
QEP.
I
adhere
to
the
code
of
ethics
set
forth
by
both
organizations
and
know
that
I
am
bound
to
work
within
the
limitations
of
my
technical
expertise
and
experience.
As
long
as
I
continue
to
do
so,
I
am
as
qualified
as
anyone
to
be
considered
an
Environmental
Professional.
I
hope
the
EPA
will
recognize
that
CHMMs
in
good
standing
and
integrity
can
serve
a
role
in
this
industry
equally
as
well
as
most
licensed
professionals.

Response:
Please
see
response
to
comment
number
0142,
excerpt
1.
222
Commenter
Organization
Name:
Sershen,
Dennis
Comment
Number:
0311
Excerpt
Number:
1
Excerpt
Text:
Further
I
would
like
to
make
these
additional
comments:
As
a
environmental
and
safety
professional
in
private
industry
for
23
years,
I
strongly
feel
that
it
is
time
for
EPA
and
others
involved
in
rulemaking
to
recognize
and
seriously
include
input
and
direction
from
the
professional
members
of
ACHMM
and
make
a
positive
move
to
include
the
high
standards
of
this
professional
organization.

Response:
Please
see
responses
to
comment
number
0173,
excerpt
2.

Commenter
Organization
Name:
Howell,
Mark
Comment
Number:
0336
Excerpt
Number:
1
Excerpt
Text:
I
strongly
recommend
that
the
Certified
Professional
Geologist
(
CPG)
credential
issued
by
the
American
Institute
of
Professional
Geologists
(
AIPG)
be
explicitly
listed
as
an
accepted
criterion
for
qualification
as
an
Environmental
Professional
(
EP).

I
practice
in
the
state
of
Ohio,
which
does
not
have
a
registration
or
licensure
program
for
professional
geologists.
In
lieu
of
state
licensure,
I
am
a
member
of
AIPG
because
of
the
recognized
quality
of
their
CPG
credential.
Its
recognition
is
founded
on
a
high
standard
of
practice
and
experience
that
is
required
to
obtain
a
CPG
title.
The
education
and
experience
requirements
for
the
CPG
currently
meet
or
exceed
those
of
all
state
registration
and
licensure
programs.
It
is
recognized
overseas
by
the
European
Federation
of
Geologists
and
by
the
Canadian
and
Australian
securities
commissions.

As
the
nation's
largest
organization
for
certifying
professional
geologists,
AIPG's
certification
qualifications
are
not
frequently
or
periodically
reviewed
or
changed.
Since
establishing
baseline
qualifications
for
granting
the
CPG
title
in
1963,
AIPG
has
maintained
a
high
standard
for
the
title.

The
rule,
as
it
is
written,
will
place
a
burden
upon
individual
geologic
professionals
to
apply
for
the
EP
credential,
and
upon
the
USEPA
to
process
and
verify
the
accuracy
and
completeness
of
each
application.
Much
of
this
burden
will
be
alleviated
by
including
the
CPG
in
the
definition
of
the
EP.
This
will
allow
the
USEPA
to
be
assured
of
the
consistent
application
of
high
standards
in
those
states
that
without
registration
or
licensure
programs.
Administrative
burdens
will
be
shifted
to
AIPG's
established
screening
process,
allowing
the
USEPA
to
implement
their
own
screening
program
more
efficiently.

The
inclusion
of
professional
geologists
in
the
proposed
definition
of
Environmental
223
Professional
demonstrates
that
the
rule
making
committee
and
the
USEPA
recognize
the
importance
of
the
judgment,
knowledge,
and
experience
of
our
these
professionals
in
evaluating
environmental
impacts
to
properties
of
interest.
No
other
profession
is
equally
qualified
to
evaluate
the
impacts
of
historical
operations
on
a
soil,
sediment,
and
ground
water.
It
is
therefore
critical
that
the
profession
and
its
most
widely
recognized
professional
credential
be
explicitly
included
in
the
Environmental
Professional
definition.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
case
where
a
state
or
tribal
government
does
not
have
a
professional
licensing
or
certification
program,
the
final
rule
provides
other
options
for
qualifying
as
an
environmental
professional
(
i.
e.,
experience
and
educational
requirements).
EPA
does
not
have
an
environmental
professional
licensing
program
and
has
no
plans
to
establish
such
a
program.
The
commenter
is
incorrect
in
asserting
that
in
those
cases
where
a
state
224
does
not
have
a
licensing
program
for
professional
geologies,
"
the
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application."

Also,
in
the
final
rule,
EPA
is
not
recognizing
private,
non­
governmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Such
an
approach
is
not
necessary
and
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
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
2
Excerpt
Text:
Under
the
definition
of
"
Environmental
Professional"
in
Subpart
B,
§
312.10(
2),
the
Grand
Rapids
Area
Chamber
of
Commerce
recommends
the
addition
of
certifications
from
the
following
organizations
as
sufficient
to
meet
the
"
Environmental
Professional"
standard:
­
As
a
"
Qualified
Environmental
Professional"
by
the
Institute
of
Professional
Environmental
Practice;
­
Academy
of
Certified
Hazardous
Materials
Managers;
or
­
National
Registry
of
Environmental
Professionals.
225
These
organizations
are
all
nationally
recognized.
Requirements
for
certification
include
a
baccalaureate
or
higher
degree
related
to
science
and
engineering.
In
addition,
an
applicant
for
certification
under
these
organizations
must
possess
4
to
15
years
of
experience.
These
requirements
for
certification
are
entirely
consistent
with
the
other
qualifications
that
the
proposed
§
312.10(
2)
currently
finds
sufficient
to
meet
the
"
Environmental
Professional"
standard.

Response:
Please
see
response
to
comment
number
0173,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0348
Excerpt
Number:
1
Excerpt
Text:
The
regulation
should
either
drop
any
reference
to
PEs
or
PGs,
or
be
inclusive
of
other
relevant
3rd­
party
certified
environmental
certifications
such
as
CEP,
QEP,
REM.
CHHP,
CIH,
etc.
Not
only
are
these
certifications
more
relevant
than
a
PE,
they
are
accessible
to
persons
of
almost
any
educational
background,
are
supported
by
rigorous
referencing
and
testing,
and
include
even
stricter
codes
of
ethics
than
required
by
state
licensing
boards.

Response:
Please
see
response
to
comment
number
0336,
excerpt
1.
226
2.1.6
Revise
Educational
Requirements
to
Allow
Individuals
with
Substantial
Relevant
Work
Experience
to
Qualify
as
EPs
Commenter
Organization
Name:
CRA
Comment
Number:
0030
Excerpt
Number:
1
Excerpt
Text:
My
problem
with
the
AAI
is
the
requirements
necessary
to
complete
a
Phase
I
ESA.
Take
for
instance
a
person
that
has
14
years
experience
in
completing
Phase
I
ESAs;
however,
that
person
does
not
have
a
BA/
BS
degree.
Phase
I's
are
not
learned
in
college.
Experience
is
the
best
asset
in
conducting
Phase
I's.
Based
on
the
Inquiry,
that
person
is
no
longer
able
to
perform
their
job,
which
has
become
their
livelihood.
I
can
understand
that
a
peer
review
would
be
necessary,
which
would
be
acceptable
for
both
parties
Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Creative
Project
Management,
Inc
Comment
Number:
0033
Excerpt
Number:
1
Excerpt
Text:
227
I
have
been
doing
Phase
One's
for
more
than
15
years.
Based
on
what
I
read
in
the
new
law
it
sounds
to
me
like
I
will
not
be
considered
as
an
"
environmental
professional"
as
I
don't
have
a
degree.
We
do
quality
work
and
provide
the
community
with
a
needed
service.
I
can't
afford
to
go
out
and
hire
a
"
environmental
professional"
so
you
are
about
to
put
me
out
of
business.
I
don't
really
think
that
is
your
intent.
Please
consider
modification
to
include
"
registered
architects
or
engineers
with
10
years
of
full
time
relevant
experience"

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Connolly,
Kelly
Comment
Number:
0035
Excerpt
Number:
1
Excerpt
Text:
My
problem
with
the
AAI
is
the
requirements
necessary
to
complete
a
Phase
I
ESA.
Take
for
instance
a
person
that
has
14
years
experience
in
completing
Phase
I
ESAs;
however,
that
person
does
not
have
a
BA/
BS
degree.
Phase
I's
are
not
learned
in
college.
Experience
is
the
best
asset
in
conducting
Phase
I's.
Based
on
the
Inquiry,
that
person
is
no
longer
able
to
perform
their
job,
which
has
become
their
livelihood.
I
can
understand
that
a
peer
review
would
be
necessary,
which
would
be
acceptable
for
both
parties.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Burns,
J.
David
Comment
Number:
0039
Excerpt
Number:
1
Excerpt
Text:
I
do
not
have
a
degree
but
my
back
ground
has
been
completey
Phase
I
site
assessments
under
ASTM
standards.
With
20
years
of
experience
I
would
say
and
believe
that
anyone
including
the
clients
I
have
served
would
classify
me
as
an
environmental
professional.
I
believe
that
the
"
Grand
father"
should
include
persons
with
my
back
ground
"
experience"
be
considered
Environmental
Professional.
I
work
under
the
supervision
of
degreed
personnel
and
run
the
Phase
I
activities
completely
from
start
to
finish.
I
have
more
experinece
in
the
area
of
visual
on­
site
inspection
than
the
degreed
personnel
that
I
report
to
(
who
never
goes
to
the
field).
please
consider
expansion
of
the
"
grand
father"
based
on
experience
and
not
just
because
some
one
went
to
some
school
for
a
few
years.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.
228
Commenter
Organization
Name:
Gasper,
Matthew
P
Comment
Number:
0041
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.8.1
­
The
grandfather
clause
is
too
stringent
Excerpt
Text:
Each
of
the
requirements
state
that
the
individual
performing
the
assessment
must
have
a
four
year
college
degree,
and
a
scaled
full
time
employment
experience
in
order
to
sign
the
reports.
All
that
sounds
good
on
the
surface,
however,
the
rule
does
not
address
individuals
like
myself,
and
I
am
sure
many
others
throughout
the
United
States.
However,
the
way
the
proposed
rule
is
written
an
individual
with
an
accredited
degree
in
anything
at
all,
and
ten
years
working
experience
would
qualify
as
an
environmental
professional.

My
situation
is
that
I
have
been
conducting
environmental
assessments
for
the
past
17
years,
and
been
in
business
for
myself
since
1996
(
tax
id
59­
3390392).
I
do
not
have
my
college
degree.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
None
Comment
Number:
0043
Excerpt
Number:
1
Excerpt
Text:
EPA
should
strike
the
degreed
requirement,
since
ESA
Phase
I,
II,
and
III
investigations
and
corrective
actions
are
not
currently
taught
in
unviersites
and/
or
colleges
across
the
country,
since
RECOGNIZED
ENVIRONMENTAL
CONDITIONS
(
REC)
are
SPECIFIC
SITE
CONDITIONS
and
are
not
always
reproduced
accuratlely.
Basically,
one
person
may
not
see
a
REC
as
the
another
and
the
other
person
may
need
more
evaluation,
to
determine
what
REC
presently
exists
on
a
proeperty,
and
if
any,
its
impact
to
the
environment,
human
health,
adjacent
properties
and
more
importantly
the
property
value.
The
resolve
to
the
issue
is
to
have
some
type
of
profcientcy
test
to
detemine
if
the
proposed
EP
is
competent,
just
like
the
ACM
and
LBP
regulations.
Sure
the
EPA
could
set
prerequirmentas
to
sit
for
the
test,
but
I
do
not
think
the
requirements
should
be
set
at
5­
years
experinece
plus
an
env.
sciences
degree,
but
could
be
demostrated
practice
in
the
field
of
environmental
assessment/
investigation
of
residential/
commercial/
industrial/
brownfield
properties.
Please
allow
undegreed
persons
the
opportunity
to
test.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Brenn
Comment
Number:
0055
229
Excerpt
Number:
1
Excerpt
Text:
I
have
been
an
environmental
consultant
for
the
last
ten
years
without
a
degree
as
a
professional
engineer
and
have
completed
many
Phase
I
and
Transaction
Screenings
for
government
guaranteed
loans;
such
as
USDA
Farm
Service
Agency,
the
Small
Business
Administration
and
Farmer
Mac
loans
associated
with
FDIC
banks
and
mortgage
companies.

I
am
a
Certified
Environmental
Inspector
with
the
Environmental
Assessment
Association.
I
am
a
certified
real
estate
appraiser
licensed
in
Nebraska,
South
Dakota
and
Wyoming.
I
am
also
approved
fee
inspector
for
HUD,
an
approved
fee
appraiser
for
FHA
and
an
approved
consultant
for
FHA.

The
above
mentioned
back
ground
in
my
opinion
has
given
me
training
to
assist
in
performing
Phase
I
and
Site
Assessments
along
with
my
attendance
in
several
environmental
schools
offered
by
different
agencies
specializing
in
environmental
education.

There
is
no
doubt
in
my
mind
that
when
the
final
draft
is
approved
that
all
individuals,
professional
and
non
professionals
will
be
required
to
attend
further
education
in
meeting
the
new
requirements.
I
have
no
problem
with
this.
However,
I
do
believe
that
I
should
be
recognized
and
given
equal
status.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Brewer,
Jonathan
Comment
Number:
0069
Excerpt
Number:
1
Excerpt
Text:
I
feel
that
the
regulation
as
written,
does
not
take
into
account
professionals
who
have
been
doing
Phase
1
Site
Assessments
and
the
years
of
practical
experience
those
individuals
have
obtained.
I
therefore
propose
the
following
addition
under
Section
III
D;
"
or,
An
individual
who
through
the
combination
of
professional
education
and
practice
has
accumulated
an
environmental
industry
history
of
practical
application
and
reporting
of
environmental
issues
and
conditions
of
potential
environmental
risk
for
an
accumulated
period
of
10
years
or
more.
Those
individuals
as
noted,
and
who
are
in
good
professional
standing
as
of
the
date
of
the
proposed
regulation
herein,
shall
be
grandfathered
into
this
regulation
as
"
qualfied
practitioners".
Those
who
do
not
qualify
of
the
date
posted
for
enactment
as
listed
herein,
shall
adhere
to
the
"
new"
standards
of
the
date
posted."

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.
230
Commenter
Organization
Name:
Tucciarone,
L
W
Comment
Number:
0079
Excerpt
Number:
2
Excerpt
Text:
Section
312.10
definition
of
an
"
Environmental
Professional"
fails
to
recognize
a
multitude
of
persons
who
have
long
worked
in
the
environmental
field
with
state
accepted
certifications.
I
have
been
a
licensed,
professional
forester
since
1986.
Many
people
in
the
Environmental
field
with
college
degrees
in
the
late
70'
s
and
early
1980'
s
received
Associate
degrees.
These
degrees
combined
with
hard
work
and
environmental
professionalism
could
take
an
individual
very
far
and
have
served
me
with
a
rewarding
career.
I
strongly
disagree
with
the
proposed
changes
because
they
fail
to
recognize
those
who
may
find
it
hard
to
go
back
to
school
at
the
present
time
due
to
family
burden
or
financial
situation.
Often
changes
in
regulations
are
necessary
to
continue
excellence
in
a
field,
but
I
don't
think
regulations
should
take
away
or
limit
the
ability
of
a
professional
to
continue
work
in
a
field
that
has
provided
a
career
for
them,
and
excellent
service
for
those
who
need
it.

Response:
Please
see
responses
to
comment
numbers
0030
(
excerpt
1)
and
0099
(
excerpt
1).

Commenter
Organization
Name:
None
Comment
Number:
0087
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.8.3
­
The
proposed
minimum
requirements
will
have
a
negative
impact
on
the
ESA
industry,
small
businesses,
and
the
real
estate
market
Excerpt
Text:
I
think
that
it
is
wrong
to
disregard
the
many
years
of
experience
that
lots
of
professionals
have
just
because
they
do
not
have
a
college
degree.
There
should
be
some
provision
in
this
regulation
to
allow
non­
degreed
professionals
with
a
certain
amount
of
professional
experience
in
the
field
to
be
grandfathered
in
as
"
Environmental
Professionals".
The
way
this
portion
of
the
regulation
is
now
written
is
unfair
and
is
going
to
cost
alot
of
highly
qualified
and
experienced
people
to
lose
their
livelihoods.
It
is
essential
that
a
grandfathering
provision
be
included
in
this
regulation.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
1
Excerpt
Text:
The
requirement
for
the
"
environmental
professional"
(
EP)
being
a
PE,
PG
or
otherwise
degreed
person
regardless
of
the
minimum
amount
of
experience
with
ESAs,
puts
an
231
undue
burden
on
those
persons
with
ONLY
technical
training
that
have
been
performing
ESAs
within
good
customary
standards
for
many
years.
A
"
grandfather
clause"
which
qualifies
an
individual
as
an
environmental
professional
based
on
significant
years
of
experience
alone
should
be
allowable!
The
criteria
for
proof
of
experience
should
also
be
reasonable
and
not
become
another
undue
burden
or
impossible
task
to
accomplish.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Duncklee,
Drew
Comment
Number:
0101
Excerpt
Number:
1
Excerpt
Text:
I
have
performed
over
600
phase
I
assessments
over
the
last
13
years.
I
do
not
have
a
college
degree
and
if
I
cannot
have
the
designation
of
an
environmental
professional
as
it
is
defined
in
the
rule,
then
my
career
might
be
hindered
dramatically.
I
have
a
family
to
take
care
of
I
feel
that
this
is
unfair
for
people
that
have
performed
these
studies
for
many
years.
Could
the
EPA
please
reconsider
letting
people
without
college
degrees
but
with
many
years
experience
in
the
field
qualify
for
this
designation?

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Intermountain
Environmental
Cons
Comment
Number:
0106
Excerpt
Number:
1
Excerpt
Text:
My
concern
is
with
the
grandfather
clause
for
qualification
as
an
"
environmental
professional".

An
environmental
professional
is
a
person
with
a
depth
of
environmental
experience
that
allows
them
to
make
appropriate
judgments
based
on
available
data.
A
degree
in
music
or
accounting
does
little
to
enhance
that
person's
competence
in
environmental
issues.
If
the
degree
requirement
is
intended
as
a
demonstration
of
writing
skill,
I
would
suggest
that
over
ten
years
experience
and
hundreds
or
thousands
of
report
submissions
would
have
weeded
out
the
unskilled.

I
would
respectfully
submit
that
the
grandfather
clause
be
amended
to
provide
that
a
degree
is
not
required
provided
the
10
years
of
experience
is
valid
and
documented.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.
232
Commenter
Organization
Name:
McClatchy,
Billy
J
Comment
Number:
0124
Excerpt
Number:
1
Excerpt
Text:
Now
that
the
EPA
has
published
the
proposed
AAI
Rule
for
comment,
I
learn
that
under
the
proposed
Grandfather
clause,
since
I
do
not
possess
a
Baccalaureate
degree,
I
will
not
qualify
as
a
environmental
professional
under
EPA
AAI.
I
find
this
extremely
disturbing
and
potentially
injurious
to
my
future
in
the
industry.
I
do
not
understand
how
the
committee
can
determine
that
someone
of
my
training
and
overall
experience
can
be
considered
detrimental
to
the
industry
and
not
be
included
for
Grandfathering
which
would
in
no
way
diminish
or
distract
from
the
intent
of
the
Rule
to
establish
a
baseline
for
qualifications
for
new
and
future
environmental
professionals.
By
in
large,
most
persons
with
over
10
years
of
environmental
professional
experience
will
likely
enter
retirement
within
the
next
10
years
or
so
and,
therefore,
render
the
Grandfather
exemption
generally
mute.

Accordingly,
I
strongly
appeal
to
the
committee
to
reconsider
the
Grandfather
clause
to
allow
non­
degreed,
but
otherwise
qualified
persons
with
over
10
years
of
documented
training
and
experience
to
be
Grandfathered
as
a
environmental
professional
under
AAI.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Peyton,
J.
Comment
Number:
0216
Excerpt
Number:
1
Excerpt
Text:
Please
consider
revising
the
proposed
EP
definition
to
present
the
5
year
experience
criterion
FIRST,
then
others.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Daily,
Charles
Comment
Number:
0223
Excerpt
Number:
1
Excerpt
Text:
I
am
a
registered
architect
with
35
years
of
experience.
For
14
of
those
years,
I
have
been
president
of
CPM
Inc.
of
Memphis,
TN.
We
are
a
small
firm
that
has
completed
more
than
3,000
Property
Condition
and
Phase
One
Environmental
Site
Assessments
in
44
states.

I
am
a
Tennessee
registered
architect,
a
member
of
the
American
Institute
of
Architects
233
and
National
Council
of
Architectural
Registration
Boards.
I
do
not
have
a
degree.
I
became
an
architect
via
an
Equivalency
Examination
which
was
a
national
program.
You
have
advised
me
in
previous
correspondence
that
I
do
not
qualify
as
an
Environmental
Professional
in
accordance
with
AAI
proposed
regulations
because
I
do
not
have
a
degree.

Approximately
10
years
ago,
the
State
of
Tennessee,
like
several
other
states,
implemented
a
Professional
Privilege
Tax.
(
Tenn
Code
Ann
Section
67­
1701
et
seq.)
In
Section
62
of
this
law,
a
professional
is
defined
as
"
accountants,
engineers,
architects,
and
brokers
as
defined
in
Tenn
Code
Ann
Section
62­
13­
102(
2)".
For
10
years
I
have
received
an
annual
invoice
advising
me
that,
as
a
professional
in
the
State
of
Tennessee,
I
owe
the
state
$
400.
IE:
My
state
government
says
I
am
a
"
PROFESSIONAL"
and
I
have
paid
my
taxes
accordingly.

As
a
"
Professional"
with
15
years
of
experience
in
doing
Phase
One
Environmental
Site
Assessments,
I
consider
myself
qualified
as
an
Environmental
Professional.

Do
you
agree?

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
2
Excerpt
Text:
EP
Definition
312.10(
c)(
2)
By
specifically
requiring
specific
degrees
and
specialties,
this
creates
a
problem
for
experienced
site
assessors
who
may
already
be
working
in
the
field,
but
do
not
meet
the
proposed
requirements.
Not
only
would
they
be
forced
to
find
time
and
money
to
go
back
to
school
to
get
an
appropriate
degree
in
order
to
continue
in
their
line
of
work,
any
tuition
reimbursement
that
an
individual
might
receive
from
their
employer
for
this
purpose
would
now
be
taxable
by
requiring
these
specific
degrees.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.2.3
­
The
proposed
rule
is
inconsistent
with
the
Brownfields
Amendments
and/
or
the
ASTM
standard
Excerpt
Text:
II.
Examples
of
Weaknesses
in
the
Draft
Proposed
AAI
Rule
234
The
examples
set
forth
below
demonstrate
just
a
few
of
the
ways
the
draft
proposed
AAI
rule
weakens
current
protections
for
public
health
and
environmental
quality.
The
draft
proposed
AAI
rule
contains
numerous
inconsistencies
with
the
Brownfields
Law
and
provides
a
less
effective
process
for
assessing
the
condition
of
a
site
than
the
97
ASTM
standard.
A
comprehensive
description
of
the
inconsistencies
between
the
Brownfields
Law
and
the
draft
AAI
proposed
rule,
and
all
of
the
ways
in
which
the
proposed
rule
is
weaker
than
the
97
ASTM
standard
are
outside
the
scope
of
this
letter.
The
examples
are
provided
as
an
illustration
of
the
problem
with
the
draft
proposed
rule.

Response:
Responses
to
the
commenter's
specific
concerns
regarding
the
proposed
rule
are
provided
elsewhere
in
this
document.
EPA
can
only
respond
to
those
concerns
specifically
addressed
in
the
commenter's
letter
to
the
Agency.
EPA
cannot
respond
to
the
other
unnamed
"
inconsistencies
between
the
Brownfields
Law
and
the
draft
AAI
proposed
rule."
EPA
points
out
that
the
proposed
rule
addressed
each
of
the
ten
statutory
criteria
required
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act.
The
proposed
rule
also
provided
a
definition
of
environmental
professional
that
is
much
more
stringent
than
the
requirements
of
the
interim
standard.
EPA
disagrees
with
the
commenter's
assertion
that
the
proposed
(
and
final)
rule
"
provides
a
less
effective
process
for
assessing
the
condition
of
a
site
than
the
97
ASTM
standard."
In
fact,
it
is
EPA's
determination
that
the
final
rule
will
serve
to
in
increase
the
caliber
and
quality
of
site
investigations.

Commenter
Organization
Name:
NW
EnviroSearch
Comment
Number:
0272
Excerpt
Number:
2
Excerpt
Text:
We
whole
heartedly
approve
and
agree
with
the
entire
docket
except
for
the
definition
of
the
'
environmental
professional'
as
outlined
in
Section
312.10,
specifically
relating
to
the
'
grandfathering
clause'.

Our
disagreement
is
specifically
related
to
what
credentials,
educational
background
or
years
of
experience
are
deemed
sufficient
to
be
'
grandfathered'
under
these
new
rules.
It
appears
that
they
are
not
broad
enough
to
encompass
those
of
us
within
the
industry
that
were
entering
the
industry
at
an
early
time
when
there
were
no
formal
environmental
degree's
available.

Over
the
years
the
higher
education
System
has
increasingly
developed
environmental
related
degree's,
enhancing
the
competency
of
the
industry,
which
we
are
glad
to
see
that
the
EPA
is
integrating
into
their
competent
'
environmental
professional'
definition.

In
the
mid
to
late
1980'
s
the
Occupational
Safety
&
Health
Administration
adopted
new
rules
associated
with
the
environmental
industry
popularly
known
as
the
'
Haz­
woper'
standards
(
CFR
29,
Section
1910.120)
for
those
working
in
the
environmental
industry
to
have
'
40­
hours'
of
hazardous
waste
operations
training.
These
were
designed
to
improve
235
the
safety
of
those
working
in
the
industry.

Obviously,
with
any
new
rules,
there
is
a
'
grandfathering'
process
whereas
those
competent
persons
already
operating
within
the
industry
are
deemed
to
meet
or
comply
with
the
new
standards.
Those
same
persons
are
also
the
senior
and
more
experienced
persons
involved
in
providing
the4rairing
and
mentoring
to
others
within
the
industry.
OSHA
at
that
time
provided
a
'
grandfathering'
process
by
whereas
the
employers
had
the
responsibility
of
determining
if
their
employee's
were
competently
trained
and
experienced.
That
determination
process
then
resulted
in
persons
who
developed
the
public
training
programs
we
see
today
throughout
the
industry.

We
believe
that
this
precedent
applicable
to
the
environmental
industry
should
be
applied
to
the
process
of
defining
who
is
qualified
as
an
'
environmental
professional'
stated
in
Section
312.10
of
the
proposed
docket.

Surveys
completed
earlier
this
year
by
EDR,
Inc.
regarding
the
proposed
'
environmental
professional'
definition
found
that
within
the
industry
respondents,
19%
of
them
did
not
meet
the
proposed
definition
(
Source::
EDR,
Inc.
On­
line
TrendTrack
Survey,
April­
May
2004).

Recommendation:
With
over
21
years
of
experience
in
the,
industry,
we
have
developed
a
high
level
of
professional
competency,
yet
lack
the
educational
background
proposed.
By
implementing
this
proposed
standard
the
EPA
would
not
only
risk
the
closure
of
our
environmental
consulting
business,
but
risk
declaring
the
most
senior
and
experienced
persons
in
this
industry
as
not
competent,
as
they
would
not
meet
the
educational
criteria
due
to
the
lack
or
pertinent
education
available
in
those
early
years..
With
up
to
19%
of
the'
industry
potentially
impacted,
it
is
imperative
that
the
EPA
carefully
re­
consider
the
'
grandfathering'
clause
as
noted
in
Section
312,10
(
2)(
iv)
to
read:

"
As
of
the
date
of
promulgation
on
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education,
or
be
individuals
that
are
certified
by
a
professional,
organization
that
is
third
party
accredited
or
have
15
years
of
relevant
fulltime
Experience."

In
closing,
we
would
ask
that
the
EPA
review
committee
on
this
docket
consider
carefully
the
definition
of
the
'
grandfathering
clause'
so
as
to
include
those
most
senior
environmental
professionals
who
have
obtained
their
expertise
from
many
years
of
experience,
pioneering
this
industry
from
the
early
1980'
s
to
now.
Not
only
does
this
apply
to
us
personally
and
our
comrjany,
but
also
many
others
who
chose
this
career
before
a
formalized
education
specific
to
the
industry
was
available.

Thank
you
for
taking
the
time
to
hear
and
consider
our
comments.
Your
diligent
hard
work
in
developing
a
fair
and
affective
document
is
appreciated.
The
industry
sorely
needs
the
increased
quality
and
comptency
of
the
Phase
I
ESA
that
will
arise
from
your
236
efforts
to
develop
these
standards.

Response:
Please
see
responses
to
comments
0142
(
excerpt
1)
and
0030
(
excerpt
1).

Commenter
Organization
Name:
Covington,
GR
Comment
Number:
0280
Excerpt
Number:
1
Excerpt
Text:
The
grandfathering
provision,
if
their
must
be
one,
should
be
by
date
only.
And
should
recognize
everyone
who
has
been
in
practice
for
more
than
ten
years.
After
that
day
professional
registrations
described
in
the
proposed
rule
might
be
adequate
criteria.
Such
would
be
a
fair
approach
in
my
opinion.
Lastly,
such
professional
registrations
as
a
stand
alone
qualifyer,
aside
from
experience
does
not
make
one
a
qualified
EP,
in
my
opinion.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0326
Excerpt
Number:
1
Excerpt
Text:
Regarding
the
definition
of
an
Environmental
Professional,
the
proposed
definition
as
it
currently
stands
is,
at
best,
flawed,
and
at
worst,
discriminatory.
The
definition
assumes
that
there
is
a
direct
relationship
experience
and
certain
licensing.
This
is
not
always
true.
Comparing
requirements
b.
1
to
b.
4
the
National
Rulemaking
Committee
(
NRMC)
has
indicated
that
a
PE
or
PG
license
is
equivalent
to
7
years
of
"
full­
time
relevant
experience".
While
there
is
no
question
of
the
importance
of
a
PE
in
his/
her
relevant
field,
the
license
in
no
way
replaces
actual
experience,
unless
of
course
the
relevant
field
is
in
the
area
of
hazardous
waste
management.
Too
often
the
PE/
PG
licence
is
given
the
status
of
the
unquestionable
authority
but
in
many
cases
the
PE/
PG
has
lacks
the
direct
experience
necessary
to
properly
conduct
an
environmental
investigation
project.
The
argument
against
this
statement
is
that
PE/
PG's
follow
a
code
of
conduct
and
that
the
three
year
of
direct
experience
should
suffice.
This
argument
itself
is
flawed.

First,
ethics
are
not
dictated
by
a
license,
they
are
an
internal
part
of
ones
self.
A
true
Environmental
Professional
must
follow
a
set
of
ethical
values
or
the
simple
truth
is,
he/
she
will
not
be
in
the
field
for
very
long.
Throughout
the
history
of
the
current
ASTM
Environmental
Site
Assessment
Standard,
thousands
of
"
qualified
professionals"
have
been
conducting
ESA's.
It
is
known
that
over
the
years,
many
of
these
ESAs
were
performed
by
individuals
who
were
not
qualified
to
conduct
such
work.
However,
throughout
the
industry,
which
has
been
driven
by
banks,
real
estate
transactions,
Brownfield
grants,
etc.,
the
unqualified
individuals
have
gone
away
through
the
natural
course
of
the
Client­
base
becoming
more
aware.
237
Second,
the
proposed
definition
suggests
that
an
individual
who
graduated
college
with
a
BA
in
basket­
weaving
and
has
10
years
of
experience
is
qualified
to
conduct
AAI
work
but
that
an
individual
who
worked
in
the
oil
industry
for
20
years
and
then
moved
into
the
environmental
field
and
has
and
20
years
of
directly
relevant
experience
is
NOT
qualified.
This
is
a
major
flaw
since
it
is
readily
obvious
that
this,
in
most
cases,
is
not
true.
There
are
thousands
of
individuals
with
these
qualifications
in
the
industry
and
this
proposed
rule
limits
their
ability
to
continue
in
the
field.
In
this
respect
the
proposed
rule,
as
currently
written,
is
discriminatory
and
arbitrary.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
EPA
is
also
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
238
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Gaugler,
Earl
Comment
Number:
0327
Excerpt
Number:
1
Excerpt
Text:
The
statutory
criteria
outlining
the
elements
to
be
included
in
an
AAI
investigation
can,
and
are,
being
professionally
completed
by
those
whose
background
is
not
defined
by
the
proposed
qualifications.
The
due
diligence
criteria,
as
set
forth
in
CERCLA
Section
101(
315)(
2)(
B)(
iii),
is
essentially
a
basic,
non­
intrusive
study
of
the
property
and
its
history;
this
information
is
then
used
to
determine
the
likelihood
of
environmental
degradation
of
the
site.
According
to
the
accepted
interim
Federal
standard
ASTM
E
l527­
97,
the
assessment
can
be
generally
grouped
into
four
major
activities:

­
Records
review
­
Site
reconnaissance
­
Interviews
with
owners
/
occupants
and
government
officials
­
Preparation
and
submittal
of
a
written
report
to
the
client
This
evaluation
does
not
warrant
those
who
have
science
degrees,
a
professional
engineer
or
registered
geologist
license,
or
even
extensive
years
of
practice.
Matter­
of­
fact,
most
formal
engineering
and
science
curriculums
do
not
even
cover
the
due
diligence
process
or
environmental
assessments.
This
is
not
to
say
that
the
additional
knowledge
is
not
of
benefit,
only
that
the
proposed
.
educational
background
and
experience
requirement
does
not
automatically
qualify
one
as
being
competent
to
perform
a
phase
I­
level
ESA.

Furthermore,
even
though
one
has
obtained
these
general
credentials,
and
meets
the
definition
of
"
environmental
professional"
under
the
new
guidelines,
it
does
not
serve
to
indicate
specific
knowledge,
skills
and
abilities
("
KSA's'')
required
of
environmental
assessors.
Neither
do
these
generalized
qualifications
serve
to
prove
to
outside
regulators,
attorneys
and
the
courts
the
specific
qualifications
required
to
conduct
such
an
assessment.

For
example,
if
an
assessor
becomes
involved
in
a
civil
or
criminal
court
proceeding,
the
opposing
counsel's
expert
witness
will
claim
that
the
assessor's
training
or
final
report
was
somehow
inappropriate,
and
therefore
failed
to
disclose
a
property
contamination.
Only
if
one
qualifies
as
a
professional
witness,
in
a
given
specialty
area,
will
hinder
credibility
and
testimony
be
of
equal
stature
with
that
of
the
opponent.
Whether
or
not
one
qualifies
as
a
professional
witness,
in
a
certain
subject
area,
is
completely
within
the
239
discretion
of
the
judge
hearing
the
case.
The
judge
is
much
more
likely
to
grant
one
expert
witness
status
in
a
specific
"
task"
area
than
in
a
broad
and
general
category.
For
example,
a
judge
would
accept
one
as
an
expert
witness
in
environmental
assessment
if
it
can
be
substantiated
that
he
or
she
has
the
proper
and
specific
training
/
experience
in
that
particular
field,
and
not
merely
because
one
has
a
degree
in
engineering
or
geology.

A
practical,
technician­
level
education
often
proves
more
useful
than
an
extensive
science
or
engineering
background
for
most
environmental
work.
Some
of
the
best
training
I
have
had,
and
most
useful,
was
acquired
from
various
certificate
programs,
e.
g.
correspondence
and
college
extension
courses.
For
example,
as
an
environmental
health
and
safety
professional,
I
have
to
be
proficient
in
hazard
assessment
and
regulatory
compliance
issues;
this
is
essential
to
my
position.
Though
I
have
a
good
technical
background
from
my
college
years,
this
does
not
necessarily
qualify
me
to
conduct
sound
inspections
or
interpret
regulations.
I
actually
acquired
these
KSA's
from
taking
topicspecific
courses,
combined
with
on­
the­
job
experience,
after
college.
I
would
also
like
to
state
that
many
of
the
associates
I
have
worked
with
through
the
years
have
no
extensive
formal
education,
and
I
consider
them
to
have
equal
or
greater
assessment
skills
than
myself.
Some
of
these
associates
have
become
very
proficient
and
astute
professionals
by
taking
courses
such
as
those
offered
by
the
Environmental
Assessment
Association
(
EM),
of
which
I
am
proudly
a
member.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
240
Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
5
Excerpt
Text:
1)
FAA
believes
that
the
definition
of
an
EP
should
clarify
that
experience
in
site
investigations,
release
investigations,
and
site
remediations
that
are
conducted
for
nonreal
estate
transaction­
related
property
evaluations
(
such
as
investigations
conducted
pursuant
to
the
Resource
Conservation
and
Recovery
Act
[
RCRA]
or
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
[
CERCLA])
is
also
considered
relevant
experience.

Response:
The
Agency
believes
the
following
definition
included
in
the
final
rule
is
clear
in
this
regard.
The
definition
is
below.

Relevant
experience,
as
used
in
the
definition
of
environmental
professional,
means:
participation
in
the
performance
of
all
appropriate
inquiries
investigations,
environmental
site
assessments,
or
other
site
investigations
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.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
1
Excerpt
Text:
Proposed
Section
312.10(
b)(
1):
DEQ
does
not
believe
that
the
proposed
definition
of
an
"
Environmental
Professional"
is
adequate.
DEQ
conducts
targeted
brownfield
assessments
using
its
CERCLA
Section
128(
a)
grant
funds.
Not
all
of
DEQ's
project
officers
would
be
considered
"
Environmental
Professionals"
under
the
proposed
definition.
However,
all
of
DEQ's
project
officers
have
enough
knowledge
and
experience
to
conduct
AAI
investigations.
The
definition
of
an
"
Environmental
Professional"
assumes
that
just
because
a
person
has
a
certain
degree
and
number
of
years
experience
that
they
do
a
good
job.
Quality
of
work
is
not
based
solely
on
education
and
experience
but
also
on
each
individual
person's
competencies
and
abilities
to
perform
the
given
task.
DEQ
agrees
that
a
person
right
out
of
college
with
a
relevant
science
degree
does
not
have
the
appropriate
experience
to
conduct
AAI
investigations.
DEQ
believes
that
three
years
is
a
more
adequate
and
realistic
number
of
years
of
relevant
full
time
experience
needed
with
a
science
degree
to
conduct
AAI
investigations.
We
request
that
EPA
revise
the
years
of
experience
from
five
to
three
years.
Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
241
inquiries
investigation
have
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
environmental
concerns
at
a
property
or
the
need
for
further
investigation.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0348
Excerpt
Number:
3
Excerpt
Text:
provide
a
mechanism
for
non­
science
degreed
and
non­
degreed
persons
with
5­
10+
years
of
proven
experience
to
qualify
without
feeling
like
the
unwanted
stepchildren
of
the
field.
I
think
that
I
have
encapsulated
most
of
the
comments
on
the
proposed
EP
definition.
It
is
regrettable
that
the
FACA
committee
did
not
include
representatives
of
organizations
such
as
NAEP,
IPEP,
and
ACHMM
as
well
as
ASCE
­
the
multidisciplinary
history
of
environmental
consulting
should
not
be
sacrificed
to
one
or
a
handful
of
politically
connected
professional
organizations.
242
Response:
Please
see
response
to
comment
number
0030,
excerpt
1.

EPA
appreciates
your
concern
regarding
the
representation
of
differing
perspectives
on
the
Negotiated
Rulemaking
Committee.
In
1982,
the
Administrative
Conference
of
the
United
States
established
criteria
and
recommendations
for
using
the
negotiated
rulemaking
process
that
in
1990
was
established
in
the
Negotiated
Rulemaking
Act
(
Recommendation
82­
4,
1
CFR
§
305.82­
4
and
Recommendation
85­
5,
1
CFR
§
305.85­
5).
Among
other
things,
the
Administrative
Conference
recommended
that
reasonable
efforts
be
made
to
secure
a
balanced
group
of
interests
on
a
negotiated
rulemaking
committee.
To
this
end
EPA
went
to
substantial
lengths,
including
hiring
an
independent
convener
to
identify
interested
stakeholders
and
who
interviewed
over
60
individuals
representing
potential
stakeholders,
to
ensure
that
differing
stakeholders
were
afforded
an
opportunity
to
participate
meaningfully.
The
Negotiated
Rulemaking
Committee
for
the
all
appropriate
inquiries
rule
was
assembled
to
effectuate
the
diverse
perspectives
of
stakeholders,
or
those
parties
having
an
interest
in
or
who
potentially
would
be
affected
by
the
rulemaking.
After
EPA
went
to
considerable
lengths
to
identify
the
spectrum
of
stakeholders,
the
Agency
published
a
"
Notice
of
Intent
to
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
publication
of
this
notice,
EPA
held
a
public
meeting
to
discuss
its
intent
to
negotiate
the
proposed
rule
and
to
provide
interested
parties
with
another
opportunity
to
comment
on
the
Agency's
preliminary
list
of
committee
members.
Following
the
public
comment
period,
and
based
upon
input
received
in
the
public
comments,
EPA
added
additional
stakeholder
members
to
its
additional
list
of
potential
members
and
initiated
the
negotiated
rulemaking
process.
Once
the
Negotiated
Rulemaking
Committee
on
All
Appropriate
Inquiries
was
established,
the
Committee
conducted
all
of
its
business
publicly
and
afforded
members
of
the
general
public
ample
opportunity
to
participate
in
that
regard.
EPA
published
notices
announcing
the
date
of
each
Committee
meeting
in
the
Federal
Register
and
accepted
written
public
comment
on
the
Committee's
negotiations
throughout
the
Committee's
negotiations.
In
addition,
the
Committee
reserved
time
during
every
day
of
the
Committee's
negotiations
for
members
of
the
general
public
to
address
the
Committee.
The
Agency
made
every
effort
to
be
inclusive
in
this
transparent
negotiated
rulemaking
process.
For
further
information
concerning
this
process
please
see
the
preamble
to
the
proposed
All
Appropriate
Inquiries
rule
published
in
the
Federal
Register
(
40
CFR
Part
312).

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
1
Excerpt
Text:
We
understand
that
the
Brownfield
Amendments
state
that
the
AAI
process
must
include
"
the
results
of
an
inquiry
by
an
environmental
professional."
However,
we
question
the
243
EPA
and
Negotiated
Rulemaking
Committee's
use
of
prescriptive
language
and
stringent
qualifications
to
define
environmental
professional.
The
quality
and
diversity
of
experience
possessed
by
many
environmental
professionals
will
be
diminished
if
this
definition
is
adopted.
It
has
been
our
experience
that
a
strong
regulatory
background
and
a
familiarity
of
likely
sources
of
hazardous
substances
in
various
commercial
and
industrial
operations
are
more
reliable
in
determining
an
individual's
ability
to
perform
a
detailed
AAI,
more
so
than
the
prescribed
education
requirements
proposed.
We
realize
that
individuals
must
undergo
very
stringent
requirements
to
become
registered
professional
engineers
and
geologists;
however,
we
have
also
found
that
it
is
only
with
experience
that
one
would
know
what
questions
to
ask
and
what
signs
to
look
for
to
help
determine
the
presence
or
likely
presence
of
contamination
at
a
property
and
to
detect
contamination
by
appropriate
investigation.
Several
years
of
experience
is
absolutely
necessary
to
develop
opinions
and
conclusions
regarding
the
presence
of
a
release
or
threatened
releases
to
the
surface
or
subsurface
of
a
property.
The
AAI
process
is
more
subjective
than
the
areas
of
engineering
or
geology
and
degree
programs
do
not
impart
knowledge
of
the
AAI
process
any
more
than
other
bachelor
of
science
degree
programs,
associate
of
science
degree
programs,
or
most
importantly,
AAI
related
experience.

Response:
Please
see
responses
to
comment
numbers
0099
(
excerpt
1)
and
0030
(
excerpt
1).

Commenter
Organization
Name:
Walsh,
Gregory
Comment
Number:
0378
Excerpt
Number:
3
Excerpt
Text:
Experience
does
not
matter.
If
this
were
the
case
then
why
does
the
Navy
recognize
there
is
a
bridge
between
the
enlisted
man
and
the
officer,
the
Warrant
Officer?
This
is
a
commissioned
position.

Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
inquiries
investigation
have
both
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
environmental
concerns
at
a
property
or
the
need
for
further
investigation.

Please
see
response
to
comment
number
0030,
excerpt
1.

Commenter
Organization
Name:
Braman,
Marshal
Comment
Number:
0454
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.8.1
­
The
grandfather
clause
is
too
stringent
Excerpt
Text:
I
have
been
conducting
Phase
1,
2
and
3
work
for
the
past
15
years
(
1989).
Many
of
244
which
I
was
in
a
supervisory
and
project
manager
responsibility
level.
I
have
2
years
of
science
education
from
a
Community
College
and
2
years
of
education
in
commercial
horticulture
from
a
Technical
College.
I
successfully
completed
the
horticultural
program
although
it
did
not
offer
a
baccalaureate
degree.
In
addition
I
have
attended
numerous
seminars
over
the
past
15
years
to
develop
skills
specific
to
phase
1
and
2
work,
OSHA
training,
environmental
discovery
and
remediation.

I
have
personally
prepared
over
100
phase
1
investigations.

Further,
I
have
also
reviewed
in
a
supervisory
capacity
over
200
phase
1
investigations.

It
is
my
understanding
that
I
would
not
qualify
as
an
environmental
professional
under
the
proposed
rules.

In
all
of
the
projects
that
I
have
been
involved
in
I
have
never
had
a
phase
1
project
in
which
issues
of
environmental
concern
were
identified
subsequent
to
completion
of
the
assessment.

I
bring
this
to
your
attention
because
I
very
much
enjoy
my
career
choice
of
being
an
environmental
specialist.
If
this
regulation
passes
in
it's
present
form
I
will
not
be
allowed
to
perform
my
job.
I
do
not
want
that
to
happen.

Please
include
an
additional
grandfather
provision
for
a
combination
of
education
and
experience
equal
to
14
or
15
years.

Response:
Please
see
response
to
comment
number
0030,
excerpt
1.
245
2.1.7
Revise
the
Grandfather
Clause
to
Allow
All
Individuals
Currently
Conducting
Site
Assessments
to
Qualify
as
EPs
Commenter
Organization
Name:
Shellhouse,
Arthur
A
Comment
Number:
0046
Excerpt
Number:
1
Excerpt
Text:
As
an
environmental
inspector
with
30
years
of
experience,
I
strongly
urge
that
all
existing
environmental
professionals
be
grandfathered
into
the
proposed
law.

Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
inquiries
investigation
have
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
environmental
concerns
at
a
property
or
the
need
for
further
investigation.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
246
Commenter
Organization
Name:
Appleby,
Mark
Comment
Number:
0098
Excerpt
Number:
1
Excerpt
Text:
I
am
making
only
one
objection
to
this
proposed
regulation
which
is
the
arbitrary
decision
to
define
the
background
and
education
needed
by
persons
who
conduct
the
reviews.
To
regulate
the
many
possible
backgrounds
and
educational
experiences
which
many
professionals
in
this
field
have
is
unreasonable
and
invalid
as
a
standard.
I
believe
it
will
have
an
opposite
effect
from
the
one
desired
and
open
less
ethical
actions
in
many
cases.
I
have
had
my
own
business
which
conducts
Phase
I
field
assessments
for
just
under
9
years.
Prior
to
that
more
than
20
years
managing
persons
and
fact
checking
environmental
assessments.
My
company
has
the
highest
confidence
of
my
clients
and
we
pursue
all
avenues
of
review
as
a
matter
of
ethical
business.
This
element
of
an
otherwise
good
regulation
will
effectively
remove
my
company
(
as
it
now
operates)
from
Phase
I
work.
We
do
not
now
match
the
selected
educational/
background
standard
listed.

As
an
aside,
and
more
pointed
to
my
contention
this
background
stipulation
will
have
the
opposite
of
the
desired
effects;
I
have
had
several
Public
Engineers
who
have
offered
to
simply
sign
my
reports
for
$
500.
I
suggest
you
are
limiting
business
and
offering
opportunities
for
unethical
behaviors
with
the
needless
attempts
to
define
"
competent
professionals"
who
would
conduct
reviews
under
the
guidelines
in
AAI.

As
a
matter
of
business,
those
companies
who
conduct
environmental
reviews
that
are
not
ethical,
competent
or
otherwise
effective
in
their
review
diligence
and
format
will
not
receive
the
confidence
or
business
from
customers
who
require
these
services.
Uniform
guidelines
are
a
good
step,
but
unifying
background
and
experience
is
not
only
impossible
but
is
detrimental
to
good
effective
businesses
such
as
my
own.

Response:
Please
see
response
to
comment
number
0046,
excerpt
1.

Commenter
Organization
Name:
EAI
Comment
Number:
0109
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.8.3
­
The
proposed
minimum
requirements
will
have
a
negative
impact
on
the
ESA
industry,
small
businesses,
and
the
real
estate
market
Excerpt
Text:
I
think
you
should
expand
on
the
proposed
grandfathering
of
current
environmental
inspectors,
the
way
i
understand
the
current
rule
proposed
,
would
put
a
lot
of
professionals
out
of
business,
this
is
contrary
to
what
the
government
should
do!

Response:
Please
see
response
to
comment
number
0046,
excerpt
1.
247
Commenter
Organization
Name:
TXU
Comment
Number:
0268
Excerpt
Number:
2
Excerpt
Text:
However,
one
portion
of
the
proposed
rule
is
vague.
EPA
has
defined
the
term
"
environmental
professional"
in
such
a
way
that
may
preclude
many
of
TXU's
corporate
environmental
staff
from
meeting
the
definition.
TXU's
environmental
specialists
are
well­
qualified
and
knowledgeable
in
the
environmental
issues
surrounding
real
estate
transactions
and
many
have
been
involved
in
the
environmental
field
for
20
or
more
years.
TXU
should
be
able
to
continue
to
utilize
its
qualified
corporate
environmental
staff
to
handle
all
appropriate
inquiries
in
order
to
qualify
for
the
CERCLA
liability
protections.
The
part
of
EPA's
environmental
professional
definition
that
should
be
revised
is
the
term
"
full­
time
relevant
experience."
EPA
defines
"
relevant
experience"
as
"
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."

TXU's
environmental
specialists
fulfill
the
intent
of
the
proposed
requirements
because
they
have
the
necessary
relevant
experience.
Many
have
detailed
knowledge
and
experience
of
environmental
analyses,
investigations,
and
remediation
which
involve
the
understanding
of
surface
and
subsurface
environmental
conditions.
However,
environmental
site
assessments
are
not
their
sole
responsibility,
which
is
troublesome
given
the
implications
of
the
term
"
full­
time".
By
including
this
term,
EPA
will
prevent
qualified
individuals
from
signing
all
appropriate
inquiries
reports.
TXU
requests
that
EPA
remove
the
term
"
full­
time"
from
the
proposed
regulation
and
allow
qualified
environmental
professionals
to
supervise
all
appropriate
inquiries,
even
if
environmental
site
assessments
are
not
their
sole
responsibility.
Very
few
people
perform
environmental
site
assessments
on
a
full­
time
basis
and
implementing
such
a
requirement
will
only
drive
up
the
cost
of
environmental
site
assessments
for
companies
such
as
TXU,
who
have
qualified
environmental
experts
on
staff.

Response:
The
use
of
the
phase
"
full­
time"
within
the
definition
of
environmental
professional
and
the
definition
of
relevant
experience
is
meant
to
require
that
an
individual
has
accumulated
the
equivalent
of
3,
5,
or
10
years
of
experience.
An
individual
may
accumulate
such
experience
over
a
longer
length
of
time
than
the
3,
5,
or
10
years,
as
long
as
the
total
time
of
accumulated
experience
would
be
the
equivalent
of
3,
5,
or
10
years
of
full­
time
experience.
Even
after
an
individual
accumulates
the
required
number
of
years
of
full­
time
experience,
that
individual
does
not
have
to
conduct
environmental
site
assessments,
or
all
appropriate
inquiries
investigations,
on
a
full­
time
basis
to
qualify
as
an
environmental
professional.
248
Also
see
response
to
comment
number
0046,
excerpt
1.

Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
4
Excerpt
Text:
Second,
does
the
definition
of
"
full­
time,
relevant
experience"
exclude
environmental
professionals
who
are
currently
working
in
a
managerial
position
overseeing
the
work
of
other
environmental
professionals
and
having
experience
conducting
Phase
I
ESAs,
but
who
no
longer
participate
in
the
performance
of
ESAs
or
All
Appropriate
Inquiries?
BPC
believes
that
the
definition
should
include
those
professionals
who
are
currently
working
in
a
managerial
role.

Response:
Please
see
response
to
comment
number
0268,
excerpt
2.

If
individuals
are
currently
working
in
a
managerial
position
overseeing
the
work
of
other
environmental
professionals,
it
is
EPA's
hope
that
these
individuals
have
previous
work
experience
that
will
satisfy
the
requirements
of
the
final
rule.
If
this
is
not
the
case,
they
are
not
qualified
to
be
in
a
managerial
position
overseeing
the
work
of
others.

Commenter
Organization
Name:
Kammeraad,
Norman
Comment
Number:
0357
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.8.3
­
The
proposed
minimum
requirements
will
have
a
negative
impact
on
the
ESA
industry,
small
businesses,
and
the
real
estate
market
Excerpt
Text:
The
langauge
being
used
in
312.10
does
not
provide
for
Grand
fathering
of
all
ready
existing
indivuduals
who
have
practiced
in
the
field
of
environmental
assessments
for
years.
If
this
rule
was
to
take
effect,
much
like
the
Michigan
Act
451,
Part
213
QC,
CP
rules
of
1994
which
has
similar
langauge,
EPA
will
forcefully
remove
the
conduct
of
1000'
s
of
individuals.
This
would
be
a
violation
of
Federal
Law
U.
S.
C.
A.
Const.
Amend.
1
Further,
there
is
a
requirement
to
be
met
by
the
legislature
and
Agency
in
the
promulgation
and
enforcement
of
legislation
which
is
known
as
a
?
compelling
state
interest
test?
that
would
in
turn
provide
the
Agency
(
EPA)
authorization
to
eliminate
the
free
exercise
of
an
individual?
s
conduct.
A
statutory
classification
or
rule
that
infringes
on
a
person's
exercise
of
a
fundamental
right
must
be
justified
by
a
compelling
state
interest
and
achieved
by
narrowly
drawn
means.
Carey
v.
Population
Services
Int'l,
431
U.
S.
678,
97
S.
Ct.
2010,
52
L.
Ed.
2d
675
(
1977);
A
Compelling
State
Interest
must
be
truly
compelling,
"
threatening
safety
or
welfare
of
the
state
in
a
clear
and
present
manner",
for
restriction
to
survive
free
exercise
challenge
under
the
First
Amendment.
Thus,
only
the
States
have
the
right
to
enforce
and
remove
a
persons
conduct
via
threat
to
Health
and
welfare.
Many
firms
(
including
mine)
throughout
the
US,
have
worked
with
either
SBA,
USDA
and
Brownfields
programs
either
directly
or
indirectly.
To
remove
249
their
conduct
by
not
providing
Grandfatherization
rules,
is
the
same
as
removing
their
conduct
and
thus
income.
Thus,
language
is
needed
in
Section
312.10
of
the
AAI
rules
that
also
includes
them
by
definition
to
protect
them.

Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
inquiries
investigation
have
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
environmental
concerns
at
a
property
or
the
need
for
further
investigation.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
250
2.1.8
Comments
on
the
Proposed
Minimum
Requirements
Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
4
Excerpt
Text:
In
the
Federal
Register
(
August
26,
2004,
Vol.
69,
Page
52554),
the
record
indicated
that
the
Negotiated
Rulemaking
Committee
performed
a
balancing
test
between
the
need
for
"
a
high
standard
of
excellence"
and
the
need
to
ensure
that
competent
individuals
are
not
displaced.
When
the
issues
relate
to
hazardous
wastes,
it
is
NSPE's
belief
that
the
only
prudent
path
for
EPA
would
be
to
base
its
rules
squarely
on
objective
public
health
and
safety
issues.
If
this
rule,
in
fact,
is
based
upon
a
societal
need
to
protect
the
careers
of
certaan
individuals,
the
rulemaking
process
is
flawed.
The
balancing
tests
that
come
out
of
the
rulemaking
process
must
be
kept
in
proper
perspective.
The
proposed
rulemaking,
however,
does
not
appear
to
make
that
objective
distinction,
and
instead
it
states
that
this
balancing
test
was
for
the
protection
of
"
competent
individuals."
NSPE
takes
issue
with
the
fact
that
there
are
no
objective
methodologies
in
place
that
can
be
used
to
determine
and
police
the
competency
of
a
particular
individual.
If
EPA
really
wants
to
protect
the
public
and
ensure
that
only
competent
professionals
provide
this
service,
then
it
is
NSPE's
recommendation
that
EPA:

1.
Employ
objective
criteria
to
evaluate,
discipline,
and
regulate
these
individuals
(
i.
e.,
similar
to
professional
engineers
and
professional
geologists),
or
2.
Develop
a
national
database
that
includes
experience
and
qualifications
so
that
objectivity
can
be
used
to
determine
the
competency
of
the
environmental
professional.

Response:
The
Agency
believes
that
it
is
essential
that
the
person
overseeing
an
all
appropriate
inquiries
investigation
have
sufficient
education
and
experience
to
recognize
adverse
environmental
conditions
and
render
sound
opinions
with
regard
to
the
potential
for
environmental
concerns
at
a
property
or
the
need
for
further
investigation.
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
251
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

The
environmental
professional
overseeing
the
conduct
of
the
all
appropriate
inquiries
investigation
must
indicate
when
he
or
she
signs
the
report
of
findings
for
the
all
appropriate
inquiries
investigation
that
he
or
she
meets
the
definition
of
environmental
professional
included
in
the
final
rule
(
see
final
rule
section
312.21(
d)).
EPA
is
not
going
to
collect,
evaluate,
or
verify
the
credentials
or
qualifications
of
individual
environmental
professionals,
nor
is
EPA
going
to
develop
a
data
base
of
information
on
qualified
individuals.
If
a
prospective
property
owner
needs
advice
on
how
to
find
a
qualified
environmental
professional,
the
prospective
property
owner
may
want
to
request
advice
from
a
private
professional
certification
organization
or
a
state
licensing
board
for
P.
E.
s
and
P.
G.
s.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
9
Excerpt
Text:
1
Most
of
the
50
states
and
the
District
of
Columbia
require
that
Professional
Engineer
candidates
submit
a
"
Supplemental
Engineering
Record,"
which
discusses
in
detail
the
types
of
projects
that
the
candidate
worked
on
during
their
internship.
In
addition,
candidates
must
obtain
references
from
their
licensed,
and
unlicensed,
co
¬
workers
and
outside
persons
who
provide
information
pertaining
to
the
candidate's
professional
and
technical
capabilities
as
well
as
their
moral
and
ethical
framework.
This
rigorous
process
does
not
seem
to
be
too
much
to
ask
for
those
persons
seeking
to
work
on
hazardous
waste
projects.

Response:
The
environmental
professional
overseeing
the
conduct
of
the
all
appropriate
inquiries
investigation
must
indicate
when
he
or
she
signs
the
report
of
findings
for
the
all
252
appropriate
inquiries
investigation
that
he
or
she
meets
the
definition
of
environmental
professional
included
in
the
final
rule
(
see
final
rule
section
312.21(
d)).
EPA
is
not
going
to
collect,
evaluate,
or
verify
the
credentials
or
qualifications
of
individual
environmental
professionals,
nor
is
EPA
going
to
develop
a
data
base
of
information
on
qualified
individuals.
Should
a
prospective
property
owner
need
advice
on
how
to
find
a
qualified
environmental
professional,
the
prospective
property
owner
may
want
to
request
advice
from
a
private
professional
certification
organization
or
a
state
licensing
board
for
P.
E.
s
and
P.
G.
s.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
2
Excerpt
Text:
What
Constitutes
An
AAI
Environmental
Professional?

IPEP
is
pleased
to
see
that
EPA's
CERCLA/
Superfund
program
feels
that
for
AAIs
to
be
valid
tools
which
can
shield
perspective
purchasers
from
liability,
these
inquiries
must
be
overseen
by
appropriately
qualified,
experienced
professionals.
We
also
agree
with
the
concept
of
a
two­
tier
definition,
the
first
based
on
attainment
of
a
license
(
or
similar
certification)
and
the
second
by
meeting
a
set
of
established
criteria.
We
do
think
however,
that
it
may
be
prudent
to
strengthen
the
proposed
definition
language
to
make
sure
that
in
order
to
qualify
as
an
AAI
Environmental
professional,
the
individual
must
meet
not
only
the
criteria
in
item
(
2)
in
the
proposed
definition,
but
also
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 "
.
We
feel
this
link
between
educational
and
experience
criteria
(
degree,
licenses,
certifications
years
worked
etc.)
and
the
performance
standard
of
being
able
to
develop
the
necessary
opinions
and
conclusions
is
one
that
some
of
the
other
emerging
regulatory
and
credentialing
programs
are
lacking.

A
number
of
states
have
developed
and
promulgated
regulations
pertaining
to
environmental
practice
credentials
for
the
purpose
of
identifying
individuals
who
are
deemed
pre­
qualified
to
perform
particular
tasks
in
the
environmental
management
field.
The
programs
existing
in
four
states
­
DE,
MA,
NJ,
and
NC
­­
are
presented
as
examples
of
how
licensure
and
certification
have
been
applied
in
the
field
of
environmental
management.
In
each
case,
registered
professional
engineers
and
professional
geologists
licensed
at
the
state
level
are
among
but
not
necessarily
the
only
recognized
credentials.
Although
the
programs
are
similar
in
many
respects,
they
are
significantly
different
in
others,
with
a
common
denominator
that
there
is
no
uniform
set
of
criteria,
such
as
ASTM
E1929­
98,
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria,
used
to
determine
the
acceptable
qualifications
and
experience
for
professionals
allowed
to
oversee
and
approve
the
environmental
management
programs
that
are
covered
by
the
particular
regulatory
program.
The
lack
of
such
object
criteria
in
many
of
the
emerging
regulations
illustrate
the
issues
summarized
below
regarding
the
need
to
set
objective,
"
bright
line"
253
qualification
and
credentialing
requirements
for
environmental
professionals.

In
each
of
these
instances,
just
as
in
the
proposed
rule,
the
qualifications
and
experience
of
the
applicants
are
not
compared
to
a
set
of
objective
criteria
that
meets
ASTM
E1929­
98
with
respect
to
nationally­
accepted
credentialing
program
guidelines
and
independent
third
party
accreditation.
Additionally,
in
each
of
these
examples,
there
is
no
requirement
that
the
persons
employed
by
the
state
agency,
who
review
and
render
judgment
on
the
acceptability
of
the
applications
received
for
the
designated
credential,
have
appropriate
qualifications,
experience,
and
licensure
or
certification
relevant
to
the
area
of
environmental
professional
practice
of
the
applications
received
for
review.
Lacking
such
credentials,
the
state
agency
review
typically
serves
primarily
as
an
administrative
exercise
comparing
the
information
contained
in
an
application
to
a
checklist
of
requirements.
Such
an
administrative
review
is
not
comparable
to
the
rigorous
process
of
licensure
or
certification
used
by
the
states
[
to
register
professional
engineers,
surveyors,
and
geologists]
or
by
ASTM­
compliant
environmental
certification
programs.

Greater
detail
about
the
four
illustrative
programs,
their
scope,
and
the
details
of
professional
credentialing
are
included
in
Appendix
C.

Response:
The
definition
of
environmental
professional
in
the
final
rule
(
as
did
the
proposed
rule)
includes
a
performance
standard
such
as
that
recommended
by
the
commenter
at
40
CFR
312.10,
in
paragraph
(
1)
of
the
definition
of
environmental
professional
["
(
1)
a
person
who
possesses
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
develop
opinions
and
conclusions
regarding
conditions
indicative
of
releases
or
threatened
releases 
on,
at,
in
or
to
a
property,
sufficient
to
meet
the
objectives
and
performance
factors
in
§
312.20(
e)
and
(
f))."]

EPA
is
also
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
254
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
such
as
the
ASTM
E1929
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0273
Excerpt
Number:
1
Excerpt
Text:
After
some
30
years
of
professional
practice
as
a
qualified
environmental
professionsl,
I
feel
that
it
is
important
that
the
AAI
Definition
of
Environmental
Professional
be
broadened
and
strenghtened
as
recommended
by
the
Institute
of
Professional
Environmental
Practice
in
their
comments
on
this
rulemaking.

Response:
Please
see
response
to
comment
number
0266,
excerpt
2.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
3
Excerpt
Text:
The
Band
agrees
with
the
proposed
language
that
allows
an
Environmental
Professional
to
hold
a
current
license
and
registration
from
a
tribe
(
where
such
tribe
has
the
capacity
to
license
or
certify).

Response:
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
255
subsurface
of
a
property,
sufficient
to
meet
the
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
4
Excerpt
Text:
The
Band
agrees
with
the
proposed
language
to
allow
an
Environmental
Professional
who
performs
environmental
inquiries
to
be
licensed
or
certified
with
a
tribe.
Although
some
tribes
like
the
Mille
Lacs
Band
do
not
currently
license
or
certify
Environmental
Professionals,
the
Band
and
many
other
tribes
want
the
authority
to
license
or
certify
in
the
future
when
capacity
allows.

Response:
Please
see
response
to
comment
number
0330,
excerpt
3.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
3
Excerpt
Text:
In
addition,
under
the
currently
proposed
rules,
DEQ
will
not
have
the
resources
to
have
someone
considered
an
"
Environmental
Professional"
under
the
proposed
rules
conduct
all
of
the
work
necessary.
DEQ
will
need
to
contract
brownfields
AAI
investigations
to
an
outside
contractor,
which
is
an
unnecessary
expenditure
of
funds.
DEQ
personnel
who
would
be
excluded
from
the
definition
of
an
"
Environmental
Professional"
can
perform
the
same
work
as
a
contractor
but
at
a
lower
cost.
DEQ
only
receives
a
limited
amount
of
funds
each
year
through
the
128(
a)
grant
and
prefers
to
make
the
most
of
those
funds.

DEQ
also
has
concerns
that
the
definition
of
"
Environmental
Professional"
will
reduce
project
officers'
credibility
who
do
not
meet
the
proposed
definition
of
"
Environmental
Professional."
Project
officers
provide
comments
on
documents,
conduct
oversight,
testify
in
court
and
conduct
many
other
professional
tasks.
DEQ
believes
the
AAI
rule
should
clearly
state
that
the
definition
of
an
"
Environmental
Professional"
may
not
be
used
in
any
other
context.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
256
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

The
definitions
provided
in
§
312.10(
b)
of
the
final
rule
are
applicable
only
to
the
all
appropriate
inquiries
regulation
in
40
CFR
Part
312,
as
indicated
at
the
beginning
of
that
section.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
4
Excerpt
Text:
The
inclusion
of
individuals
with
a
degree
in
a
scientific
field
results
in
more
quandaries.
What
is
a
scientific
field?
Math?
Astrophysics?
Biology?
Which
better
prepares
an
individual
to
perform
Phase
Is?
I
think
that
what
you
are
really
looking
for
is
the
individual
that
understands
and
can
apply
the
scientific
principle,
which
is
really
a
philosophic
endeavor,
and
that
may
or
may
not
be
one
of
the
individuals
in
the
acceptable
categories.
Anyone
with
a
modicum
of
training
and
experience
can
recognize
stains
or
improper
use
of
hazardous
materials.
In
my
role
as
a
trainer
of
new
personnel,
I
found
geography
majors
to
be
quickest
learners
and
best
all
round
individuals
to
perform
Phase
Is.
As
far
as
PEs
and
PGs
being
disciplinable
by
their
respective
state
boards,
how
many
257
are
actually
disciplined?
Code
of
ethics
­
many
disciplines
have
codes
of
ethics
that
are
more
commonly
ignored
than
observed.
I
do
agree
that
investigations
involving
sampling
of
soil
or
ground
water
(
in
Phase
IIs)
should
properly
be
under
the
supervision
of
a
PG
or
applicable
PE.
I
think
that
the
rule
should
just
list
generalities,
e.
g.
"
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
[
does
one
have
to
qualify
as
a
soothsayer
to
identify
threatened
releases?]
of
hazardous
substances
to
the
surface
or
subsurface
of
a
property.
The
market
may
not
have
done
as
well
as
some
(
including
me)
would
like
In
weeding
out
unfit
producers,
but
I
do
not
feel
that
listing
all
the
different
categories
will
be
any
more
effective.
Cheaters
will
still
cheat.

Response:
Please
see
response
to
comment
numbers
0099
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
3
Excerpt
Text:
2.
BPC
questions
the
agency's
definition
of
"
full­
time,
relevant
experience."
BPC
believes
that
the
definition
of
"
full­
time,
relevant
experience"
should
be
revised
to
exclude
the
requirement
for
an
environmental
professional
to
have
an
understanding
of
subsurface
environmental
conditions.
First,
in­
depth
knowledge
and
evaluation
of
subsurface
conditions
is
not
necessary
during
the
traditional
Phase
I
ESA
or
site
visit.
An
extensive
understanding
of
subsurface
environmental
conditions
and
investigations
is
required
during
a
traditional
Phase
II
after
an
environmental
concern
has
been
recognized
during
the
Phase
I
ESA
or
All
Appropriate
Inquiry.

Response:
The
definition
of
"
relevant
experience"
in
the
final
rule
does
not
require
that
an
environmental
professional
have
an
understanding
of
subsurface
environmental
conditions.
Although
such
experience
is
included
as
one
example
of
the
type
of
experience
that
is
relevant,
the
definition
does
not
preclude
individuals
with
other
forms
of
relevant
experience
and
without
experience
or
understanding
of
surface
and
subsurface
environmental
conditions
from
qualifying
as
an
environmental
professional.

Relevant
experience,
as
used
in
the
definition
of
environmental
professional,
means:
participation
in
the
performance
of
all
appropriate
inquiries
investigations,
environmental
site
assessments,
or
other
site
investigations
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.
258
Commenter
Organization
Name:
ASBOG
Comment
Number:
0364
Excerpt
Number:
2
Excerpt
Text:
It
is
our
position
that
any
and
all
proposed
"
grandfather"
clauses
as
stated
in
the
proposed
rulemaking
change
should
be
removed.
Further,
any
references
to
unlicensed
individuals
being
qualified
by
the
Federal
Government
to
perform
this
type
of
work
should
also
be
stricken.
Again,
professional
licensure
is
the
only
mechanism
allowed
by
law
in
ASBOG*
Member
Board
States
for
this
type
of
activity.

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
include
the
proposed
"
grandfather
clause."
EPA
is
unsure
what
the
commenter
is
asserting
by
stating
"
professional
licensure
is
the
only
mechanism
allowed
by
law
in
ASBOG*
Member
Board
States
for
this
type
of
activity."
EPA
contends
that
it
clearly
has
the
statutory
authority
to
establish
who
is
qualified
to
conduct
the
required
activities
of
the
final
rule.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Walsh,
Gregory
Comment
Number:
0378
259
Excerpt
Number:
4
Excerpt
Text:
It
is
estimated
that
there
are
twice
as
many
Environmental
Laws
on
the
books
as
civil
laws.
It
would
be
prudent
of
the
EPA
to
have
as
many
Professionals
reviewing
the
subject
matter
and
being
held
accountable
for
the
same.
Doing
so
would
indicate
to
the
regulatory
population
that
the
EPA
is
serious
about
total
quality
environmental
stewardship.

Response:
Thank
you
for
your
comment.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
14
and
20
Excerpt
Text:
In
addition,
the
Proposed
Rule's
four
levels
of
minimum
qualifications
for
EPs
are
arbitrary,
particularly
the
fourth
tier,
which
allows
a
professional
with
an
undergraduate
degree
and
10
years
of
full­
time
relevant
experience
to
conduct
AAIs
prior
to
the
final
rule
in
this
regard,
but
prohibits
similarly
situated
individuals
from
conducting
AAIs
after
such
date.

There
are
numerous
ways
to
gain
the
requisite
expertise
and
experience
to
conduct
AAIs
and
there
arc
various
environmental
certification,
education,
and
training
mechanisms
to
do
so.
The
definition
of
EP
should
not
be
limited
to
the
stringent
and
arbitrary
qualifications
as
outlined
in
the
Proposed
Rule,
clearly
favoring
Professional
Engineers
and
Geologists,
but
opened
to
any
EP
that
can
evident
specific
education,
training
and
experience
sufficient
to
meet
the
objectives
and
performance
factors
outlined
in
the
Proposed
Rule.
This
person
will
be
required
to
attest
to
this
fact
and
to
conducting
the
AAIs
in
conformance
with
the
final
regulations
­
this
should
be
sufficient
to
meet
the
objective
under
the
Act
that
AAIs
include
an
"
inquiry
by
an
EP.

Lastly,
NPCA
urges
EPA
to
redefine
EP
in
order
to
afford
competent
environmental
experts
as
well
as
current
environmental
employees
to
serve
in
this
capacity.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
260
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
Excerpt
Number:
3
Excerpt
Text:
Amending
the
definition
as
proposed
by
KCHMM
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,"
69
Fed.
Reg.
52553,
and
allow
those
individuals
most
qualified
to
conduct
such
inquiries
to
continue
doing
so.

Response:
Please
see
response
to
comment
number
0405,
excerpt
1.

Commenter
Organization
Name:
RT
Environmental
Services
Comment
Number:
0406
Excerpt
Number:
1
Excerpt
Text:
­
Qualifications­
The
Agency
proposes
to
establish
minimum
qualifications
for
those
completing
Phase
I
Environmental
Site
Assessments.
The
regulations,
however,
are
unclear,
as
to
the
degree
peer
review
is
required,
and
as
to
the
qualifications
of
the
peer
reviewers.

Response:
The
definition
of
environmental
professional
in
the
final
rule
does
not
include
a
peer
review
requirement.

Commenter
Organization
Name:
RT
Environmental
Services
Comment
Number:
0406
261
Excerpt
Number:
3
Excerpt
Text:
­
Recommended
Addition
to
Regulations­
The
Agency
should
establish
as
web
page
which
makes
available
comprehensive
EPA
sponsored
the
1970'
s
studies
of
industry
waste
practices.
Establishing
minimum
qualifications
of
reviewers
will
provide
no
assurance,
particularly
as
time
goes
on,
that
the
person
who
prepares
or
peer
reviews
the
Phase
I
Environmental
Site
Assessment
is
familiar
with
the
industry
class
which
may
be
currently
operated,
or
which
historically
operated
on
a
subject
property.
So
long
as
either
the
assessor,
or
peer
reviewer
has
familiarized
himself
with
the
relevant
industry
information,
the
report
will
be
of
acceptable
quality.
An
example
of
EPA
guidance
which
should
be
consulted
is
"
Pharmaceutical
Industry­
Hazardous
Waste
Generation,
Treatment,
and
Disposal
(
SW­
508),
USEPA,
1976."

Response:
Given
the
great
variety
of
types
of
properties
for
which
all
appropriate
inquiries
investigations
may
be
carried
out,
it
is
not
possible
for
EPA
to
provide
guidance
on
how
to
conduct
such
investigations
at
each
type
of
property.
Prospective
property
owners
may
want
to
consult
with
professional
certification
organizations
or
their
state
government
licensing
boards
for
information
on
environmental
professionals
with
particular
types
of
expertise.

Commenter
Organization
Name:
Bridges,
John
Comment
Number:
0426
Excerpt
Number:
1
Excerpt
Text:
In
response
to
[
SFUND­
2004­
0001;
FRL­
7815­
2]
Standards
and
Practices
for
All
Appropriate
Inquiries
(
AAI)
I
disagree
with
the
proposed
definition
of
environmental
professional
as
drafted.
After
carefully
reviewing
the
standards
for
conducting
appropriate
inquiries
into
previous
ownership,
uses;
and
environmental
conditions
of
property
I
support
the
body
of
the
text,
but
not
the
proposed
definition
of
environmental
professional.

Overall,
I
believe
the
notice
provides
a
framework
to
build
upon,
perhaps
over
a
specified
period
of
time,
however
I
do
not
concur
with
the
proposed
definition:
Environmental
Professional
as
drafted.

More
importantly,
environmental
practitioners
today
(
seasoned
veterans
and
college
graduates)
even
though
competent
and
skilled
may
not
"
qualify"
based
on
the
proposed
definition.
As
an
example,
environmental
conditions
today
have
a
much
broader
reach
as
we
enter
into
the
topic
of
bio­
terrorism
and
chemical
agents
that
may
have
a
direct
impact
to
response
and
recovery
actions
outlined
within
the
revised
National
Response
Plan
(
NRP).

For
these
reasons,
I
disagree
with
the
proposed
definition
of
environmental
professional,
but
support
the
efforts
of
this
proposal.
262
Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Froehlich,
R
A
Comment
Number:
0438
Excerpt
Number:
3
Excerpt
Text:
In
closing,
I
strongly
recommend
that
a
more
comprehensive
definition
of
environmental
professional
be
adopted
to
ensure
that
the
environmental
professional
who
certifies
the
"
All
Appropriate
Inquiry"
environmental
site
assessments
have
the
demonstrated
expertise
to
ensure
that
potentially
contaminated
properties
are
identified
and
tested
adequately
rather
than
being
accepted
as
"
uncontaminated"
by
an
unqualified
professional.

Response:
In
the
preamble
to
the
final
rule,
EPA
clarifies
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
263
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
onsite
visual
inspection
of
the
property.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
3
Excerpt
Text:
Because
ASTM
has
created
a
list
of
procedures
for
conducting
Phase
I
and
Phase
II
environmental
site
assessments,
virtually
anybody
who
is
capable
of
following
those
procedures
should
be
considered
or
could
be
considered
as
an
environmental
professional.

Response:
The
final
rule
provides
minimum
educational
and
experience
qualifications
for
individuals
who
qualify
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.
EPA
believes
that
the
qualifications
included
in
the
definition
of
environmental
professional
provide
a
good
balance
of
educational
and
professional
experience
requirements.
264
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
6
Excerpt
Text:
The
standard
in
its
present
form
does
not
protect
the
public
interest
regarding
professional
engineers
and
geologists.
There
is
no
level
of
enforcement
or
back
in
qualification
or
back
in
qualification
process
delineated
in
the
law.
The
law
in
its
current
form
would
give
government's
approval
to
a
profession
without
enforcement
or
qualification
to
the
public
by
restricting
it
to
two
professions,
which
harms
the
public
good.
It
can
be
argued
that
U.
S.
EPA
does
not
have
the
legal
authority
to
decide
who
is
an
environmental
professional.
There
is
no
regulation
that
provides
U.
S.
EPA
with
authority
to
regulate
a
profession
or
endorse
a
profession.

The
regulation
in
its
current
form
violates
states'
rights
to
protect
individuals­­
to
regulate
professions
at
an
individual
level.
There
isn't
a
federally
licensed
engineer
or
geologist.
It's
all
done
by
the
state
level.
If
the
federal
government
provides
a
level
of
enforcement
they
are
effectively
taking
away
power
and
funding
from
states
to
regulate
their
professions.
265
Response:
EPA
asserts
that
the
Agency
has
the
authority
to
establish
qualifications
for
persons
conducting
all
appropriate
inquiries.
The
CERCLA
statute
at
section
101(
35)(
2)(
B)(
ii)
includes
criteria
that
EPA
must
include
in
the
regulations
governing
federal
standards
and
practices
for
conducting
all
appropriate
inquiries.
One
criterion
is
"
the
results
of
an
inquiry
by
an
environmental
professional."

The
final
rule
recognizes
tribal
and
state­
licensed
P.
E.
and
P.
G.
s
and
other
such
state
and
tribal
government
licensing
environmental
professional
programs.
Individuals
with
a
state
certification
or
license
and
three
years
of
experience
to
be
environmental
professionals
qualify
as
environmental
professionals
for
the
purposes
of
the
all
appropriate
inquiries
rulemaking.
However,
the
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

The
final
rule
also
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
education
and
experience
qualifications.
Based
upon
the
input
received
from
the
public
commenters,
EPA
266
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Mittelholzer,
Michael
Comment
Number:
PM­
0207­
0002
Excerpt
Number:
4
Excerpt
Text:
Number
two:
The
definition
of
an
environmental
professional
found
under
312.10,
and
I'm
specifically
referring
to
subpart
2(
i)
and
(
ii),
and
I
apologize
for
the
specificity
there,
this
subsection
of
the
proposed
rule
creates
two
different
standards
regarding
the
numbers
of
years
of
direct
working
experience
required
for
a
professional
engineer,
PE,
and
that's
three
years,
versus
consultants
with
all
other
relevant
environmental
science
backgrounds,
which
requires
them
to
have
five
years
of
professional
experience.
Also,
this
category
includes
engineers
who
lack
a
PE's
license.
NAHB's
concern
is
the
proposed
rule
might
have
the
unintended
effect
of
preventing
capable
environmental
consultants
either
now
or
in
the
future
from
qualifying
as
an
environmental
professional.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
267
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Testa,
Steve
Comment
Number:
PM­
0359­
0002
Excerpt
Number:
2
Other
Sections:
MODIFIED
­
2.2.1
­
The
Agency
should
clarify
what
type
of
training
or
continuing
education
would
satisfy
this
requirement
Excerpt
Text:
The
second
recommendation
reflects
on
annual
refresher
courses
or
continuing
education.
AIPG
also
strongly
recommends
that
an
annual
refresher
course
be
required
for
the
Environmental
Professional.
Other
programs
require
annual
refresher
courses
to
remain
current
in
their
fields
of
practice,
such
as
the
eight­
hour
OSHA
classes
and
asbestos
training.
The
proposed
rule
only
recommends
continuing
education,
and
most
state
Professional
Geologist
licenses
don't
require
any.
AIPG
has
instituted
a
program
for
continuing
professional
development
for
practitioners.

Last,
an
annual
refresher
course
would
give
other
individuals
who
are
grandfathered,
but
who
are
not
CPGs
or
registered,
an
opportunity
to
learn
more
about
basic
hydrogeology
and
geologic
concepts
to
which
they
may
not
have
been
exposed
previously.
Adding
also
to
the
importance
of
this
issue
is
the
proliferation
of
automated,
Internet­
based
platforms
for
creating
data
summaries
and
maps
of
the
subject
area.
These
give
the
erroneous
impression
of
thoroughness
to
the
point
of
even
showing
groundwater
flow
direction
and
the
relative
elevation
of
surrounding
sites
that
have
the
potential
to
impact
the
subject
site.
These
presentations
can
be
misleading
and,
if
used
by
an
unqualified
Environmental
Professional,
may
lead
to
serious
oversights
with
significant
consequences.
The
judgement
of
a
qualified
geologist,
taking
advantage
of
all
available
geologic
and
hydrogeologic
information
sources,
is
necessary
for
this
purpose.

Response:
The
definition
of
an
environmental
professional
in
the
final
rule
includes
a
requirement
that
an
environmental
professional
remain
current
in
his
or
her
field
through
participation
in
continuing
education
or
other
activities.

Commenter
Organization
Name:
Dannatt,
Georgina
Comment
Number:
PM­
0359­
0004
Excerpt
Number:
2
Excerpt
Text:
Under
a
performance­
based
approach,
the
situation
will
continue
to
be
largely
as
it
is
268
now,
where
unsophisticated
property
owners
do
not
understand
that
their
due
diligence
is
inadequate,
while
sophisticated
owners,
redevelopment
agencies,
and
lenders
call
for
a
higher,
more
thorough
level
of
investigation.

I'm
going
to
comment
directly
on
three
aspects
of
the
rule.
First,
I
believe
that
the
definition
of
Environmental
Professional
should
not
be
overly
restrictive.
To
do
a
Phase
One,
scientific
and
research
skills
are
necessary,
as
well
as
excellent
writing
and
communication
skills.

There
has
been
much
comment
from
the
engineering
community
that
only
licensed
professional
engineers
and
geologists
are
qualified.
Numerous
educational
backgrounds
are
suitable
training
in
scientific
methods,
including
chemistry,
toxicology,
industrial
hygiene,
biology
and
soil
science,
as
well
as
the
engineering
earth
science
and
environmental
science
disciplines
listed
in
the
proposed
rule.
In
addition,
people
with
as
diverse
backgrounds
as
history
and
geography
may
make
excellent
assessors.
But
regardless
of
the
provider's
education,
the
most
important
factors
are
on­
the­
job
training
and
experience.

A
professional
holding
a
state
license
who
practices
in
another
specialty
area
is
certainly
not
more
qualified
than
a
person
with
a
life
science
degree
whose
entire
career
is
performing
due
diligence
assessments.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."
269
The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
270
2.1.8.1
The
Grandfather
Clause
is
Too
Stringent
Commenter
Organization
Name:
Gasper,
Matthew
P
Comment
Number:
0041
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.6
­
Revise
educational
requirements
to
allow
individuals
with
substantial
relevant
work
experience
to
qualify
as
EPs
Excerpt
Text:
Each
of
the
requirements
state
that
the
individual
performing
the
assessment
must
have
a
four
year
college
degree,
and
a
scaled
full
time
employment
experience
in
order
to
sign
the
reports.
All
that
sounds
good
on
the
surface,
however,
the
rule
does
not
address
individuals
like
myself,
and
I
am
sure
many
others
throughout
the
United
States.
However,
the
way
the
proposed
rule
is
written
an
individual
with
an
accredited
degree
in
anything
at
all,
and
ten
years
working
experience
would
qualify
as
an
environmental
professional.

My
situation
is
that
I
have
been
conducting
environmental
assessments
for
the
past
17
years,
and
been
in
business
for
myself
since
1996
(
tax
id
59­
3390392).
I
do
not
have
my
college
degree.

Response:
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
271
Commenter
Organization
Name:
Wolf,
Robert
Comment
Number:
0195
Excerpt
Number:
1
Excerpt
Text:
I
have
been
performing
ESA
since
at
least
1990
and
now
all
of
the
sudden
this
rule
comes
along
I
will
not
be
able
to
perform
them
since
I
do
not
have
a
college
degree.
I
have
done
hundreds
of
ESA
all
over
the
US
and
have
never
had
an
issue
or
complaint
that
I
have
not
properly
performed/
evaluated
a
Site.
I
agree
that
some
type
of
Standards
need
to
be
established
but
excluding
persons
with
experience,
knowledge
and
speclilized
training,
for
a
degree
and
a
few
years
experience
is
not
the
way.

Response:
Please
see
response
to
comment
number
0041,
excerpt
1.

Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
7
Excerpt
Text:
the
experience
requirement
for
those
with
no
degree
in
an
environmentally
concentrated
field
be
reduced
from
ten
years
to
five
years.
We
agree
that
when
actual
testing
is
required,
a
higher
level
of
education
and
experience
is
appropriate,
but
for
the
level
of
research
required
under
AAI,
the
public
health
can
be
adequately
protected
at
the
fiveyear
experience
level.

Response:
Please
see
response
to
comment
number
PM­
0359­
0004,
excerpt
2.

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
5
Other
Sections:
NEW
­
2.1.4
­
Revise
educational
requirements
to
allow
individuals
with
Baccalaureate
or
higher
degrees
in
areas
other
than
engineering,
environmental
science,
and
earth
science
and
five
or
more
years
of
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
I
support
the
changes
put
forward
by
the
National
Registry
of
Environmental
Professionals
­
in
that
§
312.10(
b)(
1)(
i­
iv)
of
the
EPA
proposed
rule
be
amended
to
state
all
requirements
set
forth
for
engineers
to
conduct
all
appropriate
inquiries
be
the
same
as
those
with
a
BA
or
BS
level
degree
in
an
environmentally
concentrated
field
in
conducting
the
same
inquiries;
and,
the
experience
requirement
for
those
with
no
degree
in
an
environmentally
concentrated
field
be
reduced
from
10
years
to
5
years.
272
Response:
The
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
qualifications
for
environmental
professionals
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
4
Excerpt
Text:
We
strongly
urge
the
EPA
to
incorporate
language
in
the
regulation
to
grandfather
individuals
involved
in
the
performance
of
AAIs
prior
to
the
effective
date
of
the
final
273
regulation
without
regard
to
the
education
criteria
as
proposed.
Individuals
who
become
actively
involved
in
AAIs
following
the
effective
date
of
the
regulation
would
then
have
to
meet
the
definition
of
environmental
professional
as
proposed.
Doing
this
would
minimize
the
impact
to
the
regulated
community
and
raise
the
bar
as
desired
by
the
Agency
moving
forward.
The
grandfathered
environmental
professional
could
be
required
to
attest
to
their
"
grandfathered
status"
in
the
report
along
with
the
statement
required
in
§
312.21(
d).
Furthermore,
it
is
our
position
that
individuals
with
5
years
or
more
of
relevant
AAI
experience
who
have
earned
associate
of
science
degrees
in
an
environmental
discipline
should
meet
the
definition
of
environmental
professional.
We
are
requesting
that
the
EPA
amend
the
proposed
definition
of
environmental
professional
to
reflect
this.

Response:
Please
see
response
to
comment
number
0225,
excerpt
5.

Commenter
Organization
Name:
Andrews,
Douglas
Comment
Number:
0399
Excerpt
Number:
3
Excerpt
Text:
(
2)(
iv)
Paragraph
(
2)(
iv)
also
should
include
certifications
from
relevant
professional
organizations
as
a
qualification
for
the
"
grandfathering"
provision
of
AAI.
Therefore,
I
propose
the
following
wording
for
this
paragraph:

As
of
the
date
of
promulgation
of
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education,
or
be
certified
in
the
management
of
hazardous
materials
or
other
relevant
field
of
practice
by
a
third­
party
accredited
professional
organization,
and
have
ten
(
10)
years
of
full­
time
relevant
experience.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
274
Excerpt
Number:
2
Excerpt
Text:
KCHMM
is
encouraged
by
EPA's
decision
to
"
grandfather"
individuals
who
as
of
the
date
of
promulgation
of
the
final
rule
"
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
have
ten
(
10)
years
of
full­
time
of
relevant
experience"
as
environmental
professionals.
40
CFR
§
312.10
(
2)(
iv).
KCHMM
recommends
that
the
definition
of
"
environmental
professional"
in
40
CFR
§
312.10
(
2)(
iv)
be
amended
to
include
individuals
certified
by
professional
organizations,
such
as
ACHMM,
as
follows:

­
As
of
the
date
of
promulgation
on
this
rule,
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
and
have
ten
(
10)
years
of
full­
time
of
relevant
experience,
or
be
an
individual
certified
by
a
professional
organization
with
third
party
accreditation
and
have
ten
(
10)
years
of
full­
time
relevant
experience.

In
the
case
of
a
CHMM,
such
an
individual
would
have
the
following
qualifications:
(
1)
be
certified
prior
to
2003,
(
2)
have
at
least
twelve
years
or
more
of
experience
in
the
field
of
managing
hazardous
materials;
(
3)
demonstrated
knowledge
and
understanding
of
the
basic
principles
involved
in
hazardous
materials
management,
including
an
understanding
of
the
regulations
governing
sites,
(
4)
passed
a
rigorous
exam;
and
(
5)
pledged
to
maintain
the
highest
standards
of
integrity
through
the
CHMM
Code
of
Ethics.

Response:
Please
see
response
to
comment
number
0399,
excerpt
3.

Commenter
Organization
Name:
Braman,
Marshal
Comment
Number:
0454
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.6
­
Revise
educational
requirements
to
allow
individuals
with
substantial
relevant
work
experience
to
qualify
as
EPs
Excerpt
Text:
I
have
been
conducting
Phase
1,
2
and
3
work
for
the
past
15
years
(
1989).
Many
of
which
I
was
in
a
supervisory
and
project
manager
responsibility
level.
I
have
2
years
of
science
education
from
a
Community
College
and
2
years
of
education
in
commercial
horticulture
from
a
Technical
College.
I
successfully
completed
the
horticultural
program
although
it
did
not
offer
a
baccalaureate
degree.
In
addition
I
have
attended
numerous
seminars
over
the
past
15
years
to
develop
skills
specific
to
phase
1
and
2
work,
OSHA
training,
environmental
discovery
and
remediation.

I
have
personally
prepared
over
100
phase
1
investigations.

Further,
I
have
also
reviewed
in
a
supervisory
capacity
over
200
phase
1
investigations.

It
is
my
understanding
that
I
would
not
qualify
as
an
environmental
professional
under
the
proposed
rules.
275
In
all
of
the
projects
that
I
have
been
involved
in
I
have
never
had
a
phase
1
project
in
which
issues
of
environmental
concern
were
identified
subsequent
to
completion
of
the
assessment.

I
bring
this
to
your
attention
because
I
very
much
enjoy
my
career
choice
of
being
an
environmental
specialist.
If
this
regulation
passes
in
it's
present
form
I
will
not
be
allowed
to
perform
my
job.
I
do
not
want
that
to
happen.

Please
include
an
additional
grandfather
provision
for
a
combination
of
education
and
experience
equal
to
14
or
15
years.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
276
Commenter
Organization
Name:
Dillman,
Malcolm
Comment
Number:
PM­
0359­
0001
Excerpt
Number:
1
Excerpt
Text:
My
first
concern
is
with
the
qualifications
for
designation
of
Environmental
Professional
as
defined
in
Subpart
B­
312.1
­­
or
.10
­­
excuse
me
­
the
requirement
of
any
baccalaureate
degree
from
an
accredited
institution
and
ten
years
of
full­
time
relevant
experience.

I
must
ask
the
question,
what
does
an
individual
with
a
degree
in
sociology
or
communications
or
music
offer
above
an
individual
without
any
degree
that
has
the
equivalent
or
greater
full­
time
relevant
experience
and
perhaps
more
actual
field
experience?

Under
different
programs
that
the
EPA
has,
they
provide
for
experience,
completion
of
a
course
and/
or
passing
an
examination
to
qualify
individuals,
regardless
of
a
degree,
in
areas
where
the
health
and
welfare
of
children
are
at
stake.

The
EPA
requirements
for
lead­
based
paint
risk
assessor
are
­­
and
I'm
reading
from
the
website
­
pass
an
accredited
inspector
course;
pass
an
EPA­
accredited
risk
assessor
course;
pass
an
EPA
assessor
certification
examination;
and
meet
one
of
the
following
requirements:
A,
a
bachelor's
degree
and
one
year
experience;
or,
an
associate's
degree
and
two
years
of
experience
in
a
related
field;
or
C,
certification
as
an
industrial
hygienist,
professional
engineer,
registered
architect
and/
or
certification,
registered
­­
or
excuse
me
­­
related
engineering
health
or
environmental
field;
or
D,
a
high
school
diploma
or
equivalent
diploma,
or
equivalent,
and
at
least
three
years'
experience
in
a
related
field.
The
lead­
based
paint
risk
assessor
makes
judgments
that
have
implications
on
the
protection
of
human
health;
specifically,
children
under
six.

State
programs
also
provide
for
certifications
of
Environmental
Professional
with
depth
of
environmental
experience
that
allows
them
to
make
appropriate
judgments
based
on
the
available
data.
Some
of
these
states
are
the
Nevada
Certified
Environmental
Manager
program.
Their
requirements:
Again,
a
college
degree
in
environmental
science
relevant
to
professional
registration,
or
a
combination
of
education/
experience
judged
by
the
Division
itself.
And
that's
the
Environmental
Protection
Division
of
Nevada.

In
Utah,
the
U.
S.
D.
Consultant
program
requires
that
­­
provided
its
acceptance
in
this
of
a
bachelor's
or
advanced
degree
from
an
accredited
college
or
university
with
major
study
in
environmental
health,
engineering,
biological,
chemical,
environmental
or
physical
science;
or
equivalent
education
and
experience
as
determined
by
the
Executive
Secretary
of
the
Division
of
Environmental
Response
and
Remediation
in
Utah.

California
has
a
program
to
be
a
Registered
Environmental
Assessor.
Their
program
requires
a
bachelor's
or
higher
degree
from
an
accredited
college
or
university
in
physical
or
biological
science,
engineering
or
law,
or
five
years
of
substantial
experience
acquired
within
the
last
eight
years
performing
environmental
assessments
relating
to
hazardous
277
substances
and/
or
hazardous
waste
management.

I
would
suggest
that
over
ten
years'
experience
and
hundreds
or
thousands
of
report
submissions
would
have
weeded
out
the
incompetent
people
in
this
business.

I
would
respectfully
submit
that
the
grandfather
clause
be
amended
to
accept
those
environmental
professionals
with
a
minimum
of
ten
years'
experience
where
that
experience
is
valid
and
can
be
documented.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
278
2.1.8.2
The
Grandfather
Clause
is
Not
Stringent
Enough
Commenter
Organization
Name:
Engels,
Joseph
G
Comment
Number:
0088
Excerpt
Number:
2
Excerpt
Text:
I
am
discouraged
by
the
grandfather
clause
designation
for
persons
with
10
years
of
experience
as
qualified
environmental
professionals.
From
my
experience,
persons
who
do
not
have
a
college
education
and
degree
in
a
technical
area
relevant
to
this
practice
are
not
qualified
to
make
sound
technical
decisions
and
to
offer
opinions
of
a
technical
nature
having
to
do
with
groundwater
flow,
chemical
reactions
and
processes,
health
risks,
etc.
As
an
analogy,
is
someone
with
a
history
or
english
degree
ever
qualified
to
offer
legal
or
medical
opinions?
Is
it
really
in
the
public's
interest
to
allow
unqualified
persons
to
practice?
That
being
said,
the
proposed
rule
does
raise
the
bar
for
a
minimum
practice
standard
and
should
help
to
weed
out
some
of
the
bottom
feeders
who
exist
in
this
industry.
All
things
considered,
I
support
the
rule.

Response:
The
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
qualifications
for
environmental
professionals
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."
279
The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Simon,
Richard
M
Comment
Number:
0089
Excerpt
Number:
3
Excerpt
Text:
I
am,
however,
concerned
with
the
'
grandfather'
designation
of
certain
environmental
professionals.
In
my
firm,
we
will
only
allow
those
who
have
met
the
requisite
education,
training,
and
experience
to
practice
as
environmental
professionals.

Response:
Please
see
response
to
comment
number
0088,
excerpt
2.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0209
Excerpt
Number:
2
Excerpt
Text:
Finally,
grandfathering
of
unlicensed
individuals
who
are
currently
acting
in
the
capacity
of
Qualified
Environmental
Professionals
will
merely
carry
forward
the
issues
that
originally
led
to
this
rule
being
published.
Therefore,
no
individual
should
be
grandfathered.

Response:
Please
see
response
to
comment
number
0088,
excerpt
2.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
2
Excerpt
Text:
NSPE
is
concerned
that
the
rulemaking
as
it
is
currently
written
has
little
ability
to
regulate
the
persons
who
take
on
the
title
of
environmental
professional.
EPA
does
not
specify
any
monitoring
or
screening
of
the
environmental
professionals'
qualifications,
and
we
are
concerned
that
this
would
open
the
door
for
abuse
and
leave
the
public
with
little
protection.
The
rule
allows
any
individual
who
is
under
the
subjective
belief
that
280
they
possess
the
qualification
required
under
the
proposed
rule
to
ply
their
craft
on
the
unwitting
public.
The
public
is
provided
no
method
with
which
to
objectively
measure
the
abilities
or
qualifications
of
these
persons
or
any
ability
to
objectively
measure
or
know
that
a
particular
individual
actually
meets
these
requirements.
A
proposed
rule
that
allows
environmental
professionals
to
self­
police
themselves
seems
contrary
to
public
policy
and
is
something
that
should
be
avoided.

Response:
The
environmental
professional
overseeing
the
conduct
of
the
all
appropriate
inquiries
investigation
must
indicate
when
he
or
she
signs
the
report
of
findings
for
the
all
appropriate
inquiries
investigation
that
he
or
she
meets
the
definition
of
environmental
professional
included
in
the
final
rule
(
see
final
rule
section
312.21(
d)).
EPA
is
not
going
to
collect,
evaluate,
or
verify
the
credentials
or
qualifications
of
individual
environmental
professionals.
Should
a
prospective
property
owner
need
advice
on
how
to
find
a
qualified
environmental
professional,
the
prospective
property
owner
may
want
to
request
advice
from
a
private
professional
certification
organization
or
a
state
licensing
board
for
P.
E.
s
and
P.
G.
s.

We
leave
enforcement
of
this
rule
up
to
the
courts.
However,
if
a
property
owner
or
grantee
is
seeking
liability
protection,
it
is
in
their
best
interest
that
they
find
an
environmental
professional
who
will
adequately
perform
the
work.
Further,
as
is
the
case
generally,
an
individual
may
have
recourse
against
somebody
who
misrepresents
themselves
as
an
environmental
professional
who
is
actually
not
an
environmental
professional.
However,
the
commenter's
point
is
a
good
one
 
consumers
of
this
service
must
be
selective
in
their
selection
of
an
EP.

Commenter
Organization
Name:
Lindberg,
David
Comment
Number:
0313
Excerpt
Number:
1
Excerpt
Text:
I
am,
however,
very
concerned
with
the
proposed
"
grandfather"
designation
of
certain
environmental
professionals.
In
our
firm,
we
will
only
allow
those
who
have
met
the
requisite
education,
training,
and
experience
to
practice
as
environmental
professionals.
To
do
less
would
be
a
disservice
to
those
who
rely
on
our
expertise.

Response:
Please
see
response
to
comment
number
0088,
excerpt
2.

Commenter
Organization
Name:
Herin
Comment
Number:
0329
Excerpt
Number:
2
Excerpt
Text:
­
With
respect
to
the
definition
of
an
environmental
professional
(
EP),
I'd
offer
that
paragraph
312.10(
b)(
2)(
iv)
provides
some
perhaps
unintended
loopholes
and
should
be
281
deleted.
Further,
regarding
the
description
of
"
relevant
experience",
I
would
offer
that
EPA
consider
adding
language
indicating
the
EP
must
be
able
to
demonstrate
professional
environmental
site
assessment
experience
associated
with
the
type
of
landuse
operations
which
are
known
to
be
involved
with
the
site
being
evaluated.

Response:
Please
see
response
to
comment
number
0088,
excerpt
2.

Given
the
large
variety
of
uses
that
may
occur
at
any
one
property
over
time
and
although
EPA
understands
the
merits
of
the
commenter's
suggested
revision
to
the
definition
of
relevant
experience,
imposing
such
a
requirement
could
be
overly
burdensome
to
both
prospective
property
owners
and
businesses
that
conduct
all
appropriate
inquiries.

Commenter
Organization
Name:
CA
Board
For
Geologists
and
Geophysicists
Comment
Number:
0358
Excerpt
Number:
1
Excerpt
Text:
The
Board
strongly
concurs
in
Section
312.10(
b)(
4)
of
the
proposed
rule
which
states:

­"
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
(
emphasis
added),
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
Section
312.21(
b)."

The
State
of
California
requires
licensure
for
the
professional
practice
of
engineering
and
geology.
It
is
inappropriate,
and
possibly
illegal,
for
the
proposed
"
environmental
professionals"
to
engage
in
the
practice
of
geology
or
engineering
in
the
environmental
characterization
and
remediation
of
Brownfields
sites.

Any
and
all
proposed
"
grandfathering"
clauses
as
stated
in
the
proposed
rulemaking
change
should
be
removed.
Any
references
to
unlicensed
individuals
being
qualified
by
the
federal
Government
to
perform
this
type
of
work
should
also
be
stricken.
Professional
licensure
is
the
only
mechanism
allowed
by
law
in
California
for
this
type
of
activity.

Response:
The
final
all
appropriate
inquiries
rule
only
establishes
requirements
for
the
conduct
of
all
appropriate
inquiries
for
the
purpose
of
establishing
liability
protection
under
CERLCA,
which
is
a
federal
statute.
States
are
free
to
regulate
specific
actions
related
to
state
law
more
stringently.
For
instance,
states
can
require
individuals
who
install
monitoring
devices
to
be
certified
geologists
or
be
state
certified,
etc.
However,
to
comply
with
the
Federal
All
Appropriate
Inquiries
Rule
and
receive
federal
liability
protection,
one
must
meet
the
standards
articulated
in
the
final
rule.
282
Commenter
Organization
Name:
Smith,
Michael
Comment
Number:
0360
Excerpt
Number:
3
Excerpt
Text:
I
am,
however,
concerned
with
the
"
grandfather"
designation
of
certain
environmental
professionals.
In
my
firm,
we
will
only
allow
those
who
have
met
the
requisite
education,
training,
and
experience
to
practice
as
environmental
professionals.

Response:
Please
see
response
to
comment
0088,
excerpt
2.
283
2.1.8.3
The
Proposed
Minimum
Requirements
Will
Have
a
Negative
Impact
on
the
ESA
Industry,
Small
Businesses,
and
the
Real
Estate
Market
Commenter
Organization
Name:
Gasper,
Matthew
P
Comment
Number:
0041
Excerpt
Number:
2
Excerpt
Text:
I
believe
that
the
proposed
rule
by
the
EPA
places
an
undue
strain
on
small
businesses
like
mine.

Response:
EPA
estimates
that
the
impacts
of
the
final
rule,
on
the
whole,
will
not
be
significant
for
small
entities.
We
estimate
that,
for
the
majority
of
small
entities,
the
average
incremental
cost
of
the
final
rule
relative
to
conducting
an
ASTM
E1527­
2000
Phase
I
Environmental
Site
Assessment
will
be
between
$
52
and
$
58.
When
we
annualize
the
incremental
cost
of
$
58
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
$
8.
Thus,
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
rule
to
small
entities
is
included
in
"
Economic
Impacts
Analysis
of
the
Final
All
Appropriate
Inquiries
Regulation."
This
document
is
included
in
the
docket
for
today's
rule.

Commenter
Organization
Name:
Brenn
Comment
Number:
0055
Excerpt
Number:
2
Excerpt
Text:
As
this
proposal
is
presently
being
presented,
I
know
that
this
burden
being
placed
on
lenders
and
property
owners
will
have
a
big
effect
on
real
estate
sales
and
financing.
Some
areas,
such
as
the
area
I
live
in,
have
very
few
people
that
do
this
type
of
work
and
most
of
them
are
not
engineers.
I
further
believe
that
the
area
that
I
serve;
Western
Nebraska
and
the
southwestern
part
of
South
Dakota
have
no
environmental
inspectors
that
have
the
knowledge
of
the
area.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.
284
In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
The
modifications
to
the
definition
of
environmental
professional
also
should
alleviate
difficulties
in
finding
qualified
individuals
to
conduct
all
appropriate
inquiries
investigations.

Commenter
Organization
Name:
None
Comment
Number:
0087
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.6
­
Revise
educational
requirements
to
allow
individuals
with
substantial
relevant
work
experience
to
qualify
as
EPs
Excerpt
Text:
I
think
that
it
is
wrong
to
disregard
the
many
years
of
experience
that
lots
of
professionals
have
just
because
they
do
not
have
a
college
degree.
There
should
be
some
provision
in
this
regulation
to
allow
non­
degreed
professionals
with
a
certain
amount
of
professional
experience
in
the
field
to
be
grandfathered
in
as
"
Environmental
Professionals".
The
way
this
portion
of
the
regulation
is
now
written
is
unfair
and
is
going
to
cost
alot
of
highly
qualified
and
experienced
people
to
lose
their
livelihoods.
It
is
essential
that
a
grandfathering
provision
be
included
in
this
regulation.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
285
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
13
Excerpt
Text:
I
realize
that
the
task
of
the
AAI
committee
is
a
difficult
one,
but
a
certain
amount
of
"
common
sense"
regarding
the
"
environmental
professional"
issue
is
extremely
important
and
cannot
in
my
opinion
be
overemphasized.
I
would
dare
to
estimate
how
many
currently
trained
individuals
such
as
myself
are
on
the
brink
of
losing
some
of
their
workplace
flexibility
or
current
"
livelihood",
especially
at
my
age
(
53),
because
they
do
not
have
a
degree.

I
have
not
even
addressed
my
opinion
as
to
what
I
feel
this
new
AAI
ruling
is
going
to
do
to
the
current,
very
competitive
market
for
ESA
costs.
I
feel
that
the
committee
is
likely
very
optimistic
that
it
will
not
have
a
significant
influence
in
cost,
but
I
can
assure
you
that
in
this
"
real
world"
where
professionally
registered
persons
are
used...
that
service
has
to
be
paid
for
and
is
not
as
inexpensive
as
using
technically
trained
and
competent
persons.
I
thank
you
in
advance
for
your
time
and
attention
to
my
additional
comments
286
and
questions.

Further
government
involvement
with
already
established
guidelines
which
in
the
"
real
world"
seem
to
work
is
often
times
an
unappreciated
task
at
hand,
but
is
necessary
to
protect
both
human
health
and
the
environment.
Proposing
rules
that
are
beneficial
to
those
ends
expend
valuable
tax
dollars,
and
take
endless
hours
to
prepare.
What
I
feel
each
individual
in
preparing
those
rules
should
ask
themselves
is,
"
Is
what
is
being
proposed...
reasonable
and
based
on
common
sense
guidelines,
and
not
politically
motivated
or
creating
undue
burdens?"

Response:
Please
see
response
to
comment
number
0087,
excerpt
1.

Commenter
Organization
Name:
EAI
Comment
Number:
0109
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.7
­
Revise
the
grandfather
clause
to
allow
all
individuals
currently
conducting
site
assessments
to
qualify
as
EPs
Excerpt
Text:
I
think
you
should
expand
on
the
proposed
grandfathering
of
current
environmental
inspectors,
the
way
i
understand
the
current
rule
proposed
,
would
put
a
lot
of
professionals
out
of
business,
this
is
contrary
to
what
the
government
should
do!

Response:
Please
see
response
to
comment
number
0087,
excerpt
1.

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
1
Excerpt
Text:
The
EPA
has
proposed
that
a
professional
engineer
be
placed
above
all
environmental
and
other
professional
qualifications
in
the
signing­
off
on
all
appropriate
inquiry
investigations.
The
current
rules
only
state
what
one
must
do
to
conduct
such
an
inquiry
­
the
proposed
rule
states
who
that
person
has
to
be.
Such
an
unwarranted
elevation
of
roles
endangers
the
public
well­
being,
hurts
small
businesses,
and
could
slow
down
home
building
­
one
of
the
primary
engines
of
our
economy.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
287
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

In
the
case
where
a
state
or
tribal
government
does
not
have
a
professional
licensing
or
certification
program,
the
final
rule
provides
other
options
for
qualifying
as
an
environmental
professional
(
i.
e.,
experience
and
educational
requirements).
EPA
does
not
have
an
environmental
professional
licensing
program
and
has
no
plans
to
establish
such
a
program.
The
commenter
is
incorrect
in
asserting
that
in
those
cases
where
a
state
does
not
have
a
licensing
program
for
professional
geologies,
"
the
U.
S.
EPA
will
be
required
to
process
and
verify
the
accuracy
and
completeness
of
each
application."

The
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
288
Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
2
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
First,
under
the
proposed
rule,
an
engineer
with
no
environmental
training
at
all
can
be
made
responsible
for
assessing
land
with
significant
environmental
contamination.
"
All
appropriate
inquiries"
require
data
collection
and
visual
inspection.
Such
duties
do
not
translate
into
the
professional
certification
of
"
engineer."
Placing
someone
in
charge
of
evaluating
environmental
liabilities
with
no
formal
environmental
training
is
a
risk
to
the
public
health.

Response:
The
final
rule
requires
professional
engineers
to
have
at
least
three
years
of
full­
time
relevant
experience
to
meet
the
definition
of
an
environmental
professional.

Please
also
see
response
to
comment
number
0087,
excerpt
1.

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
3
Excerpt
Text:
Second,
land
evaluation
and
appraisal
is
a
business
engaged
in
by
many
smaller
firms
and
sole
proprietorships.
Forcing
all
of
these
businesses
to
hire
the
services
of
a
Professional
Engineer
for
no
significant
interest
of
the
public
good
is
an
undue
burden
that
will
force
many
small
businesses
out
of
business.

Thirdly,
placing
the
over­
baring
requirement
of
having
an
engineer
as
the
ultimate
stopgap
to
all
appropriate
inquiries
could
slow
down
the
home
building
market.
If
the
EPA
proposed
rules
do
take
affect,
all
current
land
evaluations
will
have
to
stop
while
the
services
of
engineers
are
sought
and
companies
try
to
figure­
out
a
way
to
pay
for
the
added
cost
of
more
personnel
and
yet
another
layer
of
middle
management
placed
on
them
by
the
government
that
is
actually
serving
to
endanger
the
public
health
rather
than
protect
it.
Even
the
National
Home
Builders
Association
has
requested
EPA
to
examine
§
312.10(
b)(
1)(
i­
iv)
since
listening
to
the
National
Registry
of
Environmental
Professionals
("
NREP")
testimony
to
EPA.

Fourthly,
the
bill/
rule
is
discriminatory
in
nature
to
other
environmental
professionals,
and
will
reduce
competition
among
other
environmental
professions.
If
competition
among
the
environmental
professions
is
reduced,
it
will
give
a
select
number
of
geologists
and
engineers
the
opportunity
to
fix
prices
and
maintain
a
monopoly
over
assessments
of
environmentally
tainted
property.
289
Response:
It
is
EPA's
opinion
that
this
rule
will
not
affect
the
market
for
real
estate
appraisals.
Appraisal
firms
will
certainly
not
have
any
requirements
to
hire
the
services
of
a
professional
engineer
to
render
an
appraisal.

The
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
qualifications
for
environmental
professionals
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
The
definition
of
environmental
professional
in
the
final
rule
does
not
require
an
individual
to
be
an
engineer
to
qualify
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
The
modifications
made
to
the
definition
of
environmental
professional
should
alleviate
the
290
commenter's
concerns
regarding
the
costs
associated
with
finding
and
employing
qualified
environmental
professionals
to
conduct
all
appropriate
inquiries
investigations.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
2
Excerpt
Text:
­
Employment.
If
enacted
in
the
current
form,
the
regulation
has
a
potentially
severe
impact
on
education
and
educational
employment
(
short
term
and
long
term).
There
are
787
higher
education
programs
that
offer
environmental
science
that
will
be
affected
by
the
regulation.

­
Antidiscrimination.
The
law
in
its
current
form
potentially
violates
U.
S.
Antidiscrimination
laws
and
has
a
significant
reduction
impact
on
minority
businesses
in
the
environmental
profession.
The
total
number
of
non­
engineering
environmental
professionals
in
the
United
States
is
estimated
at
1,120,584.
The
total
number
of
black
non­
engineering
environmental
professionals
is
estimated
at
100,853.

­
Antitrust
Implications.
The
top
five
(
5)
engineering
firms
in
the
U.
S.
control
close
to
35%
of
the
gross
U.
S.
revenues
and
engineering
work
of
$
7
billion.
The
next
ten
(
10)
control
30%
with
only
35%
left
to
be
split
up
among
all
of
the
rest.
This
regulation
in
its
proposed
form
will
wipe
out
the
smaller
firms
due
to
a
legalized
monopoly
and
bankruptcy
from
resulting
impacts.

Response:
EPA
disagrees
with
the
commenter's
assertion
that
education
and
employment
will
be
adversely
affected
by
the
final
rule.
The
commenter
cites
very
broad
statistics
with
regard
to
the
market
for
engineering
services.
EPA
contends
that
the
market
for
Phase
I
site
assessment
services
is
much
more
competitive
than
the
commenter
is
asserting.
The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

The
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
the
merits
of
setting
a
high
standard
of
excellence
for
the
conduct
of
all
appropriate
inquiries
through
the
establishment
of
qualifications
for
environmental
professionals
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.
The
definition
of
environmental
professional
in
the
final
rule
does
not
require
an
individual
to
be
an
engineer
to
qualify
as
an
environmental
professional.

Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
291
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.

In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
EPA
believes
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
The
modifications
made
to
the
definition
of
environmental
professional
should
alleviate
the
commenter's
concerns
regarding
the
costs
associated
with
finding
and
employing
qualified
environmental
professionals
to
conduct
all
appropriate
inquiries
investigations.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
5
Excerpt
Text:
Second,
land
evaluation
and
appraisal
is
a
business
engaged
in
by
many
smaller
firms
and
sole
proprietorships.
Forcing
all
of
these
businesses
to
hire
the
services
of
a
Professional
292
Engineer
for
no
significant
interest
of
the
public
good
is
an
undue
burden
that
will
force
many
small
businesses
out
of
business.
As
these
businesses
are
closed,
unemployment
in
the
environmental
and
property
assessment
professions
will
increase.
These
individuals
will
also
be
forced
to
retrain
and
build
new
skill
sets
that
will
place
a
burden
on
individual
State
economies
in
terms
of
welfare
and
job­
training.

Thirdly,
placing
the
over­
bearing
requirement
of
having
an
engineer
as
the
ultimate
stopgap
to
all
appropriate
inquiries
could
slow
down
the
home
building
market.
If
the
EPA
proposed
rule
does
take
affect,
then
all
current
land
evaluations
will
have
to
stop
while
the
services
of
engineers
are
sought.
Companies
will
be
forced
to
try
to
figure­
out
a
way
to
pay
for
the
added
cost
of
more
personnel
and
yet
another
layer
of
middle
management
placed
on
them
by
the
government
that
is
actually
serving
to
endanger
the
public
health
rather
than
protect
it.
The
only
way
around
this
risk
is
to
grandfather
all
environmental
professionals
into
the
provision
of
the
Federal
legislation.
Even
the
National
Home
Builders
Association
has
requested
EPA
to
examine
§
312.10(
b)(
1)(
i­
iv)
if
it
could
be
an
additional
burden
on
home
builders
and
buyers
requiring
a
Professional
Engineer
or
Professional
Geologist.
It
is
important
to
note
that
housing
starts
in
the
US
are
expected
to
fall
7.6%
starting
in
2005.
This
regulation
will
increase
this
negative
impact
further.
[
Footnote:
Industrial
Survey:
Environmental
and
Waste
Management,
(
New
York;
Standard
and
Poors,
October
7)
29.]

Fourthly,
the
bill/
rule
is
discriminatory
in
nature
to
other
environmental
professionals,
and
will
reduce
competition
among
other
environmental
professions.
If
competition
among
the
environmental
professions
is
reduced,
it
will
give
a
select
number
of
engineers
the
opportunity
to
fix
prices
and
maintain
a
monopoly
over
assessments
of
environmentally
tainted
property.
Current
funding
of
antitrust
regulation
enforcement
at
the
Federal
level
does
not
take
into
account
antitrust
investigation
funding
needed
to
police
probable
abuses
that
this
bill/
rule
will
enable.

Response:
The
definition
of
environmental
professional
in
the
final
rule
is
not
restricted
to
engineers.

Please
see
response
to
comment
number
0225,
excerpt
3.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
7
Excerpt
Text:
If
enacted
in
current
form,
the
regulation
has
a
potentially
severe
impact
on
education
and
educational
employment
(
short
term
and
long
term).
There
are
787
higher
education
programs
that
offer
environmental
science
that
will
be
affected
by
the
regulation.
On
average,
200
students
per
university
will
be
affected
by
the
regulation
over
a
four
year
period.
This
number
equates
to
50
per
year
(
freshman
through
senior)
for
each
college.
293
This
estimated
number
equals
157,400
students,
and
does
not
include
individuals
already
employed
in
the
environmental
professions
(
non­
engineering/
geology).
If
you
include
graduate
programs,
this
number
could
climb
as
high
as
250,000
students.
According
to
the
U.
S.
Department
of
Education,
median
college
tuition
cost
for
a
four­
year
environmental
education
degree
is
about
$
10,000
per
year,
and
can
go
higher
in
competitive
private
universities.
Potential
tuition
lost
by
universities
and
colleges
due
to
this
regulation
are
nearly
$
10,000,000,000.

This
number
is
calculated
by
taking
the
number
of
students
and
multiplying
it
by
the
tuition
and
length
of
education.
This
number
could
be
lower
in
some
areas
depending
on
state
and
residency
requirements
imposed
by
the
schools.
The
impacted
number
could
also
be
significantly
higher
depending
on
residency
and
duration
of
education
(
more
that
4
years).
It
can
also
be
argued
that
students
under
this
law
will
be
forced
to
study
engineering
and/
or
geology
to
become
an
environmental
professional.
This
action
will
force
students
to
switch
majors
of
study
in
4­
year
universities.
As
a
result
of
switched
majors,
students
at
these
universities
will
be
forced
to
delay
their
education
by
1
to
2
years
depending
on
the
number
of
science
credits
that
can
be
applied
to
an
engineering
degree.
Again,
this
indirect
impact
from
the
regulation
will
place
financial
hardship
on
students
and
families.
Using
estimated
numbers
from
the
US
Department
of
Education,
this
cost
will
exceed
$
2,500,000,000
per
year
(
250,000
environmental
students
times
$
10,000).

This
rule
will
be
strongly
felt
on
environmental
education.
It
is
estimated
that
1250
environmental
professors
at
environmental
universities
nationwide
will
have
to
seek
work
at
other
universities
or
remain
unemployed.
This
estimate
is
based
on
one
professor
for
every
200
students.
The
number
of
unemployed
environmental
educators
coupled
with
the
number
of
non­
engineering
environmental
students
will
impact
unemployment
rates
nationwide.
This
increased
number
of
unemployed
non­
engineering
professionals
across
the
United
States
will
be
economically
harmed
by
any
rise
in
the
consumer
price
index.

Response:
The
Agency
disagrees
with
the
commenter's
assertions.
The
final
rule
does
not
require
individuals
to
become
PE's
or
PG's
to
qualify
as
an
environmental
professional.
Please
see
response
to
comment
number
0225,
excerpt
3.

Commenter
Organization
Name:
Gaugler,
Earl
Comment
Number:
0327
Excerpt
Number:
2
Excerpt
Text:
The
negative
impact
from
isolating
other
groups
of
professionals
will
(
1)
drive
costs
up
for
clients
as
engineer
oversight
can
be
costly
(
especially
when
all
they
may
do
is
review
the
work
of
others
and
place
their
PE
stamp
on
the
final
report),
and
(
2)
restrict
the
work
of
individuals
fully
qualified
to
conduct
a
Phase
I
assessment
and
other
aspects
of
environmental
inspection.
294
Response:
The
final
rule
does
not
require
individuals
to
become
PE's
or
PG's
to
qualify
as
an
environmental
professional.
Please
see
response
to
comment
number
0225,
excerpt
3.

Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
1
Excerpt
Text:
Baker
Petrolite
Corporation
(
BPC)
is
concerned
that
the
proposed
definition
of
environmental
professional
will
impose
an
unnecessary
financial
burden
on
businesses
which
employ
full­
time
environmental
staff
and
occasionally
perform
Phase
I
Environmental
Site
Assessments
(
ESAs)
on
prospective
properties
for
purchase
or
lease.
In
some
cases,
BPC
conducts
environmental
assessments
per
the
All
Appropriate
Inquiry
(
AAI)
requirements
in
order
to
qualify
as
a
bona
fide
prospective
purchaser
or
innocent
landowner
and
obtain
liability
protection
under
the
2002
amendments
to
CERCLA
(
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act).
This
proposed
rule
may
force
businesses,
including
BPC,
to
utilize
the
services
of
an
external
environmental
consultant
for
tasks
that
have
traditionally
been
handled
by
qualified
environmental
staff
within
the
corporation.
With
regards
to
the
additional
cost
this
will
present,
BPC
requests
that
EPA
consider
the
following
comments
and
questions.

Response:
Please
see
response
to
comment
number
0225,
excerpt
3.

Commenter
Organization
Name:
Kammeraad,
Norman
Comment
Number:
0357
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.7
­
Revise
the
grandfather
clause
to
allow
all
individuals
currently
conducting
site
assessments
to
qualify
as
EPs
Excerpt
Text:
The
langauge
being
used
in
312.10
does
not
provide
for
Grand
fathering
of
all
ready
existing
individuals
who
have
practiced
in
the
field
of
environmental
assessments
for
years.
If
this
rule
was
to
take
effect,
much
like
the
Michigan
Act
451,
Part
213
QC,
CP
rules
of
1994
which
has
similar
langauge,
EPA
will
forcefully
remove
the
conduct
of
1000'
s
of
individuals.
This
would
be
a
violation
of
Federal
Law
U.
S.
C.
A.
Const.
Amend.
1
Further,
there
is
a
requirement
to
be
met
by
the
legislature
and
Agency
in
the
promulgation
and
enforcement
of
legislation
which
is
known
as
a
?
compelling
state
interest
test?
that
would
in
turn
provide
the
Agency
(
EPA)
authorization
to
eliminate
the
free
exercise
of
an
individual?
s
conduct.
A
statutory
classification
or
rule
that
infringes
on
a
person's
exercise
of
a
fundamental
right
must
be
justified
by
a
compelling
state
interest
and
achieved
by
narrowly
drawn
means.
Carey
v.
Population
Services
Int'l,
431
U.
S.
678,
97
S.
Ct.
2010,
52
L.
Ed.
2d
675
(
1977);
A
Compelling
State
Interest
must
be
truly
compelling,
"
threatening
safety
or
welfare
of
the
state
in
a
clear
and
present
295
manner",
for
restriction
to
survive
free
exercise
challenge
under
the
First
Amendment.
Thus,
only
the
States
have
the
right
to
enforce
and
remove
a
persons
conduct
via
threat
to
Health
and
welfare.
Many
firms
(
including
mine)
throughout
the
US,
have
worked
with
either
SBA,
USDA
and
Brownfields
programs
either
directly
or
indirectly.
To
remove
their
conduct
by
not
providing
Grandfatherization
rules,
is
the
same
as
removing
their
conduct
and
thus
income.
Thus,
language
is
needed
in
Section
312.10
of
the
AAI
rules
that
also
includes
them
by
definition
to
protect
them.

Response:
EPA
asserts
that
the
Agency
has
the
authority
to
establish
qualifications
for
persons
conducting
all
appropriate
inquiries.
The
CERCLA
statute
at
section
101(
35)(
2)(
B)(
ii)
includes
criteria
that
EPA
must
include
in
the
regulations
governing
federal
standards
and
practices
for
conducting
all
appropriate
inquiries.
One
criterium
is
"
the
results
of
an
inquiry
by
an
environmental
professional."

The
final
rule
recognizes
tribal
and
state­
licensed
P.
E.
and
P.
G.
s
and
other
such
state
and
tribal
government
licensing
environmental
professional
programs.
Individuals
with
a
state
certification
or
license
and
three
years
of
experience
to
be
environmental
professionals
qualify
as
environmental
professionals
for
the
purposes
of
the
all
appropriate
inquiries
rulemaking.
However,
the
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Please
also
see
response
to
comment
number
0225,
excerpt
3.
296
Commenter
Organization
Name:
EAA
Comment
Number:
0366
Excerpt
Number:
3
Excerpt
Text:
Further,
from
the
standpoint
of
the
user,
if
the
current
proposed
requirements
of
the
EC
stand,
the
availability
of
the
product
would
be
severely
impacted.
This
impact
would
include
the
fact
that
the
service
providers
would
be
limited
on
a
national
level,
which
would
cause
a
significant
increase
of
price
to
the
user,
and
a
significantly
slower
process
of
completion
of
work
and
scheduling.
Additionally,
it
is
felt
that
the
overall
quality
of
service
and
product
would
suffer
because
of
the
limited
number
of
service
providers
being
so
overextended.

Response:
Please
also
see
response
to
comment
number
0225,
excerpt
3.

The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
2
Excerpt
Text:
We
ask
that
the
EPA/
Committee
consider
that
the
proposal
would
detrimentally
impact
the
employment
and
limit
opportunities
of
employees
hired
to
perform
AAIs
before
the
regulation
came
into
existence.
It
appears
that
the
EPA/
Committee
is
ignoring
the
ability
of
employers
to
select
professionals
to
fill
AAI
related
positions.
If
the
proposed
definition
is
adopted,
only
2/
3
of
our
staff
performing
AAIs
will
meet
the
definition
of
environmental
professional.
Our
staff
members
who
perform
AAIs
were
selected
based
upon
individual
experiences,
education
and
other
salient
skills
and
knowledge.
Please
keep
in
mind
that
it
is
an
employer's
obligation
to
meet
the
tenets
of
all
appropriate
inquiry
and
employers
are
liable
if
they
employ
individuals
who
are
not
capable
of
performing
AAIs.

Response:
Please
also
see
response
to
comment
number
0225,
excerpt
3.
297
The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
13
Excerpt
Text:
The
Proposed
Rule's
definition
of
an
"
environmental
professional"
is
overly
stringent
and
arbitrary.
The
qualifications
under
the
Proposed
Rule
for
EPs
will
in
some
cases
force
potential
owners
to
go
through
the
expense
of
hiring
or
contracting
with
a
Professional
Engineer,
or
other
"
qualified"
professional
under
the
standard,
to
conduct
AAIs,
when
current
staff
may
be
better
qualified
and
equipped
to
do
so.
This
will
significantly
increase
the
cost
of
conducting
Phase
I
inquiries,
without
commensurate
benefit.

Response:
Please
also
see
response
to
comment
number
0225,
excerpt
3.

The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Commenter
Organization
Name:
Dean,
Frank
Comment
Number:
0411
Excerpt
Number:
3
Excerpt
Text:
Due
to
the
arbitrary
nature
of
Section
312.10
and
the
potential
for
it
to
legislate
me
and
many
others
out
of
this
business,
I
will
be
contacting
my
Attorney
to
discuss
the
possibility
of
litigation
if
this
part
of
the
regulation
goes
into
law
as
written.
As
there
are
approximately
2,000
members
of
the
EAA,
I
am
sure
that
there
will
be
a
number
of
us
tax
298
paying
small
business
owners
who
could
have
their
businesses
ruined
by
this
arbitrary
rule
and
would
be
interested
in
pursuing
litigation
and
talking
with
our
Congressmen.

Response:
Please
also
see
response
to
comment
number
0225,
excerpt
3.

The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.
We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
4
Excerpt
Text:
Today
there
are
many
small
consulting
firms
whose
business
will
be
hurt
by
EPA's
proposed
rule
because
they
cannot
meet
the
proposed
experience
and
education
requirements.
Such
firms,
these
small
little
firms,
are
the
backbone.
They
really
are
the
backbone
of
today's
business
in
conducting
Phase
I
and
Phase
II
work
for
residential
and
commercial
property.

More
consulting
firms
are
destined
to
be
hurt
financially
by
the
AAI
rule.
While
EPA
does
not
believe
that
the
definition
of
environmental
professional
will
go
beyond
the
AAI
rule,
it
is
destined
and,
as
so
many
times
before,
that
it
will
and
it
will
go
and
be
accepted
as
a
definition
of
an
environmental
professional
in
other
laws.

As
proposed,
the
AAI
rule
will
drive
up
the
market
for
consulting
engineers
and
geologists.
It
will
place
them
on
a
pedestal
of
being
a
specialist
who
can
and
will
command
higher
pay
for
their
work.
From
an
economic
standpoint
it
can
be
viewed
as­­
that
it
can
be
expected
that
all
salaries
on
a
brownfields
project
will
also
rise.
The
other
trades
will
ask
for
more
money
and
it
will
cost
more
to
complete
the
work.

Very
quickly
and
not
boring
you
with
all
the
details
now
because
we
will
provide
that
in
written
testimony
as
I
say,
the
total
estimated
number
of
environmental
professionals
nationwide
without
engineering
degrees
but
practicing
in
the
environmental
field
is
1,120,584.
The
total
estimated
Black
professionals
in
the
environmental
field
not
being
engineers
is
100,853.
We
go
on
through
also
the
Hispanic,
the
Asian,
the
female
and
the
total
minorities
who
are
non­
engineers
practicing
in
the
environmental
field
now
today
is
705,968.
This
will
have
an
impact
on
them.
A
total
impact
on
yearly
wages
which
averaged
on
the
way
low
side
of
being
$
39,505,223,188.00.
299
By
the
way,
these
total
environmental
professionals,
these
non­
engineers
practicing
in
the
environmental
field,
as
a
percentage
of
the
nation's
total
employed,
is
6.8
thousand.
If
we
are
to
take
and
begin
leaving
them
out
and
being
recognized
as
equals
in
this
field,
this
will
have
a
dramatic
effect
on
our
nation's
economy.
These
numbers,
by
the
way,
are
not
ones
that
I
made
up.
They
are
there
for
you
to
see
from
the
Bureau
of
Labor
Statistics.

Response:
Please
also
see
response
to
comment
number
0225,
excerpt
3.

The
definition
of
environmental
professional
in
the
final
rule
will
allow
for
many
practicing
professionals
to
meet
the
definition
or
qualify
as
an
environmental
professional
for
the
purpose
of
overseeing
all
appropriate
inquiries
investigation
without
incurring
extensive
costs
or
burdens.

We
point
out
that
only
the
individual
overseeing
the
conduct
of
an
all
appropriate
inquiries
investigation
must
qualify
as
an
environmental
professional,
as
defined
in
the
final
rule.
Other
individuals
may
contribute
to
the
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
the
individual
qualifying
as
an
environmental
professional.
300
2.1.8.4
Minimum
Requirements
for
Personnel
Working
under
the
Supervision
or
Responsible
Charge
of
an
EP
Commenter
Organization
Name:
Morris,
Michael
Comment
Number:
0114
Excerpt
Number:
2
Excerpt
Text:
As
an
advisor
to
our
local
community
college
that
created
an
environmental
engineering
program,
I
am
concerned
that
students
who
have
earned
an
associate
degree
will
no
longer
find
employment
doing
site
assessments.
These
students,
who
have
had
more
formal
training
in
conducting
site
assessments,
will
be
competing
with
lower
paid
clerical
level
people
who
work
for
engineers
or
geologists
that
only
sign
off
on
the
reports.
There
is
no
requirement
or
incentive
to
have
all
personnel
working
on
these
projects
to
have
some
training
and
experience
in
enviromental
assessments.

Response:
EPA
disagrees
with
the
commenter.
The
CERCLA
statute
provides
significant
incentives
for
conducting
high
quality
all
appropriate
inquiries
investigations.
To
maintain
protection
against
CERCLA
liability,
property
owners
must
comply
with
the
continuing
obligations
established
in
CERCLA.
These
obligations
include
taking
reasonable
steps,
stopping
on­
going
releases,
and
not
impeding
the
integrity
of
institutional
controls.
It
is
imperative
that
a
high
quality
all
appropriate
inquiries
investigation
be
conducted
prior
to
acquiring
a
property
so
that
the
property
owner
has
accurate
information
to
comply
with
the
required
continuing
obligations
and
maintain
protection
from
liability.
High
caliber
investigations
will
require
highly
qualified
personnel.

In
addition,
in
response
to
public
comments,
EPA
has
made
several
modifications
to
the
definition
of
environmental
professional
in
the
final
rule
that
will
allow
additional
individuals
to
qualify
as
environmental
professionals,
including
individuals
without
college
degrees
who
have
ten
years
of
full
time
relevant
experience.
Please
see
the
response
to
comment
number
0225,
excerpt
3.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
2
Excerpt
Text:
The
proposed
division
of
responsibilities
for
conducting
all
appropriate
inquiry.

While
the
definition
for
Environmental
Professional
(
EP)
is
arguably
more
restrictive
than
the
current
ASTM
definition
of
an
EP,
the
proposed
rule
requirement
that
the
EP
be
in
responsible
charge
is
less
restrictive
than
the
current
ASTM
practice
which
requires
the
EP
to
conduct
the
site
investigation
and
interviews.
I
am
concerned
that
even
with
the
strong
recommendation
in
the
preamble
that
the
EP
be
involved,
it
is
not
required
and
therefore
subject
to
abuse
in
the
marketplace.
From
my
experience
as
a
practicing
EP
the
301
only
two
questions
most
prospective
clients
ask
are:
How
soon
can
you
do
it?
How
much
does
it
cost?
This
places
market
pressure
on
the
EP
to
do
them
quickly
and
keep
cost
down.
One
obvious
way
of
controlling
cost
is
to
use
lower
cost
personnel
who
are
typically
less
experienced
than
the
EP.
I
would
like
to
see
some
requirement
for
the
person
conducting
the
site
visit
to
have
a
minimum
level
of
experience
and
training
even
if
it
doesn't
rise
to
the
level
of
qualifying
as
an
EP.

The
provision
for
using
non
EP's
to
collect
historic
information
and
perform
other
routine
duties
as
currently
allowed
in
the
ASTM
practice
is
acceptable.

Response:
Please
see
response
to
comment
number
0114,
excerpt
2.

In
today's
final
rule,
the
Agency
is
retaining
the
recommendation
that
an
individual
who
qualifies
as
an
environmental
professional
conduct,
or
closely
oversee
the
conduct
of,
the
required
on­
site
visual
inspection
of
the
property.
The
Agency
has
concluded
that
it
is
would
be
too
burdensome
to
require
a
person
meeting
the
definition
of
an
environmental
professional
to
conduct
the
on­
site
site
assessment
in
all
cases.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
8
Excerpt
Text:
The
Band
agrees
with
the
proposed
language
in
this
section
that
allows
a
person
who
is
not
an
Environmental
Professional
to
assist
in
the
conduct
of
all
appropriate
inquiries
so
long
as
the
conduct
is
under
the
supervision
of
a
qualified
Environmental
Professional.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision
of
the
final
rule.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
9
Excerpt
Text:
5)
FAA
agrees
that
it
is
a
good
idea
to
allow
people
who
do
not
meet
the
definition
of
an
EP
to
assist
with
and
take
part
in
the
conduct
of
AAI
under
the
supervision
of
an
EP.
Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision
of
the
final
rule.

Commenter
Organization
Name:
Foth
&
Van
Dyke
Comment
Number:
0339
Excerpt
Number:
2
Excerpt
Text:
302
In
addition
we
support
the
Proposal's
acknowledgement
that
persons
who­
do
not
fall,
within
the
definition
of
"
Environmental
Professional"
can
nonetheless
assist
in
the
conduct
of
the
"
all
appropriate
inquiries"
if
such
person
is
under
the
supervision
or
responsible
charge
of
a
person
meeting
the
definition.
We
also
take
this
opportunity
to
endorse
the
comments
submitted
by
the
National
Society
of
Professional
Engineers.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision
of
the
final
rule.

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
2
Excerpt
Text:
­­
Environmental
Professional
(
5)
­
please
explicitly
define
"
supervision
and
responsible
charge".

Response:
Although
the
Agency
is
not
formally
defining
the
clause
in
the
final
rule,
EPA
offers
that
the
meaning
of
"
supervision
or
responsible
charge"
is
that
the
environmental
professional
will
generally
be
overseeing
the
performance
of
all
appropriate
inquiries
activities
conducted
by
all
others
who
are
contributing
to
the
all
appropriate
inquiries
investigation.

Commenter
Organization
Name:
Froehlich,
R
A
Comment
Number:
0438
Excerpt
Number:
2
Excerpt
Text:
Persons
without
the
extensive
environmental
background
required
for
recognition
as
an
environmental
professional
should
also
be
allowed
to
work
on
environmental
site
assessments,
but
should
perform
their
work
under
the
direction
of
an
environmental
professional.
When
sufficient
experience
has
been
achieved,
they
should
be
tested
to
ensure
that
they
have
the
expertise
to
perform
environmental
site
assessments
under
their
own
direction.
Such
testing
should
be
required
for
all
environmental
professionals
under
the
final
regulation,
but
this
level
of
testing
is
not
included
as
a
requirement
in
the
proposed
regulations.
Testing
is
required
under
both
the
Asbestos
and
Lead
Based
Paint
Model
Accreditation
Plans
promulgated
by
EPA
for
both
inspectors,
supervisors
and
workers,
and
most
would
agree
that
the
concerns
associated
with
these
narrow
environmental
issues
is
much
less
extensive
than
the
concerns
associated
with
environmental
site
assessments.
Rather
than
promulgating
yet
another
Model
Accreditation
Plan,
however,
I
strongly
recommend
that
testing
for
environmental
professionals
be
performed
through
the
existing
ASTM
E1929
98
compliant
certification
programs
such
as
the
QEP
program.
Mere
years
of
experience
and
education
alone
are
insufficient
to
demonstrate
the
needed
expertise,
and
demonstrations
of
expertise
can
best
be
documented
through
an
impartial
examination
by
peers
active
in
the
field.
303
Response:
In
the
final
rule,
the
qualifications
for
meeting
the
definition
of
an
environmental
professional
are
based
upon
educational
and
experience
criteria.
EPA
believes
that
these
minimum
qualifications
as
well
as
the
requirement
that
an
environmental
professional
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"
of
the
rule
(
see
312.10)
are
sufficient
qualifications
for
qualifying
to
oversee
and
conduct
all
appropriate
inquiries
investigations
without
an
additional
testing
requirement.
304
2.1.8.5
The
Proposed
Rule
Does
Not
Provide
Information
on
the
Requirements
for
Becoming
Licensed
or
Certified
by
the
Federal
Government,
a
State,
Tribe,
or
U.
S.
Territory
to
Perform
Environmental
Inquiries
Commenter
Organization
Name:
Tucciarone,
L
W
Comment
Number:
0079
Excerpt
Number:
1
Excerpt
Text:
There
is
no
definition
of
how
you
become
licensed
or
certified
by
the
federal
government,
state,
etc.
to
perform
environmental
inquiries.

Response:
The
final
rule
provides
that
if
a
federal
government
department
or
agency
develops
a
licensing
or
certification
program,
the
rule
will
recognize
it.
Currently,
the
Bureau
of
Indian
Affairs
has
a
training
and
certification
program
for
environmental
professionals.

Because
requirements
of
individual
states
and
tribes
differ,
those
requirements
have
not
been
detailed
in
this
rule.
To
find
out
if
and
how
these
sovereigns
certify
environmental
professionals
you
should
contact
the
state
or
tribal
officials
directly.

Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
3
Excerpt
Text:
The
definition
of
an
environmental
professional
includes
the
usual
and
customary
categories
of
professional
engineers
and
geologists
and
adds
a
person
"
licensed...
to
perform
environmental
inquiries..."
No
such
licensing
program
exists.

Response:
The
federal
government,
a
state,
tribe,
or
U.
S.
territory
have
authority
to
certify
individuals
to
perform
environmental
inquiries
if
they
so
choose.
We
are
simply
recognizing
these
sovereigns.
The
Bureau
of
Indian
Affairs
has
a
training
and
certification
program
for
environmental
professionals.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
8
Excerpt
Text:
Appendix
C
Examples
of
State
Programs
with
Designated
Environmental
Professional
Credentialing
Requirements
The
following
illustrative
programs
have
been
summarized
based
on
information
305
obtained
[
and
in
many
cases
stated
verbatim]
from
the
state­
specific
websites
for
the
designated
programs.

DELAWARE
The
Delaware
Department
of
Natural
Resources
and
Environmental
Control
(
DNREC)
is
charged
with
identifying
and
remediating
hazardous
waste
sites.
To
determine
whether
a
firm
is
capable
of
performing
the
selected
remedy
on
behalf
of
the
potentially
responsible
party,
minimum
required
qualifications
have
been
established
in
the
form
of
"
Policy
on
Minimum
Qualification
Requirements
for
Consultants/
Contractors
Performing
Work
Under
the
Hazardous
Substance
Cleanup
Act
(
Effective
6/
17/
94,
Revised
12/
5/
01).
The
charge
requires
specific
environmental
investigation
or
remediation
be
executed
by
either
the
Department
or,
when
PRPs
are
identified
and
willing,
by
private
environmental
consulting/
contracting
firms.

Before
beginning
work,
a
consultant/
contractor
must
provide
the
names
and
qualifications
of
all
geologist
or
engineers
that
will
be
performing
work
in
each
related
service
category
(
e.
g.,
hydrogeological
investigations,
contaminant
fate
and
transport).
In
addition
to
a
series
of
other
representations,
the
consultant/
contractor
must
also
provide
information
to
substantiate
that
registered
professionals
will
perform
the
work
when
and
as
required
under
24
Del.
C.,
Chapters
28
(
for
professional
engineers)
and
36
(
for
professional
geologists).

However,
submittals
determined
to
be
complete
will
undergo
review
by
a
team
comprised
of
DNREC
Cleanup
Program
managers
and
project
officers,
which
either
approves
or
disapproves
the
consultant/
contractor.
Thus,
DNREC
has
established
the
procedure
and
criteria
(
not
publicly
available)
for
making
determinations
of
acceptability
under
this
program,
in
contrast
to
using
a
defined
set
of
criteria
established
by
independent
peer
review
and
available
for
public
review,
such
as
ASTM
E1929­
98.

MASSACHUSETTS
The
Massachusetts
Department
of
Environmental
Protection
has
implemented
the
21E
program
through
a
set
of
regulations
known
as
the
Massachusetts
Contingency
Plan
or
"
MCP."
The
MCP
lays
out
the
state's
rules
for
conducting
cleanups
of
contaminated
sites.
The
MCP
requires
people
who
are
responsible
for
cleanups
to
hire
a
Licensed
Site
Professional
to
manage
and/
or
oversee
the
required
assessment
and
cleanup
work.
Licensed
Site
Professionals
are
often
referred
to
as
"
LSPs."
LSPs
are
scientists
or
engineers
experienced
in
the
assessment
and
cleanup
of
oil,
gasoline,
and
hazardous
material
contamination.
They
are
licensed
by
an
independent
state
board
to
manage
cleanups
and
provide
formal,
written
opinions
that
cleanup
work
meets
the
requirements
of
the
MCP.

An
LSP
is
hired
by
a
site
owner
or
other
potentially
responsible
party
to
oversee
the
assessment
and
cleanup
activities
required
to
address
the
contamination.
The
LSP
collects
data
on
conditions
at
the
site,
interprets
this
data,
assesses
the
risks
posed
by
the
site
to
306
health,
safety,
public
welfare,
and
the
environment,
and
recommends
and
oversees
necessary
cleanup
activities.
In
providing
these
services,
the
LSP
is
responsible
for
making
sure
that
the
formal,
written
opinions
that
he
or
she
provides
about
response
actions
at
a
disposal
site,
and
the
activities
that
lead
up
to
these
opinions,
are
consistent
with
the
requirements
of
the
MCP.

At
key
stages
in
the
cleanup
process,
these
formal,
written
opinions
describing
the
work
that
has
been
completed
must
be
sent
to
DEP.
When
a
cleanup
has
been
completed,
the
LSP
provides
a
final
opinion
stating
that
the
response
actions
have
achieved
an
outcome
that
complies
with
the
MCP
and
protects
health,
safety,
public
welfare,
and
the
environment.
Only
an
LSP
can
sign
and
stamp
these
formal
opinions.

LSPs
are
licensed
by
the
Board
of
Registration
of
Hazardous
Waste
Site
Cleanup
Professionals,
common
Response:
EPA
thanks
the
commenter
for
the
provided
information.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
7
Excerpt
Text:
The
Mille
Lacs
Band
recommends
that
tribal
licensing
and
registration
requirements
be
incorporated
into
this
section,
including
the
applicability
of
tribal
licensing
regulations
and
laws
before
any
activities
are
undertaken.
An
aspect
of
tribal
licensing
and
registration
would
be
the
likely
addition
of
a
cultural
component
to
the
process.
Through
cultural
training
for
the
individual
who
is
not
familiar
with
a
tribe,
that
individual
would
gain
an
awareness
of
tribal
values
(
including
practices
and
customs)
that
would
make
it
easier
to
conduct
environmental
work
within
a
tribal
community.
In
this
manner,
environmental
needs
would
be
addressed
and
cultural
issues
would
be
respected
in
the
tribal
community.

Response:
The
final
rule
allows
for
and
recognizes
tribal
licensing
and
certification
programs
for
environmental
professionals.
The
final
rule
also
recognizes
the
Bureau
of
Indian
Affairs
licensing
and
certification
programs
for
environmental
professionals.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0371
Excerpt
Number:
4
Excerpt
Text:
The
rule
states
in
312.10(
b)(
2)(
I)
that
a
person
licensed
by
the
federal
government,
state
or
tribal
to
perform
environmental
inquires...
The
EPA
should
provide
a
list
of
acceptable
federal,
state
or
tribal
licenses
that
meet
this
definition
307
Response:
EPA
does
not
have
a
list
of
such
programs
and
it
would
be
difficult
to
maintain
and
update
such
a
list
for
all
states
and
the
entire
federal
government.
We
simply
note
that
we
will
honor
individuals
certified
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory.
Certifications
must
be
for
the
purpose
of
designating
individuals
qualified
to
perform
environmental
inquiries
as
defined
in
'
312.21.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
3
Excerpt
Text:
The
rule
states
in
312.10(
b)(
2)(
I)
that
a
person
licensed
by
the
federal
government,
state
or
tribal
to
perform
environmental
inquires 
The
EPA
should
provide
a
list
of
acceptable
federal,
state
or
tribal
licenses
that
meet
this
definition.

Response:
EPA
does
not
have
a
list
of
such
programs
and
it
would
be
difficult
to
maintain
and
update
such
a
list
for
all
states
and
the
entire
federal
government.
We
simply
note
that
we
will
honor
individuals
certified
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory.
Certifications
must
be
for
the
purpose
of
designating
individuals
qualified
to
perform
environmental
inquiries
as
defined
in
'
312.21.
308
2.2
An
EP
Should
Remain
Current
in
His/
Her
Field
through
Participation
in
Continuing
Education
or
Other
Relevant
Activities
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
4
Excerpt
Text:
Environmental
professionals
"
should
remain
current
in
his
or
her
field
through
participation
in
continuing
education
or
other
activities
and
should
be
able
to
demonstrate
such
efforts."
What
happens
if
the
EP
doesn't
remain
current
or
can't
demonstrate
such
efforts?
Are
the
reports
he
makes
unreliable?
Is
this
grounds
to
deny
innocent
landowner
protection
to
the
client
who
hired
him.

Response:
The
final
rule
retains
the
requirement
that
an
environmental
professional
"
should
remain
current
in
his
or
her
field
through
participation
in
continuing
education
or
other
activities."
However,
the
final
rule
does
not
retain
the
requirement
that
environmental
professionals
"
should
be
able
to
demonstrate
such
efforts."
The
Agency
has
determined
that
the
demonstration
requirement
is
difficult
to
define
and
may
place
an
undue
burden
on
environmental
professionals,
particularly
given
that
many
training
programs
and
conferences
may
not
have
an
associated
certificate
or
license.
The
marketplace
and
ultimately
the
courts
can
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
"
Other
activities"
involves
any
activity
that
serves
the
purpose
of
keeping
practitioners
up
to
date
on
the
latest
developments
and
activities
in
the
industry.

Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
3
Excerpt
Text:
I
also
support
the
AAI
rule's
requirements
that
the
EP
remain
current
in
his
field
through
continuing
education
or
training,
and
be
able
to
demonstrate
such
effort.
Relying
on
professionals
who
have
a
high
level
of
education,
training,
experience,
and
integrity
is
the
most
effective
way
to
deal
with
the
environmental
risks
that
must
be
evaluated
for
commercial
real
estate
transactions.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
Kentuckiana
Chapter
ACHMM
Comment
Number:
0405
Excerpt
Number:
4
309
Excerpt
Text:
Moreover,
because
the
proposed
rule
requires
"
all
environmental
professionals
to
remain
current
in
the
field
of
all
appropriate
inquiries,
or
environmental
site
assessments,"
69
Fed.
Reg.
52553,
amending
the
proposed
definition
of
"
environmental
professional"
to
include
CHMMs
will
help
EPA
in
meeting
its
commitment
to
high
standards
since
CHMMs
must
earn
Certification
Maintenance
Points
("
CMPs")
annually
to
maintain
their
certifications.

Response:
Please
see
responses
to
comment
number
0173,
excerpt
2.
310
2.2.1
The
Agency
Should
Clarify
What
Type
of
Training
or
Continuing
Education
Would
Satisfy
This
Requirement
Commenter
Organization
Name:
Pike,
Kenneth
Comment
Number:
0117
Excerpt
Number:
1
Excerpt
Text:
­­
Comments:
"
Remaining
current"
could
be
interpreted
as
seeking
continuing
education
or
professional
development
courses
in
the
field
of
AAI
or
only
interpreted
as
continuing
to
work
as
an
environmental
professional.
More
than
20
states
require
that
home
inspectors
be
licensed
to
include
specific
training
and
passing
a
written
test.
Purchasers
and
lenders
of
commercial
property
have
far
greater
financial
exposure
than
residential
purchasers
yet
no
standardized
training
or
licensure
requirements
exists
relative
to
the
performance
of
AAI/
environmental
site
assessment
by
the
Environmental
Professional.
Colleges
and
universities
do
not
have
environmental
site
assessment
in
their
curricula,
consequently
the
only
training
is
on­
the­
job
and
that
training
is
far
from
standardized.

­­
Recommendation:
While
accumulated
work
experience
is
valuable,
"
remaining
current"
should
include
continuing
education
or
professional
development
courses
specific
to
AAI/
environmental
site
assessment.
Such
courses
would
create
open
dialogue,
sharing
of
experiences
and
ideas
and
encourage
a
trend
toward
consistency
in
the
industry.
This
industry
has
historically
been
inconsistent
in
all
aspects
of
environmental
site
assessment
(
e.
g.,
experience,
professional
judgement,
QA/
QC)
and
the
proposed
rule
can
solve
these
problems
by
defining
"
remaining
current"
in
terms
of
continuing
education
or
professional
development
coursework
just
as
is
required
by
many
other
professions.

Response:
Environmental
professionals
may
"
remain
current"
in
their
field
of
expertise
by
taking
training
and
educational
courses,
attaining
conferences
and
workshops
or
participating
in
any
other
activities
that
serve
the
purpose
of
keeping
practitioners
up
to
date
on
the
latest
developments
and
activities
in
the
industry.

Commenter
Organization
Name:
Leech
Lake
Ojibwe
Comment
Number:
0125
Excerpt
Number:
3
Excerpt
Text:
Moreover,
there
is
no
mandate
that
an
EP
remain
current
in
his
or
her
field;
rather,
the
rule
imposes
a
much
less
rigorous
standard
by
stating
only
that
an
EP
"
should"
engage
in
such
activities.
To
clarify
this
subsection,
EPA
should:
(
1)
impose
a
limitation
on
the
time
period
during
which
such
experience
must
have
been
gained;
and
(
2)
mandate
that
EPs
remain
current
in
their
field.
These
changes
will
ensure
that
EPs
are
competent,
upto
date
in
their
education
and
training,
and
capable
of
effectively
conducting
AAIs.
311
Response:
The
final
rule
retains
the
requirement
that
an
environmental
professional
"
should
remain
current
in
his
or
her
field
through
participation
in
continuing
education
or
other
activities."
However,
the
final
rule
does
not
retain
the
requirement
that
environmental
professionals
"
should
be
able
to
demonstrate
such
efforts."
The
Agency
has
determined
that
the
demonstration
requirement
is
difficult
to
define
and
may
place
an
undue
burden
on
environmental
professionals,
particularly
given
that
many
training
programs
and
conferences
may
not
have
an
associated
certificate
or
license.
The
marketplace
and
ultimately
the
courts
can
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
3
Excerpt
Text:
3
Steve
Myers
EP
Definition312.10(
c)(
3)
What
will
count
as
continuing
education
or
'
other
activities'?
How
often
or
how
many
will
be
required?
What
type
of
documentation
will
be
required
to
'
demonstrate
such
efforts'?

Response:
Please
see
response
to
comment
number
0095,
excerpt
4.
The
Agency
expects
practitioners
to
be
abreast
of
the
latest
developments
in
the
industry.
To
this
end,
practitioners
should
obtain
continuing
education.
While
the
final
rule
does
not
set
forth
any
specific
hour
requirements,
individuals
hiring
firms
or
individuals
to
perform
assessments
may
wish
to
inquire
as
to
how
the
firm
or
individual
is
acquiring
up
to
date
knowledge
about
assessments.
Further,
in
litigation,
a
court
will
ultimately
decide
if
the
environmental
professional
has
fulfilled
this
requirement.

Commenter
Organization
Name:
AIPG
Comment
Number:
0253
Excerpt
Number:
3
Excerpt
Text:
AIPG
also
strongly
recommends
that
an
annual
refresher
course
be
required
for
the
Environmental
Professional.
Other
programs
require
annual
refresher
courses
to
remain
current
in
their
fields
of
practice
such
as
the
8­
hour
OSHA
classes
and
asbestos
training.
The
proposed
Rule
only
recommends
continuing
education
and
most
state
P.
G.
licenses
don't
require
any.
AIPG
has
instituted
a
program
for
continuing
professional
development
for
practitioners.

An
annual
refresher
course
would
give
other
individuals
who
are
grandfathered,
but
who
are
not
CPGs
or
registered,
an
opportunity
to
learn
some
basic
hydrogeology
and
geologic
concepts
to
which
they
may
not
have
been
exposed
previously.
312
Response:
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).

Commenter
Organization
Name:
Wallace,
Ronald
Comment
Number:
0254
Excerpt
Number:
2
Excerpt
Text:
I
also
strongly
recommend
that
an
annual
refresher
course
be
required
for
the
Environmental
Professional.
Other
programs
require
annual
refresher
courses
to
remain
current
in
their
fields
of
practice
such
as
the
8­
hour
OSHA
classes
and
asbestos
training.
The
proposed
Rule
only
suggests
continuing
education
and
most
state
P.
G.
licenses
don't
require
any.
AIPG
is
in
the
process
of
finalizing
the
requirement
for
continuing
professional
development
hours
for
new
CPGs
and
is
in
a
position
to
help
develop
annual
testing.
The
annual
refresher
course
would
also
give
those
individuals
who
are
"
grandfathered"
an
opportunity
to
learn
some
basic
hydrogeology
and
geologic
concepts
to
which
they
may
not
have
been
exposed
previously.
This
requirement
will
"
raise
the
bar".
Geologists
who
meet
the
CPG
requirements
will
meet,
and
generally
exceed,
state
P.
G.
requirements
for
education,
experience,
and
continuing
education.

Under
these
proposals
the
public
will
have
a
means
to
check
on
an
individual
to
verify
that
they
are
a
CPG
and
are
current
on
educational
requirements.
Also
included
is
a
Code
of
Ethics
which
CPG's
are
required
to
adhere
to
as
well
as
a
procedure
for
filing
complaints
against
CPG's.
For
non­
CPG's
who
take
the
annual
refresher
course
through
AIPG,
confirmation
of
their
participation
would
also
be
available
to
the
public.

Response:
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
6
Excerpt
Text:
The
Band
agrees
with
the
proposed
requirement
that
an
Environmental
Professional
should
remain
current
in
his
or
her
field
through
"
continuing
education
or
other
activities."
However,
it
is
unclear
what
"
other
activities"
refers
to
and
what
constitutes
the
ability
to
"
demonstrate
such
efforts."
Whether
this
means
regularly
updated
certifications
is
unclear,
but
the
Band
supports
an
Environmental
Professional
staying
current
with
the
latest
technologies,
information,
and
practices
in
the
field.
In
the
situation
where
a
tribe
does
license
or
certify
an
Environmental
Professional,
the
Band
recommends
that
the
same
and
other
similarly
situated
tribes
be
authorized
to
conduct
continuing
education
seminars
or
classes
that
would
"
demonstrate
such
efforts."

Response:
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).
313
Tribal
continuing
education
seminars
or
classes
would
most
likely
satisfy
the
requirement.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
7
Excerpt
Text:
3)
What
will
count
as
continuing
education
or
"
other
activities"
as
required
by
the
third
provision
of
the
proposed
EP
definition?
How
often
must
an
EP
participate
in
this
continuing
education/
other
activities?
What
type(
s)
of
documentation
will
EPA
require
to
"
demonstrate
such
efforts"?

Response:
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
4
Excerpt
Text:
Proposed
Section
312.10(
b)(
3):
Trainings
and
continuing
education
sessions
are
readily
available
for
topics
such
as
groundwater
hydrology,
environmental
sampling,
contaminant
transport,
and
other
related
courses.
However,
there
are
not
many
trainings
or
continuing
education
sessions
for
environmental
professionals
to
remain
current
in
the
field
of
AAI
or
environmental
site
assessments.
Environmental
professionals
can
stay
current
in
their
field
but
that
may
not
mean
they
are
specifically
taking
AAI
or
environmental
site
assessment
courses.
DEQ
believes
that
EPA
should
clarify
this
section.

Response:
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).
The
intent
of
the
regulation
is
that
environmental
professionals
remain
current
in
the
general
field
of
environmental
science,
engineering
and
site
assessments
and
not
merely
current
on
the
specific
all
appropriate
inquiries
requirements.

Commenter
Organization
Name:
Testa,
Steve
Comment
Number:
PM­
0359­
0002
Excerpt
Number:
2
Other
Sections:
MODIFIED
­
2.1.8
­
Comments
on
the
proposed
minimum
requirements
Excerpt
Text:
The
second
recommendation
reflects
on
annual
refresher
courses
or
continuing
education.
AIPG
also
strongly
recommends
that
an
annual
refresher
course
be
required
for
the
Environmental
Professional.
Other
programs
require
annual
refresher
courses
to
remain
314
current
in
their
fields
of
practice,
such
as
the
eight­
hour
OSHA
classes
and
asbestos
training.
The
proposed
rule
only
recommends
continuing
education,
and
most
state
Professional
Geologist
licenses
don't
require
any.
AIPG
has
instituted
a
program
for
continuing
professional
development
for
practitioners.

Last,
an
annual
refresher
course
would
give
other
individuals
who
are
grandfathered,
but
who
are
not
CPGs
or
registered,
an
opportunity
to
learn
more
about
basic
hydrogeology
and
geologic
concepts
to
which
they
may
not
have
been
exposed
previously.
Adding
also
to
the
importance
of
this
issue
is
the
proliferation
of
automated,
Internet­
based
platforms
for
creating
data
summaries
and
maps
of
the
subject
area.
These
give
the
erroneous
impression
of
thoroughness
to
the
point
of
even
showing
groundwater
flow
direction
and
the
relative
elevation
of
surrounding
sites
that
have
the
potential
to
impact
the
subject
site.
These
presentations
can
be
misleading
and,
if
used
by
an
unqualified
Environmental
Professional,
may
lead
to
serious
oversights
with
significant
consequences.
The
judgement
of
a
qualified
geologist,
taking
advantage
of
all
available
geologic
and
hydrogeologic
information
sources,
is
necessary
for
this
purpose.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.
Please
see
response
to
comment
numbers
0095
(
excerpt
4)
and
0242
(
excerpt
3).
315
2.3
Suggestions
for
Additional
Elements
or
Revisions
of
the
Proposed
Definition
Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Excerpt
Number:
1
Excerpt
Text:
We
have
reviewed
the
proposed
"
All
Appropriate
Inquiries"
standards,
and
find
no
significant
objections
to
them.
All
environmental
assessments
that
we
have
completed
in
the
past
12
years
would
generally
meet
or
exceed
the
proposed
specifications.
We
do
offer
the
following
comments
and
suggestions
regarding
some
of
the
details
of
the
proposed
regulation.

Regarding:

§
312.10
­

We
believe
the
qualifications
for
an
"
Environmental
Professional"
should
include:

(
A)
"
Hold
a
current
registration
or
certification
accredited
by
the
Council
of
Engineering
and
Scientific
Specialty
Boards
that
is
recognized
by
a
federal,
state,
tribal,
or
U.
S.
territory
(
or
the
Commonwealth
of
Puerto
Rico)
agency
with
jurisdiction
over
the
location
of
the
subject
property
in
lieu
of
a
license
to
conduct
environmental
inquiries
as
defined
in
§
312.21,
and
have
the
equivalent
of
three
(
3)
years
of
full­
time
relevant
experience"

REASON:
Many
agencies
have
elected
to
recognize
existing
credentials
rather
that
develop
their
own
licensing
programs.

(
B)
"
Have
an
advanced
(
Masters
or
higher)
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
earth
science,
physical
science,
chemical
science,
or
biological/
health
science
and
the
equivalent
of
three
(
3)
years
of
full­
time
relevant
experience"

REASON:
Environmental
assessment
and
remediation
has
become
an
interdisciplinary
endeavor,
and
persons
with
training
in
other
sciences
besides
the
engineering,
earth,
and
environmental
sciences
are
qualified
to
conduct
environmental
inquiries.
Furthermore,
a
person
with
an
advanced
degree
in
a
relevant
science
generally
has
as
much
training
and
overall
qualification
as
a
person
holding
a
professional
license
or
registration.

(
C)
"
Have
Baccalaureate
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
earth
science,
physical
science,
chemical
science,
or
biological/
health
science
and
the
equivalent
of
five
(
5)
years
of
fulltime
relevant
experience"

REASON:
Environmental
assessment
and
remediation
has
become
an
interdisciplinary
316
endeavor,
and
persons
with
training
in
other
sciences
besides
the
engineering,
earth,
and
environmental
sciences
are
qualified
to
conduct
environmental
inquiries.

Response:
EPA
appreciates
the
commenter's
suggestions.
However,
the
commenter's
suggested
revisions
to
the
definition
of
environmental
professional
are
more
stringent
than
the
Agency
has
determined
are
necessary
for
the
purposes
of
qualifying
to
oversee
an
all
appropriate
inquiries
investigation.
Particularly
given
that
the
scope
of
the
all
appropriate
inquiries
investigation
is
to
investigate
prior
uses
and
ownerships
of
a
property
to
determine
the
potential
for
environmental
contamination.
The
final
rule
does
not
require
sampling
and
analysis.

Please
see
also
responses
to
comments
0072
(
excerpt
2)
and
0099
(
excerpt
1).

Commenter
Organization
Name:
SCBRG
Comment
Number:
0321
Excerpt
Number:
1
Excerpt
Text:
The
South
Carolina
Board
of
Registration
for
Geologists
(
SCBRG)
wishes
to
comment
on
the
above
referenced
proposed
rule.
Specifically,
our
comments
concern
the
definition
of
environmental
professional.
In
the
proposed
definition,
the
environmental
professional
is
defined
by
a
multi­
tiered
structure
that
first
recognizes
Professional
Geologists
(
PG)
and
Professional
Engineers
(
PE)
and
then
proceeds
downward
to
relevant
experience
and
ends
with
a
grandfather
provision.
The
definition
does
have
a
disclaimer
that
states,
"
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".
The
SCBRG
believes
this
definition
is
not
definitive
enough,
provides
opportunities
for
unqualified
personnel
to
circumvent
state
laws,
and
could
allow
unqualified
persons
to
conduct
the
practice
of
geology
in
South
Carolina
and
possibly
in
other
states
that
have
professional
registration
requirements
for
geologists.

To
strengthen
the
definition
and
to
be
protective
of
the
health
and
safety
of
our
citizens,
SCBRG
request
that
EPA
redraft
the
definition
for
environmental
professional
to
require
such
a
person
to
be
a
registered
professional
in
states
that
have
professional
registration
laws.
If
the
person
will
be
conducting
the
practice
of
geology
(
which
the
completion
of
All
Appropriate
Inquiry
for
a
Phase
I
ESA
would
require),
then
for
states
that
require
registration
of
geologists
the
environmental
professional
must
be
a
registered
professional
geologist
in
that
state.
The
same
concept
would
apply
for
persons
conducting
engineering
practices
or
other
appropriate
scientific
investigations
where
licensing
is
appropriate.
If
the
definition
must
have
multiple
tiers,
then
the
first
tier
of
the
definition
should
require
professional
registration
in
states
with
state­
regulated
registration
laws.
The
second
tier
would
only
apply
for
states
without
professional
registration
laws.

In
the
current
proposed
definition,
EPA
only
acknowledges
professional
registration
317
without
ensuring
a
person
is
truly
qualified
through
professional
registration.
It
places
a
burden
on
states
with
professional
registration
laws
to
seek
out
and
take
legal
action
against
unqualified
environmental
professionals
that
are
not
registered
professionals.
However,
with
EPA's
unequivocal
recognition
and
requirement
for
professional
registration
in
the
states
that
have
registration
laws,
the
environmental
professional
could
be
considered
qualified
in
his
field.
Professional
registration's
expressed
purpose
is
to
ensure
a
person
is
competent
in
his
field
through
demonstrated
academic
achievements,
relevant
work
experiences,
and
nationally
based
examination
scores.
Consequently,
the
most
efficient
method
to
ensure
that
environmental
professionals
are
competent
to
complete
the
All
Appropriate
Inquiry
process
is
through
requiring
professional
registration
in
states
with
registration
programs.
This
would
prevent
the
creation
of
unnecessary
loopholes
for
unqualified
persons.

Response:
EPA
disagrees
with
the
commenter.
The
conduct
of
all
appropriate
inquiries
may
not
necessarily
require
a
person
to
practice
geology.
However,
if
a
person
should
have
to
practice
geology
during
the
conduct
of
an
all
appropriate
inquiries
investigation,
the
final
rule
provides
in
§
312.10
(
b)(
4)
the
following
provision:
"
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)."
This
portion
of
the
final
rule
seems
to
adequately
address
your
concern.

Commenter
Organization
Name:
Jermakian,
David
Comment
Number:
0328
Excerpt
Number:
1
Excerpt
Text:
I
suggest
the
following
changes
to
the
definition
of
Environmental
Professional.
Changes
are
underlined
­
Environmental
Professional
means:

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

(
b)
Such
a
person
must:

(
1)
hold
a
current
Professional
Engineer's
or
Professional
Geologist's
license
or
registration
from
a
state,
tribe,
or
U.
S.
territory
(
or
the
Commonwealth
of
Puerto
Rico)
or
be
individuals
that
are
certified
by
a
professional
organization
that
is
third
party
318
accredited
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
(
2)
be
licensed
or
certified
by
the
federal
government,
a
state,
tribe,
or
U.
S.
territory
(
or
the
Commonwealth
of
Puerto
Rico)
to
perform
environmental
inquiries
as
defined
in
§
312.21
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
(
3)
have
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
relevant
discipline
of
engineering,
environmental
science,
or
earth
science
and
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience;
or
(
4)
as
of
the
date
of
the
promulgation
of
this
rule,
have
a
the
equivalent
of
fifteen
(
15)
years
of
fulltime
relevant
experience.

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

(
d)
The
definition
of
environmental
professional
provided
above
does
not
preempt
state
professional
licensing
or
registration
requirements
such
as
those
for
a
professional
geologist,
engineer,
or
site
remediation
professional.
Before
commencing
work,
a
person
should
determine
the
applicability
of
state
professional
licensing
or
registration
laws
to
the
activities
to
be
undertaken
as
part
of
the
inquiry
identified
in
§
312.21(
b).

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

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0142
(
excerpt
1).

Commenter
Organization
Name:
ID
Board
of
Reg.
for
Prof.
Geologists
Comment
Number:
0421
Excerpt
Number:
1
Excerpt
Text:
The
Board
strongly
concurs
in
Section
312.10(
b)(
4)
of
the
proposed
rule,
which
states:

"
The
definition
of
environmental
professional
provided
above
does
not
preempt
state
professional
licensing
or
regulation
requirements
such
as
those
for
a
professional
geologists,
engineer,
or
site
remediation
professional.
Before
commencing
work
(
emphasis
added),
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
Section
312.21(
b)."

The
State
of
Idaho
requires
licensure
for
the
professional
practice
of
geology.
It
is
319
inappropriate,
and
possibly
illegal,
for
the
proposed
"
environmental
professionals"
to
engage
in
the
practice
of
geology
in
the
environmental
characterization
and
remediation
of
Brownfields
sites.

Any
and
all
proposed
"
grandfathering"
clauses
as
stated
in
the
proposed
rulemaking
change
should
be
removed.
Any
references
to
unlicensed
individuals
being
qualified
by
the
federal
Government
to
perform
this
type
of
work
should
also
be
stricken.
Professional
licensure
is
the
only
mechanism
allowed
by
law
in
Idaho
for
this
type
of
activity.

Response:
Please
see
responses
to
comment
numbers
0321
(
excerpt
1),
0072
(
excerpt
2)
and
0142
(
excerpt
1).

Commenter
Organization
Name:
Vanderweide,
Joe
Comment
Number:
0455
Excerpt
Number:
1
Excerpt
Text:
The
Kansas
Board
strongly
concurs
in
Section
312.1O(
b)(
4)
of
the
proposed
rule
which
states:

"
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
(
emphasis
added),
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
Section
3
12.21(
b)."

The
State
of
Kansas
requires
licensure
for
the
professional
practice
of
engineering
and
geology.
It
is
inappropriate,
and
possibly
illegal
for
the
proposed
"
environmental
professionals"
to
engage
in
the
practice
of
engineering
or
geology
in
the
environmental
characterization
and
remediation
of
Brownfelds
sites,
as
well
as
any
other
investigations,
studies
and/
or
reports
that
require
these
professional
activities.

Any
and
all
proposed
"
grandfathering"
clauses
that
allow
conducting
engineering
or
geologic
activities
within
the
State
of
Kansas,
without
a
Kansas
State
License,
as
stated
in
the
proposed
rulemaking
change
should
be
removed.
Any
references
to
unlicensed
individuals
being
qualified
by
the
federal
Government
to
perform
this
type
of
work
should
also
be
stricken.
Professional
licensure
is
the
only
mechanism
allowed
by
law
in
Kansas
for
these
professional
activities.

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0142
(
excerpt
1).
320
2.3.1
Professional
Engineer
Certification
and
Professional
Geologist
Certification
Do
Not
Ensure
High
Level
of
Professional
Ability
Commenter
Organization
Name:
None
Comment
Number:
0040
Excerpt
Number:
1
Excerpt
Text:
There
are
thousands
of
qualified
environmental
professionals
who
do
not
carry
the
P.
E.
or
P.
G.
designation.
Conversely
the
majority
of
P.
E.
s
and
P.
G.
s
are
not
qualified
and
experienced
to
perform
environmental
assessments.
This
distinction
should
be
analyzed
and
reevaluated
to
include
the
largest
sector
of
real
environmental
professionals.

Response:
Please
see
response
to
comment
number
0336,
excerpt
1.

Note
that
experience
requirements
accompany
each
of
the
qualification
paths
within
the
definition
of
environmental
professional.
The
Agency
agrees
that
simply
being
educated
in
a
certain
field
is
not
adequate
and
that
there
must
be
"
full­
time"
and
"
relevant"
work
experience
in
any
circumstance
to
ensure
that
an
individual
qualifies
as
an
environmental
professional.

Commenter
Organization
Name:
Hodgson,
R
S
Comment
Number:
0075
Excerpt
Number:
1
Excerpt
Text:
it
needs
to
be
emphasized
that
the
Registered
Professional
Engineer
and/
or
Registered
Professional
Geologist
must
have
both
training
and
experience
to
make
the
required
judgments
or
they
would
be
practicing
outside
their
area
of
expertise.
To
assure
this,
a
peer
review
should
be
included
in
the
process.
The
process
should
also
encourage
any
questions
over
training
and
experience
to
be
brought
before
the
appropriate
state
registration
board.

Response:
The
definition
of
environmental
professional
in
the
final
rule
requires
that
individuals
who
are
licensed
Professional
Engineers
or
Professional
Geologists
must
also
have
three
years
of
full­
time
relevant
experience.
State
licensing
and
registration
boards
may
always
be
consulted
regarding
the
qualifications
of
individuals
licensed
or
registered
by
the
state.
There
is
no
reason
to
include
such
a
requirement
in
the
final
rule.
The
final
rule
requires
that
the
written
report
of
findings
be
signed
by
an
individual
who
meets
the
definition
of
environmental
professional
and
that
the
signature
block
include
a
statement
indicating
that
the
person
signing
the
report
meets
the
qualifications
within
the
definition
of
environmental
professional.
EPA
has
determined
that
there
is
no
need
for
a
individual's
qualifications
to
be
peer
reviewed.
321
Please
also
see
response
to
comment
number
0336,
excerpt
1.

Commenter
Organization
Name:
Martinez,
Hugo
Comment
Number:
0077
Excerpt
Number:
1
Excerpt
Text:
In
your
section
entitled
:
"
2.
What
Are
the
Minimum
Qualifications
for
Meeting
the
Definition
of
an
Environmental
Professional?"
you
mention
Professional
Engineers.
Professional
Engineers
are
licensed
for
specific
practice
areas.
One
area
is
Environmental
Engineering.
Without
specifying
which
area
of
expertise
is
considered
pertinent
by
EPA,
it
is
unclear
whether
engineers
from
other
areas
of
expertise
qualify
as
"
meeting
the
definition
of
an
environmental
professional".
I
submit
that
Licensed
Environmental
Professional
Engineers
are
qualified
Environmental
Professionals.
The
Licensing
Boards
typically
disallows
the
exercise
of
engineering
responsibilities
outside
the
licensed
area,
as
defined
at
the
time
of
taking
the
licensing
exam.

Response:
Although
the
final
rule
recognizes
tribal
and
state­
licensed
P.
E.
and
P.
G.
s
and
other
such
government
licensed
environmental
professionals
with
three
years
of
full­
time
relevant
experience
to
be
environmental
professionals,
the
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

In
addition
to
the
qualifications
for
environmental
professionals
mentioned
above,
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
(
e.
g.,
a
state
Licensed
Site
Professional
program),
provided
that
these
individuals
also
have
three
years
of
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
possess
sufficient
specific
education,
training,
and
experience
necessary
to
exercise
professional
judgment
to
322
develop
opinions
and
conclusions
regarding
the
presence
of
releases
or
threatened
releases...
to
the
surface
or
subsurface
of
a
property,
sufficient
to
meet
the
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

Based
upon
the
input
received
from
the
public
commenters,
EPA
determined
that
the
definition
of
environmental
professional
included
in
today's
final
rule
establishes
a
balance
between
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
and
the
need
to
ensure
that
experienced
and
highly
competent
individuals
currently
conducting
all
appropriate
inquiries
are
not
displaced.

Commenter
Organization
Name:
Lind,
Peter
Comment
Number:
0107
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.2
­
Revise
the
license
requirement
to
include
licensed
or
certified
professionals
other
than
professional
engineers
and
professional
geologists
Excerpt
Text:
The
present
definition
for
"
environmental
professional"
in
the
PROPOSED
REGULATION
is
too
restrictive
by
omitting
the
words,
"
licensed
architects"
and
"
architectural
accredited
institutions".
Similar
to
licensed
engineers
and
licensed
geologists,
licensed
architects
are
design
professionals.

To
simply
allow
the
grandfathering
of,
for
example;
a
licensed
"
electrical
engineer"
to
conduct
surface
and
subsurface
investigations
because
the
"
engineer"
is
licensed
and
has
had
three
years
of
AAI
relevant
experience
is
NOT
fair
to
a
licensed
architect
having
similar
AAI
relevant
environmental
experience.
Nor
is
it
appropriate
for
the
client
and
general
public
to
feel
safe
that
a
licensed
geologist
is
absolutely
qualified
to
sign­
off
on
an
environmental
site
assessment
of
a
"
facility"
or
"
building
structure"
on
the
subject
site.
Think
about
it,
a
licensed
architect
having
specialized
environmental
training
may
be
better
qualified
in
ESA
matters
concerning
facility,
function
and
their
processes
that
may,
or
may
not,
have
contaminated
site
surface
or
subsurface,
yet
is
not
expressly
"
qualified"
under
any
of
the
four
proposed
qualifications
by
the
exclusion
of
these
terms,
including
the
grandfather
provisions.

Response:
Please
see
responses
to
comments
0072
(
excerpt
2)
and
0099
(
excerpt
1).

Note
that
architects
can
become
environmental
professionals
as
defined
in
this
rule
either
by
possessing
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
a
discipline
of
engineering
or
science
and
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience;
or
have
the
equivalent
of
ten
(
10)
years
of
full­
time
relevant
experience.
323
Commenter
Organization
Name:
Froehlich,
R.
A.
Comment
Number:
0119
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.3
­
Adopt
the
definition
of
EP
as
specified
in
the
ASTM
standard
Excerpt
Text:
If
the
objective
of
this
change
in
rules
is
to
ensure
that
all
appropriate
inquiry
is
performed
by
a
qualified
environmental
professional,
the
qualifications
should
mirror
the
qualifications
of
environmental
professionals
as
included
in
the
current
ASTM
Standard
on
credentials
for
environmental
professionals.
Merely
licensing
as
a
P.
E.
or
P.
G.
does
not
ensure
the
highest
levels
of
professionalism
in
environmental
professionals.
Independent
credentialling
by
an
organization
that
meets
the
requirements
of
the
ASTM
standard
which
is
supported
by
the
environmental
professional
associations
is
the
best
way
to
ensure
that
all
appropriate
inquiry
is
made
by
well­
qualified
environmental
professionals.
I
stongly
recommend
that
environmental
professionals
should
be
certified
as
a
Qualified
Environmental
Professional
by
the
Institute
for
Professional
Environmental
Practice.
The
IPEP
certification
program,
one
of
the
ASTM
compliant
certification
programs,
since
it
is
supported
by
the
Air
&
Waste
Management
Association,
the
Water
Environment
Federation,
the
National
Association
of
Environmental
Managers,
the
American
Industrial
Hygiene
Association,
the
Solid
Waste
Association
of
North
America,
the
American
Association
of
Environmental
Engineers,
and
several
other
environmental
professional
organizations.
All
of
these
professional
organizations
existed
well
before
the
certification
issues
arose,
and
each
of
the
sponsoring
organizations
supports
the
QEP
certification
as
the
only
environmental
professional
certification.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.

Given
the
performance­
based
qualifications
provided
in
the
final
definition
for
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
such
as
the
ASTM
E1929
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Schafer,
Marc
Comment
Number:
0188
324
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.3
­
Revise
the
rule
to
exclude
the
license
requirement
from
the
definition
of
the
EP
Excerpt
Text:
The
Minimum
Qualifications
for
those
conducting
the
All
Appropriate
Inquiry
work
which
specifically
states
that
a
Professional
Geologist
of
a
Professional
Engineer
is
acceptable
is
objectionable
for
the
following
reasons:
1.)
A
Professional
Engineer
(
PE)
and
Professional
Geologist
(
PG)
receive
no
additional
experience
as
compared
to
an
engineer
with
a
Baccalaureate
degree
over
a
three
year
period
when
both
groups
work
in
environmental
investigations.
Those
successfully
receiving
PE
or
PG
status
will
not
have
garnished
additional
experience
in
their
studies
relative
to
environmental
releases
or
the
causes
of
such
releases
by
virtue
of
studying
for
the
PE
and
PG
exams.
The
additional
requirement
of
two
years
to
be
placed
on
the
Baccalaureate
is
therefore
arbitrary.
2.)
By
specifically
labeling
that
a
Professional
Engineer
(
PE)
and
Professional
Geologist
(
PG)
may
conduct
the
All
Appropriate
Inquiry
work,
it
appears
that
these
titles
are
a
preferred
class
and
therefore
more
desirable.
This
causes
confusion
with
the
user
where
they
must
compare
various
categories.
It
would
be
easier
for
the
user
to
eliminate
the
PE
and
PG
titles
and
use
only
the
experience
and
educational
qualifications.

Response:
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.

The
Agency
believes
that
being
a
licensed
professional
engineer
or
a
licensed
professional
geologist
is
beneficial
in
carrying
out
site
assessments.
However,
this
licensing
alone
is
not
adequate.
This
rule
also
requires
three
years
of
experience
for
such
individuals.
In
some
instances,
state
requirements
for
obtaining
a
P.
E.
or
P.
G.
license,
which
often
include
that
an
individual
have
a
certain
number
of
years
experience
after
obtaining
a
college
degree,
may
create
a
situation
where
individuals
applying
for
such
licenses
must
have
more
years
of
relevant
experience
to
become
an
environmental
professional
than
an
individual
who
has
an
engineering
or
geology
degree
and
is
required
by
the
final
rule
to
have
five
years
of
full
time
relevant
experience
to
qualify
as
an
environmental
professional.
Regardless,
both
sets
of
individuals
may
qualify
as
environmental
professionals.
325
Commenter
Organization
Name:
Outsource
Environmental
Company
Comment
Number:
0211
Excerpt
Number:
2
Excerpt
Text:
In
our
experience,
many
P.
E.'
s
and
P.
G.'
s,
for
example,
may
have
5
years
generally
related
experience,
but
do
not
posess
much
(
or
any)
of
these
specific
relevant
experiences
in
their
backgounds.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
5
Excerpt
Text:
The
EPA
has
proposed
that
a
"
certified
engineer"
be
placed
above
all
other
professional
qualifications
in
the
signing
off
on
All
Appropriate
Inquiry
investigations.
While
current
regulations
state
what
one
must
do
to
conduct
such
an
inquiry,
the
proposed
rule
would
change
this
to
state
who
that
person
should
be.

We
do
not
believe
engineers
should
be
given
special
status
in
the
environmental
assessment
industry
as
that
designation
does
necessarily
bring
with
it
the
needed
skill
set
to
protect
the
public
health.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Gray,
Cynthia
Comment
Number:
0215
Excerpt
Number:
1
Excerpt
Text:
I
think
it
is
appropriate
to
require
some
level
of
competency
and
qualifications
for
environmental
professionals
conducting
environmental
site
assessments,
and
managing
Brownfields
and
similar
EPA
or
other
State
regulated
projects.
The
historic
lack
of
certification/
qualification
has
led
to
occasional
substandard
work
in
the
area
of
environmental
compliance
and
remediation.

However,
it
appears
the
main
rationale
behind
limiting
the
registration/
qualification
to
Registered
Professional
Engineers
and
Registered
Professional
Geologists
is
to
ensure
ethical
behavior
in
addition
to
competency.
If
ethical
concerns
are
the
main
reason
EPA
has
accepted
the
American
Society
of
Civil
Engineers'
arguments
in
favor
of
this
limitation,
I
would
challenge
the
assertion
that
P.
E.
s
and
P.
G.
s
are
more
ethical
than
326
others
professionals
with
credentials
that
demonstrate
competency.
The
Institute
of
Hazardous
Materials
Management
and
the
Academy
of
Certified
Hazardous
Materials
Managers
insist
upon
the
adherence
to
equally
stringent
ethical
standards
by
their
diplomates
and
membership.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
2
Other
Sections:
NEW
­
2.1.8.3
­
The
proposed
minimum
requirements
will
have
a
negative
impact
on
the
ESA
industry,
small
businesses,
and
the
real
estate
market
Excerpt
Text:
First,
under
the
proposed
rule,
an
engineer
with
no
environmental
training
at
all
can
be
made
responsible
for
assessing
land
with
significant
environmental
contamination.
"
All
appropriate
inquiries"
require
data
collection
and
visual
inspection.
Such
duties
do
not
translate
into
the
professional
certification
of
"
engineer."
Placing
someone
in
charge
of
evaluating
environmental
liabilities
with
no
formal
environmental
training
is
a
risk
to
the
public
health.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Stevens,
Scott
Comment
Number:
0225
Excerpt
Number:
4
Other
Sections:
NEW
­
2.1.2
­
Revise
the
license
requirement
to
include
licensed
or
certified
professionals
other
than
professional
engineers
and
professional
geologists
Excerpt
Text:
It
is
important
that
professional
designations
for
conducting
inquiries
be
placed
on
the
same
level.
Engineers
should
not
be
given
special
status
in
this
industry
as
that
designation
does
automatically
bring
with
it
the
needed
skill
set
to
protect
the
public
health.
Instead,
place
all
professional
designations
on
the
same
level
and
make
level
of
experience
the
deciding
factor.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
1
327
Excerpt
Text:
­
Preferential
Recognition.
The
proposed
definition
of
an
Environmental
Professional
includes
individuals
who
possess
the
following
combinations
of
education
and
experience:

As
of
the
date
of
promulgation
of
the
final
rule,
a
person
with
a
Baccalaureate
or
higher
degree
in
Environmental
Science
or
Earth
Science
from
an
accredited
institution
of
higher
education
is
required
to
have
more
full­
time
relevant
work
experience
than
a
person
with
a
Professional
Engineers
license
or
a
Professional
Geologist
license
with
no
prior
environmental
experience,
thus
granting
preferential
recognition
over
those
with
environmental
education
and
experience.

Response:
Please
see
response
to
comment
number
0336,
excerpt
1.
Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
4
and
6
Excerpt
Text:
The
EPA
has
proposed
that
a
professional
engineer
be
placed
above
all
environmental
and
other
professional
qualifications
in
the
signing­
off
on
all
appropriate
inquiry
investigations.
Other
instances
of
this
profession
acceptance
proposal
have
been
found
in
other
laws.
Current
Federal
regulations
only
state
what
one
must
do
to
conduct
such
an
inquiry.
Such
an
unwarranted
elevation
of
professional
roles
by
one
government
agency
endangers
the
public
well­
being,
hurts
small
businesses
created
around
current
environmental
regulations,
and
could
slow
down
home
building
­
one
of
the
primary
engines
of
our
economy.

First,
under
the
proposed
rule,
an
engineer
with
no
environmental
training
at
all
can
be
made
responsible
for
assessing
land
with
significant
environmental
contamination.
Prior
to
acceptance
of
one
profession
as
an
environmental
standard,
EPA
should
define
the
criteria
of
what
an
environmental
professional
is
include
specific
educational
requirements
and
skill
sets.
"
All
appropriate
inquiries"
require
data
collection
and
visual
inspection.
Such
duties
do
not
translate
into
the
professional
certification
of
"
engineer."
Placing
someone
in
charge
of
evaluating
environmental
liabilities
with
no
formal
environmental
training
is
a
risk
to
the
public
health.

Fifthly,
it
is
important
to
note
that
EPA's
charter
is
to
protect
the
environment
and
not
endorse
any
one
profession.
Prior
to
enacting
any
environmental
regulation
with
specific
language
about
any
profession,
EPA
needs
to
validate
that
they
are
empowered/
chartered
328
with
such
a
task.
It
is
important
that
all
environmental
professional
designations
for
conducting
inquiries
be
placed
on
the
same
level.
Engineers
should
not
be
given
special
status
in
this
industry
as
that
designation
does
automatically
bring
with
it
the
needed
skill
set
to
protect
the
public
health.
Instead,
place
all
professional
designations
on
the
same
level
and
make
level
of
experience
the
deciding
factor.

Response:
Please
see
response
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).
Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
4
Excerpt
Text:
Thus,
merely
having
a
state
or
territorial
license
to
practice
a
profession,
such
as
engineering
or
geology,
does
not
necessarily
denote
that
an
individual
has
the
requisite
qualifications
and
experience
to
conduct,
coordinate,
and
oversee
the
gathering
and
evaluation
of
information
required
to
fulfill
the
AAI
requirements.
Environmental
Professionals
engaged
in
AAI
must
be
able
to
address
the
wide
range
of
issues
and
property
conditions
that
may
be
encountered
at
such
sites,
especially
those
that
have
been
filled
with
anthropogenic
materials
and/
or
have
been
used
for
extended
periods
and
multiple
industrial
purposes
that
may
have
involved
the
use,
storage,
manufacture,
and/
or
disposal
of
hazardous
substances
(
as
defined
under
CERCLA
and
the
Toxic
Substances
Control
Act
[
TSCA])
or
hazardous
waste
(
as
defined
under
RCRA).

Of
particular
concern
are
properties
where
underground
structures
(
e.
g.,
utilities,
storage
tanks,
process
vessels,
conveyance
systems,
surface
impoundments,
drying
beds,
lagoons,
French
drains,
cesspools,
burn
pits,
landfills)
may
have
existed
and
been
used
for
the
storage,
conveyance,
processing,
and/
or
disposition
and
management
of
hazardous
materials
or
hazardous
wastes,
including
fire
response
training,
dewatering
of
process
residuals,
or
other
past
practices
that
could
have
released
hazardous
constituents
into
the
environment
intentionally
or
unintentionally
or
in
an
uncontrolled
manner.

In
the
case
of
abandoned
or
razed
sites,
where
records
are
limited
or
non­
existent,
it
is
particularly
important
for
the
Environmental
Professional
to
be
knowledgeable
and
highly
competent
regarding
a
broad
spectrum
of
industrial
activities
and
the
typical
hazardous
materials
used
in
such
activities
over
the
relevant
operational
life
of
such
a
facility,
many
of
which
date
to
the
early
20th
century
before
the
modern
era
of
329
environmental
management
which
began
in
the
late
1960s
and
1970s.
To
conduct
AAI,
the
Environmental
Professional
should
not
only
be
proficient
and
have
a
working
knowledge
of
hazardous
substances
under
CERCLA
and
TSCA,
and
hazardous
wastes
under
RCRA,
but
also
have
a
working
knowledge
of
analytical
chemistry
sufficient
to
identify
and
characterize
such
substances
in
the
various
media
of
concern
that
may
be
encountered
at
a
facility,
including
soils,
surface
water,
ground
water,
indoor
air,
and
the
ambient
atmosphere.

In
this
regard,
only
a
limited
number
of
the
approximately
18
professional
engineering
examination
disciplines
deal
with
the
subjects
essential
to
performing
environmental
site
assessments
or
conducting
All
Appropriate
Inquiries.
As
examples,
agricultural,
civil,
environmental,
and
chemical
engineering
examinations
address
various
aspects
of
environmental
management,
whereas
electrical
and
computer
engineering,
metallurgical
engineering,
and
structural
engineering
professionals
likely
do
not
have
adequate
training
and
experience
to
address
environmental
matters
related
to
the
use
and
management
of
hazardous
substances
and
hazardous
wastes
in
commerce
or
industry.
Furthermore,
only
a
small
percentage
of
the
licensed
professional
engineers
in
the
U.
S.
practice
in
the
field
of
environmental
engineering.

Similarly,
registered
professional
geologists
are
required
only
to
meet
the
minimum
acceptable
criteria
to
become
licensed,
and
only
a
small
percentage
of
those
who
achieve
licensure
practice
or
become
familiar
with
the
subjects
and
issues
of
importance
in
which
a
highly
competent
or
expert
environmental
professional
needs
to
be
proficient
in
order
to
perform
AAI
activities.
For
example,
geologists
who
practice
remedial
investigation
and
remediation
are
likely
to
have
substantial
knowledge
and
expertise
in
the
use
and
possible
release
of
hazardous
substances
and/
or
hazardous
wastes
into
the
subterranean
environment
on
properties
used
for
commercial
or
industrial
purposes,
whereas
a
geologist
who
is
engaged
in
mining
exploration
or
water
supplies
development
is
not
likely
to
have
such
expertise.

Additionally,
because
the
legal
definition
of
"
engineering"
varies
from
one
state/
jurisdiction
to
another,
and
because
some
states
have
or
are
creating
other
professional
licensing
or
registration
requirements
for
other
disciplines
(
including
geologists),
IPEP
believes
that
the
above
suggested
insert
is
the
best
way
to
address
the
concern
for
relevant
experience
and
a
high
degree
of
competency.
As
errors
of
omissions
in
the
performance
of
environmental
site
assessments
or
All
Appropriate
Inquiries
can
result
in
serious
adverse
consequences
to
public
health
or
the
environment,
it
is
essential
that
such
activities
be
performed
not
just
by
junior
level
professionals
meeting
the
minimum
criteria
for
licensure
or
certification,
but
under
the
direction
of
an
experienced
environmental
professional
of
demonstrated
competence.

Likewise,
the
conduct
of
All
Appropriate
Inquiries,
should
be
performed
under
the
direction
of
and
be
reviewed
and
certified
by
those
with
qualifications
and
experience
in
multimedia
environmental
management.
A
major
distinction
of
the
QEP
credential
from
all
other
environmental
professional
credentials
is
the
requirement
that
QEPs
exhibit
comprehension
and
technical
capability
to
assess
multi­
media
environmental
impacts
in
330
their
professional
practice,
and
they
are
specifically
subjected
to
examination
on
this
concept.

There
is
a
further
concern
regarding
the
designation
of
professional
geologists
to
perform
AAIs
For
most
real
property
AAIs
the
quality
of
underlying
ground
water
is
an
item
of
concern.
For
some
properties
this
portion
of
the
AAI
is
so
important,
it
should
be
performed
under
the
direction
of
a
licensed/
registered
or
certified
professional
with
qualifications
and
experience
in
hydrogeology,
hydrology,
and
environmental
chemistry.
This
is
an
area
of
paramount
importance
to
not
only
owners/
operators
or
prospective
owners
of
the
real
property
of
interest,
but
also
adjacent
property
owners,
nearby
water
supply
owners/
operators,
and
the
local
or
state
health
authorities
responsible
for
drinking
water
quality
in
the
nearby
community.
Thus,
it
is
important
that
one
of
the
persons
on
a
team
responsible
for
performing
AAI
on
a
property
where
groundwater
quality
is
suspect,
or
vital
to
the
transaction,
have
a
working
knowledge
of
hydrogeology,
hydrology,
and
environmental
chemistry,
or
engage
the
services
of
an
individual
who
is
qualified
and
experienced,
and
licensed
and/
or
certified
in
these
practice
areas.

It
should
be
noted
that
few,
if
any,
registered
professional
engineers
have
demonstrated
proficiency
in
these
areas
unless
they
have
extensive
experience
in
AAIs,
ESAs,
or
site
remedial
investigation
and
remedial
action
implementation.
In
contrast,
only
a
small
percentage
of
professional
geologists
have
expertise
in
current
and
past
practices
involving
the
use
and/
or
disposition
of
hazardous
substances
and/
or
hazardous
wastes.
This
again
illustrates
the
need
to
fit
the
licensure
or
certification
criteria
to
the
qualifications
and
experience
of
the
individual
and
not
the
name
of
the
license/
registration
or
certification
specialty.
It
is
also
noteworthy
that
approximately
31
states
have
established
a
form
of
Registration/
Certification
Boards
for
Geologists
(
see
Appendix
B).

Accordingly,
IPEP
recommends
that
ASTM
1929­
98
be
identified
in
the
final
rule
as
the
appropriate
standard
to
use
for
designation
of
an
Environmental
Professional.

Response:
EPA
is
retaining
the
proposed
provision
to
include
within
the
definition
of
an
environmental
professional
individuals
who
are
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
full­
time
relevant
experience.
We
contend
that
individuals
licensed
by
state
and
tribal
governments,
or
by
any
department
or
agency
within
the
federal
government,
to
perform
all
appropriate
inquiries
or
environmental
site
assessments,
should
be
allowed
to
qualify
as
an
environmental
professional
under
today's
regulation.
State
and
tribal
agencies
may
best
determine
the
qualifications
defining
individuals
who
"
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
rule's
objectives
and
performance
factors"
within
any
particular
state
or
tribal
jurisdiction.
331
The
Agency
believes
that
being
a
licensed
professional
engineer
or
a
licensed
professional
geologist
is
beneficial
in
carrying
out
site
assessments.
However,
this
licensing
alone
is
not
adequate.
This
rule
also
requires
three
years
of
experience
for
such
individuals.
In
some
instances,
state
requirements
for
obtaining
a
P.
E.
or
P.
G.
license,
which
often
include
that
an
individual
have
a
certain
number
of
years
experience
after
obtaining
a
college
degree,
may
create
a
situation
where
individuals
applying
for
such
licenses
must
have
more
years
of
relevant
experience
to
become
an
environmental
professional
than
an
individual
who
has
an
engineering
or
geology
degree
and
is
required
by
the
final
rule
to
have
five
years
of
full
time
relevant
experience
to
qualify
as
an
environmental
professional.
Regardless,
both
sets
of
individuals
may
qualify
as
environmental
professionals.

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.

Given
the
performance­
based
qualifications
provided
in
the
final
definition
for
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
such
as
the
ASTM
E1929
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.
332
Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
5
Excerpt
Text:
Conducting
and
Overseeing
an
AAI
Is
Not
An
"
Engineering"
Task
The
conduct
of
an
AAI
is
not
in
and
of
itself
an
engineering
task
or
require
engineering
expertise,
and
should
not
be
the
exclusive
purview
of
registered
professional
engineers,
even
if
such
authority
were
to
be
limited
to
those
professional
engineers
who
have
qualifications
and
experience
and
have
demonstrated
competence
in
performing
such
activities.
If
the
findings
of
an
AAI
indicate
that
additional
investigation
and/
or
remediation
is
likely
to
be
needed
on
the
property
of
interest
or
adjacent
properties,
the
evaluation
of
appropriate
investigative
efforts
and
costs
may
require
the
expertise
of
an
appropriately
qualified
and
experienced
licensed
engineer
at
some
point
in
the
subsequent
efforts
that
follow
issuance
of
an
AAI
or
ESA
report
to
the
authorizing
party.
However,
such
follow­
up
efforts
are
beyond
the
scope
of
the
proposed
regulation.

Response:
Please
see
responses
to
comment
numbers
0040
(
excerpt
1)
and
0336
(
excerpt
1).

Commenter
Organization
Name:
ABCEP
Comment
Number:
0271
Excerpt
Number:
1
Excerpt
Text:
Our
Comments
on
the
Environmental.
Professional
(
EP)
definition
^
pertain
to
recognizing
and
including
persons
of
the*
appropriate
and
relevant
backgrounds
to
conduct
the
relevant
environmental
inquiries.
While
the
"
Environmental
Professional"
definition
intends
to
insure
that
persons
responsible
for
determining
past
and
present
conditions
affecting
human
health
and
the
environment
need
an
appropriate
level
of
background
and
experience,
the
proposed
regulation
misses
this
goal
by
recognizing
professional
licenses
that
may
or
may
not
certify
that
the
person
has
the
skills
necessary
to
access
the
complex
variables
needed
for
the
investigation
of
a
site
in
question.
For
example,
a
Professional
Engineer
(
PE)
could
have
all
of
his
professional
and
educational
background
in
electrical,
structural,
or
systems
engineering,
and
realistically
lack
the
background
to
recognize
biological
effects.
Recognizing
that
someone
has
a
PE
or
Professional
Geologist
license
does
not
ensure
that
they
have
an
adequate
environmental
background.
The
same
can
be
said
for
state
environmental
licenses.
For
both
environmental
and
engineering
licenses,
each
state
has
their
own
exams
and
their
own
standards.
Some
states
require
that
skills
and
educations
be
kept
current,
and
many
do
not.
Under
your
EP
definition,
a
PE
with
a
background
in
electrical
engineering
who
received
his
license
30
years
ago,
and
may
have
worked
in
his
field
for
3
years,
at
the
beginning
of
his
career,
would
be
qualified
to
conduct
inquires
under
CERCLA.
Realistically,
this
may
meet
the
letter
of
the
law,
but
is
unrealistic
in
what
the
Agency
is
trying
to
achieve.
333
Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
6
Other
Sections:
NEW
­
2.1.4
­
Revise
educational
requirements
to
allow
individuals
with
Baccalaureate
or
higher
degrees
in
areas
other
than
engineering,
environmental
science,
and
earth
science
and
five
or
more
years
of
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
The
EP
is
defined
in
§
312.10
(
b)(
1)
and
(
2).
Essentially,
the
qualifications
involve
either
334
holding
a
PE
or
PG
certification
and
three
years
of
full
time
relevant
experience;
or
holding
a
Baccalaureate
or
higher
degree
in
the
relevant
disciplines
of
engineering,
environmental
science,
or
earth
science
plus
five
years
of
full
time
relevant
experience.

Comment:
We
disagree
with
the
minimum
qualifications
for
an
EP.
The
current
language
is
far
too
restrictive.
Having
the
specified
professional
certifications
or
degrees
has
no
relevance,
in
our
professional
opinion.
In
our
more
than
20
years
of
experience
in
performing
Phase
I
investigations,
we
have
seen
no
correlation
between
certifications
or
degree
fields
and
the
competent
undertaking
of
a
site
investigation.
There
is
an
important
thought
process
that
is
necessary
in
order
to
complete
a
quality
Phase
I
investigation.
In
part,
it
requires
knowledge
about
commercial
and
industrial
processes
and
activities,
including
by­
products.
But
it
also
requires
an
ability
to
comb
through
municipal
records,
historical
sources,
and
other
reference
material
in
an
effort
to
put
together
an
historical
use
puzzle.
PE
certifications
or
degrees
in
engineering
or
specific
sciences
have
little
bearing
on
the
ability
of
the
professional
to
appropriately
conduct
such
research.
We
strongly
recommend
broadening
the
criteria
to
a
single
one
(
beyond
the
grandfathering
threshold)
involving
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
and
three
years
of
relevant
full­
time
experience.

Response:
Please
see
response
to
comment
number
0072,
excerpt
2.

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0326
Excerpt
Number:
2
Excerpt
Text:
The
EPA/
NRMC
must
reconsider
this
definition.
The
definition
should
only
include
two
335
criteria:
Relevant
experience
and
Applicable
Certification.
Experience,
regardless
of
secondary
education,
must
be
the
primary
criteria.
The
years
required
may
be
adjusted
based
on
"
applicable"
education
or
licence
but
experience
must
be
the
focus.
Applicable
Certification
should
not,
and
does
not,
necessarily
mean
a
PE
or
PG.
In
fact,
neither
a
PE
or
PG
examination
(
in
almost
all
cases)
includes
significant
testing
on
applicable
AAI
areas.
In
the
area
of
AAI
the
Certified
Hazardous
Materials
Manager,
beyond
doubt,
provides
for
a
much
more
complete
examination
and
proof
of
experience
than
either
a
PE
or
PG.
It
is
agreed
that
no
licence/
certification
encompasses
all
the
experience
needed
for
AAI
work,
and
hence
they
must
be
tied
to
experience
but
to
give
weight
to
a
PE
and
PG
and
not
to
a
CHMM
and/
or
other
certifications,
is
entirely
inappropriate.

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0336
(
excerpt
1).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
6
Other
Sections:
NEW
­
2.1.4
­
Revise
educational
requirements
to
allow
individuals
with
Baccalaureate
or
higher
degrees
in
areas
other
than
engineering,
environmental
science,
and
earth
science
and
five
or
more
years
of
relevant
experience
to
qualify
as
EPs
Excerpt
Text:
2)
FAA
believes
that
the
qualifications
for
an
EP
should
also
include
those
with
a
Bachelor's
(
BA
or
BS)
in
chemistry,
physics,
and/
or
the
life
sciences
plus
years
of
relevant
experience.
Limiting
the
title
to
just
engineers,
geologists,
and
people
with
earth
and
environmental
science
degrees
arbitrarily
punishes
those
who
entered
the
business
prior
to
most
schools
establishing
environmental
science
programs
but
who
do
not
yet
336
have
the
requisite
10
years
of
experience
before
the
publication
of
the
final
rule.
Also,
there
is
no
reason
to
assume
that
someone
with
a
professional
engineer's
(
PE)
or
professional
geologist's
(
PG)
certification
will
better
understand
and
judge
a
property's
likelihood
of
contamination
after
three
years
of
relevant
experience
than
someone
with
a
BS
in
a
relevant
degree
and
five
years
of
experience.
Therefore,
FAA
believes
that
it
is
arbitrary
and
capricious
to
require
those
with
a
BS
to
have
two
extra
years
of
relevant
experience
than
a
PE
or
PG
must
have
in
order
to
qualify
as
an
EP.

Response:
Please
see
response
to
comment
number
0099,
excerpt
1.

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
3
Excerpt
Text:
Section
III,
D
Qualifications.
I
recognize
the
contentiousness
of
this
section
but
it
does
not
appear
that
the
regulatory
development
process
recognized
that
AAI
can
include
multi­
levels
of
investigations,
e.
g.,
Phase
I,
II,
Expanded
Phase
II.
A
Phase
I
is
largely
an
historical
document,
not
engineering
or
geological
study.
In
addition
to
performing
Phase
Is
for
close
to
20
years
I
have
and
continue
to
review
other
third
party
Phase
I
documents.
No
question
that
there
are
many
reports
that
are
total
frauds,
but
of
the
four
absolutely
worst
reports
I
have
ever
reviewed,
two
were
by
PEs
and
one
was
by
a
PG
(
the
fourth
was
by
a
person
that
clearly
had
a
conflict
of
interest).
My
point
is
that
very
little
in
the
training
of
a
PE
or
PG
better
qualifies
that
category
to
be
better
Phase
I
producers.
A
critical
aspect
of
Phase
Is
is
how
they
express
their
findings.
Neither
of
these
skills
is
commonly
emphasized
in
the
education
of
PEs
or
PGs.
337
Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0336
(
excerpt
1).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0371
Excerpt
Number:
2
Excerpt
Text:
I
find
it
interesting
that
two
specific
licenses
are
listed
(
e.
g.
PE
and
CPG)
that
qualify
as
environmental
professionals
(
EP).
While
both
PE
and
CPG
are
issued
by
states,
they
do
not
meet
all
the
requirements
listed
for
an
environmental
professional
in
the
proposed
rule.
Specifically,
CPG's
at
least
in
the
state
of
Ohio,
are
not
required
to
pass
an
examination
to
show
competence
in
their
field.
There
is
no
requirement
for
continuing
education
to
maintain
either
the
CPG
or
PE.

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0336
(
excerpt
1).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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
338
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
Cohen,
Irving
Comment
Number:
0391
Excerpt
Number:
1
Other
Sections:
NEW
­
2.1.2
­
Revise
the
license
requirement
to
include
licensed
or
certified
professionals
other
than
professional
engineers
and
professional
geologists
Excerpt
Text:
However,
I
feel
that
the
definition
is
excluding
an
important
sector
of
the
environmental
practice
community
and
places
heavy
reliance
on
recognition
on
professional
licensure
that
may
not
actually
be
relevant
to
environmental
disciplines.

The
mere
fact
that
a
person
is
a
licensed
professional
engineer
does
not
necessarily
indicate
professional
competence
in
the
field
of
environmental
practice;
your
proposed
certification
does
not
preclude
that
potential.
I
do
not
question
the
ethics
of
a
PE
in
not
attempting
to
accept
any
responsibility
that
he
is
not
professionally
competent
to
undertake,
however
your
definition
allows
a
de
facto
acceptance
of
a
PE
as
an
"
environmental
professional".
I
wish
to
point
out
to
you
that
there
are
certifications,
such
as
the
ABCEP
certification
of
"
Certified
Environmental
Professional
(
CEP)
that
clearly
addresses
the
knowledge
base
requirement
of
such
an
individual.
Moreover,
our
certification
program
is
accredited
by
the
same
accreditation
body
for
a
variety
of
PE
subspecialties,
the
Council
of
Engineering
&
Scientific
Specialty
Boards
(
CESB).

I
therefore
request
that
you
consider
my
comments
as
well
as
my
support
of
the
comments
of
the
National
Association
of
Environmental
Professionals
(
NAEP)
as
well
as
my
colleagues
in
ABCEP
requesting
the
word
changes
to
include
"
Certified
Environmental
Professionals
(
CEP)"
to
your
definition
of
an
"
Environmental
Professional".

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
EPA
agreed
with
commenters
who
pointed
out
that
the
requirement
that
environmental
professionals
hold
specific
types
of
science
or
engineering
degrees
was
too
limiting.
In
the
final
rule,
persons
with
any
science
or
engineering
degree
(
regardless
of
specific
discipline
in
science
or
engineering)
can
qualify
as
an
environmental
professional,
if
they
also
have
five
(
5)
years
of
full­
time
relevant
experience.
339
In
addition,
many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.

EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
2
Excerpt
Text:
I
find
it
interesting
that
two
specific
licenses
are
listed
(
e.
g.
PE
and
CPG)
that
qualify
as
environmental
professionals
(
EP).
While
both
PE
and
CPG
are
issued
by
states,
they
do
not
meet
all
the
requirements
listed
for
an
environmental
professional
in
the
proposed
340
rule.
Specifically,
CPG's
at
least
in
the
state
of
Ohio,
are
not
required
to
pass
an
examination
to
show
competence
in
their
field.
There
is
no
requirement
for
continuing
education
to
maintain
either
the
CPG
or
PE.

While
there
are
a
number
of
certifications
available
for
environmental
professionals
to
obtain,
the
Certified
Hazardous
Materials
Manager
(
CHMM)
is
the
most
established
and
recognized
in
the
field.
In
order
to
obtain
the
CHMM
credential,
one
must
meet
most
of
the
requirements
already
listed
in
the
proposed
rule
for
education
and
experience
and
unlike
the
CPG,
an
examination
must
be
passed
to
evaluate
competence
in
the
field.
CHMMs
are
also
required
to
remain
current
in
their
field
through
continuing
education
or
they
loose
the
credential,
unlike
both
the
CPG
and
PE.

The
EPA
should
take
note
of
the
fact
that
individuals
seeking
to
demonstrate
competency
in
their
field
take
the
time
and
effort
to
obtain
valid
certifications
and
maintain
these
certifications.
As
there
is
not
state
or
national
certification
body
for
environmental
professionals,
private
organizations
have
had
to
step
in.
I
think
the
EPA
should
reevaluate
their
position
of
not
relying
on
private
organizations
or
they
should
seek
to
develop
such
certification
at
the
national
level.
The
Occupational
Safety
and
Health
Administration
has
referenced
certifications
from
private
organizations
in
their
regulations,
specifically
the
CIH
in
asbestos
regulations.
Therefore,
if
one
governmental
agency
can
recognize
a
private
organization's
certification,
it
would
seem
logical
that
another
could
as
well.

Response:
Please
see
responses
to
comment
numbers
0371
(
excerpt
2)
and
391
(
excerpt
1).

Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
1
Excerpt
Text:
The
strong
emphasis
on
professional
engineering
or
a
professional
geologist
license
is
not
borne
out,
in
my
experience,
of
reviewing
hundreds
of
Phase
I
reports
and
remediation
studies.

The
education
of
PEs
and
PGs
tends
to
focus
on
quantitative
analysis.
Phase
I
work,
on
the
other
hand,
is
mainly
a
qualitative
analysis.
It's
based
more
on
interviews,
site
inspections,
historical
source
review.
It
involves
review
of
the
reliability
and
thoroughness
of
the
information
collected.
When
data
is
available,
it
is
frequently
limited
and
quantity
is
often
related
to
nearby
sites
or
very
limited
in
scope.

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0336
(
excerpt
1).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
341
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
4
Excerpt
Text:
Some
AA
inquiries
will
focus
on
agricultural
land,
timberland,
rangeland,
or
impacts
to
rivers
or
fisheries.
PEs
and
PGs
lack
specific
academic
training
on
some
of
these
issues.
Many
of
these
professionals
do
learn
about
these
fields
of
life
science
on
the
job
and
are
well
qualified
to
perform
adequate
AAI
investigations
in
areas
where
they
lack
academic
background.

Likewise,
professionals
with
life
science
academic
backgrounds
can
learn
on
the
job
the
necessary
areas
of
other
technical
fields,
such
as
engineering,
environmental
chemistry
or
geology,
where
they
may
have
academic
weaknesses.
A
good
BA
or
a
BS
degree
is
a
sound
basis
for
an
environmental
professional.

In
my
experience
of
reviewing
Phase
I's
both
as
a
senior
environmental
consultant
and
as
an
environment
banker,
some
of
the
best
Phase
I's
are
written
by
liberal
arts
majors,
and
oddly,
history
majors.

Response:
Please
see
responses
to
comment
numbers
0072
(
excerpt
2)
and
0336
(
excerpt
1).

Individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.
342
Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
2
Excerpt
Text:
A
state
licensed
engineer
or
geologist
cannot
be
considered
as
being
equivalent
to
a
bachelor,
master
or
doctorate
degree
in
environmental
education
unless
they've
received
comparable
training
in
environmental
science.
It's
a
false
conclusion
that
all
professional
engineers
and
geologists
are
knowledgeable
about
environmental
matters.

It
would
be
fair
to
state
that
engineers
and
geologists
with
three
years
of
verified
work
experience
would
be
comparable
to
somebody
with
an
environmental
science
degree
who
also
had
three
years
of
practical
work
experience
and
the
same
thing
could
be
true,
also,
of
five
years
work
experience
if
EPA
so
decided
to
view
it
in
that
manner.

Response:
EPA
understands
that
not
all
engineers
are
knowledgeable
in
site
assessment
processes
and
techniques.
For
that
reason,
the
definition
of
environmental
professional
provided
in
the
final
rule
includes
both
experience
and
educational
qualifications.

EPA
notes
that
individuals
licensed
as
P.
E.
s
or
P.
G.
s
are
restricted
to
practicing
only
in
their
field
of
expertise.
To
obtain
such
a
license,
most
states
require
that
individuals
have
accumulated
three
or
more
years
of
experience
in
their
field.
Therefore,
the
Agency
has
determined
that
P.
E.
s
and
P.
G.
s
with
three
years
of
full­
time
relevant
experience
(
as
defined
in
the
final
rule)
are
sufficiently
qualified
to
oversee
the
conduct
of
all
appropriate
inquiries
investigations.

Further,
note
that
the
final
rule
states,
"
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(
e)
and
(
f)."
This
definition
requires
that
any
individual
conducting
an
all
appropriate
inquiry
assessment
must
meet
these
minimum
requirements
as
well
as
meet
the
education
and
experience
requirements.
No
class
of
individuals
receives
special
treatment
in
this
343
regard.
The
final
rule
also
requires
that
all
environmental
professionals
remain
current
in
their
field.

See
also
the
response
to
comment
number
0072
(
excerpt
2).

Commenter
Organization
Name:
Young,
Richard
Comment
Number:
PM­
0207­
0001
Excerpt
Number:
5
Excerpt
Text:
The
law
is
too
stringent.
It
forces
everybody,
in
effect,
to
become
a
professional
engineer
or
a
geologist
when
they
are
not­­
professional
geologist,
pardon
me­­
when
it's
not­­
when
it's
an
established
standard
for
all
other
EPA.
Providing
or
establishing
professional
engineers
and
geologists
as
a
standard
for
brownfields
is
not
appropriate
at
this
venue.
A
better
venue
for
this
issue
is
outside
the
brownfields
law
and
in
front
of
a
U.
S.
EPA
administrative
law
judge
when
the
case
arises.

Response:
Although
the
final
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
rule
does
not
restrict
the
definition
of
an
environmental
professional
to
these
licensed
individuals.
The
definition
of
an
environmental
professional
also
includes
individuals
who
hold
a
Baccalaureate
or
higher
degree
from
an
accredited
institution
of
higher
education
in
engineering
or
science
and
have
the
equivalent
of
five
(
5)
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries.
In
addition,
individuals
with
ten
years
of
full­
time
relevant
experience
in
conducting
environmental
site
assessments,
or
all
appropriate
inquiries
qualify
as
environmental
professionals
for
the
purpose
of
conducting
all
appropriate
inquiries.
Individuals
with
these
qualifications
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
objectives
and
performance
factors
included
in
§
312.20(
e)
and
(
f).
344
2.3.2
Revise
the
Proposed
Rule
to
Include
a
Provision
Relieving
the
EP
of
a
Liability
for
Contaminant
Exposure
of
Persons
Working
under
His/
Her
Supervision
or
Responsible
Charge
Commenter
Organization
Name:
Hodgson,
R
S
Comment
Number:
0075
Excerpt
Number:
2
Excerpt
Text:
My
second
concern
is
over
the
possible
contaminant
exposure
of
those
working
under
the
responsible
charge
of
the
Registered
Professional
Engineer
and/
or
Registered
Professional
Geologist.
If
the
EPA
requires
that
these
people
be
included
in
the
process
then
provisions
should
be
included
for
the
additional
liability
that
their
presence
brings
to
the
process.
This
liability
should
not
fall
upon
the
Registered
Professional
Engineer
and/
or
Registered
Professional
Geologist
if
in
their
opinion
the
inclusion
of
these
additional
people
in
the
process
is
unnecessary.

Response:
Other
than
the
requirement
that
an
all
appropriate
inquiries
investigation
be
managed
by,
or
conducted
under
the
supervision
or
responsible
charge
of,
a
person
meeting
the
definition
of
environmental
professional,
specific
staffing
issues
related
to
the
conduct
of
individual
site
assessment
investigations
is
beyond
the
scope
of
the
rule.
The
final
rule
allows
for
individuals
who
do
not
meet
the
definition
of
environmental
professional
to
contribute
to
the
all
appropriate
inquiries
investigation
as
long
as
their
activities
are
conducted
under
the
supervision
or
responsible
charge
of
an
environmental
professional.
The
final
rule
includes
no
other
restrictions
or
requirements
with
regard
to
how
the
investigations
are
staffed.
The
Agency
has
no
position
on
the
staffing
and
liability
issues
raised
by
the
commenter.
345
2.3.3
Adopt
the
Definition
of
EP
as
Specified
in
the
ASTM
Standard
Commenter
Organization
Name:
Froehlich,
R.
A.
Comment
Number:
0119
Excerpt
Number:
1
Other
Sections:
NEW
­
2.3.1
­
Professional
engineer
certification
and
professional
geologist
certification
do
not
ensure
high
level
of
professional
ability
Excerpt
Text:
If
the
objective
of
this
change
in
rules
is
to
ensure
that
all
appropriate
inquiry
is
performed
by
a
qualified
environmental
professional,
the
qualifications
should
mirror
the
qualifications
of
environmental
professionals
as
included
in
the
current
ASTM
Standard
on
credentials
for
environmental
professionals.
Merely
licensing
as
a
P.
E.
or
P.
G.
does
not
ensure
the
highest
levels
of
professionalism
in
environmental
professionals.
Independent
credentialling
by
an
organization
that
meets
the
requirements
of
the
ASTM
standard
which
is
supported
by
the
environmental
professional
associations
is
the
best
way
to
ensure
that
all
appropriate
inquiry
is
made
by
well­
qualified
environmental
professionals.
I
stongly
recommend
that
environmental
professionals
should
be
certified
as
a
Qualified
Environmental
Professional
by
the
Institute
for
Professional
Environmental
Practice.
The
IPEP
certification
program,
one
of
the
ASTM
compliant
certification
programs,
since
it
is
supported
by
the
Air
&
Waste
Management
Association,
the
Water
Environment
Federation,
the
National
Association
of
Environmental
Managers,
the
American
Industrial
Hygiene
Association,
the
Solid
Waste
Association
of
North
America,
the
American
Association
of
Environmental
Engineers,
and
several
other
environmental
professional
organizations.
All
of
these
professional
organizations
existed
well
before
the
certification
issues
arose,
and
each
of
the
sponsoring
organizations
supports
the
QEP
certification
as
the
only
environmental
professional
certification.

Response:
EPA
is
not
recognizing
in
the
regulatory
language
of
the
final
rule
private,
nongovernmental
organizations
whose
certification
requirements
meet
the
environmental
professional
qualifications
included
in
the
final
rule.
The
final
rule
does
not
reference
any
private
party
professional
certification
standards.
Given
the
performance­
based
qualifications
provided
in
the
final
definition
of
an
environmental
professional,
such
an
approach
is
not
necessary.
Therefore,
there
is
no
need
to
reference
or
depend
upon
an
independent
standard
that
assesses
professional
certification
standards.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
Peyton,
J.
Comment
Number:
0216
346
Excerpt
Number:
4
Excerpt
Text:
Or
better
yet,
simply
follow
what
ASTM
has
done
since
1993
and
let
the
free
market
determine
who
can
and
cant
provide
AAI
services.

Response:
EPA
determined
through
the
discussions
of
the
negotiated
rulemaking
committee
during
the
development
of
the
proposed
rule
and
through
an
analysis
of
public
comments
received
in
response
to
the
proposed
rule
that
the
final
rule
should
include
a
definition
of
environmental
professional.
The
statute
requires
that
all
appropriate
inquiries
include
an
inquiry
conducted
by
an
environmental
professional.
EPA
determined
that
to
effectively
implement
the
statute
and
define
the
intent
of
the
law
it
is
essential
to
define
who
should
oversee
the
conduct
of
the
inquiry.

See
also
the
response
to
comment
number
0353,
excerpt
4.
347
2.3.4
Persons
Who
Do
Not
Qualify
as
EPs
Should
Not
Be
Allowed
to
Assist
in
the
Conduct
of
All
Appropriate
Inquiries
Commenter
Organization
Name:
Academy
of
Certified
Hazardous
Materials
Managers
Comment
Number:
0140
Excerpt
Number:
3
Excerpt
Text:
In
reference
to
the
posed
question
concerning
whether
or
not
persons
not
meeting
the
definition
of
an
EP
can
contribute
to
the
Conduct
of
All
Appropriate
Inquiries,
we
recommend
that
only
EPs
be
able
to
perform
those
duties
as
prescribed
by
the
proposed
rule.
It
is
not
logical
to
have
undergone
all
of
the
discussions
as
to
whom
is
a
qualified
EP,
as
proposed,
and
then
to
negate
that
definition
by
allowing
lesser­
qualified
individuals
to
perform
the
activities.
By
allowing
non­
EPs
to
perform
the
duties
EPA
is
suggesting
that
an
EP
is
only
fulfilling
a
managerial
or
oversight
function
and
if
so;
why
is
the
proposed
EP
definition
so
specifically
limiting?

Response:
The
final
rule
retains
the
allowance
for
individuals
not
meeting
the
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.
EPA
determined
that
some
activities
required
by
the
final
rule
may
be
conducted
effectively
and
efficiently
by
individuals
who
may
not
necessarily
meet
the
definition
of
environmental
professional.
For
example,
research
regarding
past
owners
of
a
property
may
best
be
performed
by
a
title
search
expert
or
an
attorney.
Data
base
searches
to
determine
past
uses
of
a
property
may
be
conducted
by
a
research
assistant
or
a
librarian.

This
provision
of
the
final
rule
allows
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
definition
of
an
environmental
professional
and
reviews
the
results
and
conclusions
of
the
inquiries
and
signs
the
final
report.
All
activities
conducted
during
the
course
of
the
inquiries
must
be
conducted
under
the
supervision
of
responsible
charge
of
an
environmental
professional.
The
final
rule
requires
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
§
312.10.

Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
4
Excerpt
Text:
348
However,
I
would
like
to
express
my
concern
that
the
AAI
rule
allows
for
individuals
who
do
not
qualify
as
an
EP
to
conduct
an
environmental
assessment
"
under
the
supervision
or
responsible
charge
of"
an
EP.
The
AAI
rule
places
an
enormous
importance
on
professional
judgment
and
experience;
however,
the
rule
permits
individuals
who
are
not
qualified
EPs
to
conduct
site
visits,
interviews,
or
visual
inspections.
This
compromises
the
high
standards
for
EPs
ultimately
responsible
for
the
quality
and
results
of
the
work.
Allowing
personnel
who
do
not
meet
the
qualifications
of
an
EP
to
conduct
most
of
the
work
required
for
an
AAI
under
the
supervision
of
a
qualified
EP
dilutes
the
quality
of
the
assessment.
Halff
Associates,
Inc.
will
only
allow
individuals
who
meet
the
requisite
education,
training,
and
experience
to
practice
as
environmental
professionals.
I
believe
that
the
proposed
rule
should
include
minimum
education,
licensure,
and/
or
certification
requirements
even
for
those
who
are
performing
work
under
the
supervision
of
an
EP.

Response:
Please
see
response
to
comment
number
0140,
excerpt
3.

Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
5
Excerpt
Text:
1.
Environmental
Inquiries
by
Unqualified
Personnel
Section
223
of
the
Brownfields
Law
provides
that
certain
specific
criteria
must
be
included
in
the
AAI
regulations.
Among
other
requirements,
the
law
states
that
the
Administrator
shall
require
in
the
AAI
rules:

(
I)
The
results
of
an
inquiry
by
an
environmental
professional
This
criterion
is
also
specifically
addressed
in
the
97
ASTM
standard.
The
definition
contained
in
the
97
ASTM
standard
requires
that
an
environmental
professional
possess
sufficient
training
and
experience
necessary
to
conduct
site
reconnaissance
and
interviews
and
must
have
the
ability
to
develop
opinions
and
draw
conclusions
about
the
condition
of
the
property
at
issue.
The
97
ASTM
Standard
also
requires
that
site
reconnaissance,
interviews,
as
well
as
the
review
and
interpretation
of
the
information
upon
which
the
report
is
based
must
be
performed
by
the
environmental
professional.
Other,
more
limited
activities,
such
as
records
review,
may
be
performed
under
the
supervision
of
an
environmental
professional.

Unfortunately,
under
Section
312.21
of
the
draft
proposed
AAI
rules,
"
Results
of
an
Inquiry
by
an
Environmental
Professional"
there
is
no
requirement
that
an
environmental
professional
perform
any
of
these
duties,
in
fact
non­
professionals
can
conduct
the
entire
inquiry,
including
site
inspections
and
interviews
if
the
are
simply
under
the
charge
or
supervision
of
an
environmental
professional.
Allowing
personnel
who
are
not
qualified
as
environmental
professionals
to
perform
these
critical
duties
is
inconsistent
with
the
97
349
ASTM
standard
and
is
not
supported
by
the
Brownfields
law.

The
dilution
in
the
draft
proposed
AAI
rules
of
the
central
role
played
by
the
qualified
Environmental
Professional
on
key
matters
undermines
the
reliability
of
the
AAI
standard,
greatly
increasing
the
likelihood
that
serious
environmental
problems
will
be
missed.
This
defeats
a
central
the
purpose
of
the
AAI
standard­
to
assess
the
condition
of
a
site
prior
to
sale
or
transfer
and
to
ensure
that
the
condition
is
taken
into
account
in
the
transaction
and
in
the
purchaser's
future
activities
at
the
site.

Response:
The
final
rule
assures
that
a
highly­
qualified
environmental
professional
manages
the
conduct
of
all
of
the
required
all
appropriate
inquiries
activities
by:

1.
Establishing
a
definition
of
environmental
professional
that
sets
stringent
qualifications
for
the
individual
responsible
for
all
activities
conducted
during
the
all
appropriate
inquiries
investigation
(
see
§
312.10).
These
qualifications
are
significantly
more
stringent
than
the
requirements
of
the
ASTM
E1527­
97
standard
and
will
serve
to
raise
the
standard
of
quality
of
environmental
site
assessments.
2.
Requiring
that
the
environmental
professional,
after
reviewing
the
results
of
all
inquiries
and
data
searches
required
by
the
regulation,
provide
a
written
report
of
findings
that
includes
an
opinion
of
the
environmental
conditions
of
the
property
and
documents
all
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
property
(
see
§
312.21(
c)).
3.
Requiring
that
the
environmental
professional
sign
the
written
report
that
documents
all
results
of
the
all
appropriate
inquiries
investigation.
When
signing
the
report,
the
environmental
professional
must
include
two
statements
with
the
signature
block.
One
must
state
that
the
person
signing
the
report
meets
the
required
qualifications
of
an
environmental
professional
and
the
other
must
state
that
the
all
appropriate
inquiries
investigation
was
completed
in
compliance
with
the
final
regulations
(
see
§
312.21(
d)).

The
final
rule
retains
the
allowance
for
individuals
not
meeting
the
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.
EPA
determined
that
some
activities
required
by
the
final
rule
may
be
conducted
effectively
and
efficiently
by
individuals
who
may
not
necessarily
meet
the
definition
of
environmental
professional.
For
example,
research
regarding
past
owners
of
a
property
may
best
be
performed
by
a
title
search
expert
or
an
attorney.
Data
base
searches
to
determine
past
uses
of
a
property
may
be
conducted
by
a
research
assistant
or
a
librarian.

This
provision
of
the
final
rule
allows
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
definition
of
an
environmental
professional
and
reviews
the
results
and
conclusions
of
the
inquiries
and
signs
the
final
report.
All
activities
350
conducted
during
the
course
of
the
inquiries
must
be
conducted
under
the
supervision
or
responsible
charge
of
an
environmental
professional.
The
final
rule
requires
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
§
312.10.

In
addition
to
establishing
who
must
oversee
the
conduct
of
the
all
appropriate
inquiries
activities
and
prescribing
the
types
of
activities
that
must
be
conducted
to
address
each
of
the
statutory
criteria,
the
final
rule
establishes
clear
objectives
for
the
inquiries
and
a
set
of
performance
factors
that
must
be
met
in
carrying
out
the
requirements
of
each
criteria.
The
objectives
clearly
establish
the
types
of
information
that
must
be
collected
during
the
conduct
of
the
inquiries
(
see
§
312.20(
d)).
The
performance
factors
establish
quality
parameters
that
must
be
met
when
collecting
the
information
and
undertaking
the
activities
required
by
the
statutory
criteria
(
see
§
312.20(
e)).
The
objectives
and
performance
factors
must
be
followed
when
conducting
the
activities
required
to
meet
each
criteria.
They
serve
to
guide
the
conduct
of
all
activities
required
by
the
statutory
criteria
and
ensure
that
all
activities
are
conducted
with
clear
objectives
and
to
a
standard
of
high
quality.

Commenter
Organization
Name:
Belaire,
Kent
Comment
Number:
0267
Excerpt
Number:
2
Excerpt
Text:
The
AAI
rule
allows
for
an
environmental
assessment
to
be
conducted
"
under
the
supervision
or
responsible
charge
of,
an
EP."
The
AAI
rule
places
an
enormous
importance
on
professional
judgment
and
experience,
however,
the
rule
permits
individuals
who
are
not
qualified
EPs
to
conduct
site
visits,
interviews,
or
visual
inspections.
This
compromises
the
high
standards
for
EPs
ultimately
responsible
for
the
quality
and
results
of
the
work.
Allowing
personnel
who
do
not
meet
the
qualifications
of
an
EP
to
conduct
most
of
the
work
required
for
Phase
I
under
the
supervision
of
a
qualified
EP
dilutes
the
quality
of
the
assessment.
Halff
Associates
only
allows
individuals
who
meet
the
education,
training,
and
experience
requirements
to
practice
as
environmental
professionals.
The
rule
should
include
minimum
education
requirements
consistent
with
the
requirements
for
an
EP,
for
those
who
perform
AAI
studies
under
the
supervision
of
an
EP.

Response:
Please
see
response
to
comment
number
0140,
excerpt
3.

Commenter
Organization
Name:
Congressmen
Dingell,
Boxer,
et
al
Comment
Number:
0332
Excerpt
Number:
4
Excerpt
Text:
Section
101(
35)(
B)
of
the
Comprehensive
Environmental
Response,
Compensation,
and
351
Liability
Act
(
CERCLA)
as
amended
by
section
223
of
the
Brownfields
law
requires
that
the
standards
and
practices
established
in
the
AAI
rule
shall
include
the
results
of
an
inquiry
by
an
environmental
professional.
The
law
clearly
requires
that
the
inquiry
be
conducted
by
an
environmental
professional
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices.
Even
under
the
interim
standard
established
in
the
Brownfields
law,
the
American
Society
for
Testing
and
Materials
Standard
E­
1527­
97,
the
key
elements
of
an
inquiry,
including
the
site
inspections
and
critical
interviews,
must
be
conducted
by
an
environmental
professional.

Under
Section
312.21
of
the
proposed
AAI
rule,
an
environmental
professional
is
not
required
to
conduct
the
inquiry.
In
fact,
none
of
the
detailed
qualifications
for
an
environmental
professional
established
in
the
proposed
rule
are
necessary
for
the
person
actually
conducting
the
inquiry.
This
includes
site
inspections
and
interviews
with
hazardous
materials
experts
associated
with
the
site.
An
environmental
professional
need
not
participate
directly
in
the
inquiry
at
all,
but
need
only
supervise
or
have
the
person
conducting
the
inquiry
under
his
or
her
charge.
This
is
inconsistent
with
the
intent
of
the
Brownfields
law
and
with
the
generally
accepted
good
commercial
and
customary
standards
and
practices
codified
in
the
interim
requirements.

The
probability
of
missing
an
environmental
problem
becomes
unacceptably
high
when
the
person
conducting
the
inquiry
on
the
ground
does
not
have
the
experience
or
judgment
of
an
environmental
professional.
The
consequences
are
serious.

It
is
worth
noting
that
EPA
itself
recognizes
the
importance
of
having
an
environmental
professional
actually
conduct
critical
elements
of
the
inquiry
in
the
preamble
to
the
proposed
AAI
rule.
"
EPA
believes
that
the
professional
judgment
of
an
individual
meeting
the
proposed
definition
of
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"
(
67
Federal
Register
52565).
EPA
recognizes
and
recommends
that
an
environmental
professional
conduct
this
portion
of
the
inquiry,
but
does
not
require
it.
EPA
must
require
it
as
provided
in
the
Brownfields
law.

Response:
The
final
rule
assures
that
a
highly­
qualified
environmental
professional
manages
the
conduct
of
all
of
the
required
all
appropriate
inquiries
activities
by:

1.
Establishing
a
definition
of
environmental
professional
that
sets
stringent
qualifications
for
the
individual
responsible
for
all
activities
conducted
during
the
all
appropriate
inquiries
investigation
(
see
§
312.10).
These
qualifications
are
significantly
more
stringent
than
the
requirements
of
the
ASTM
E1527­
97
standard
and
will
serve
to
raise
the
standard
of
quality
of
environmental
site
assessments.
2.
Requiring
that
the
environmental
professional,
after
reviewing
the
results
of
all
inquiries
and
data
searches
required
by
the
regulation,
provide
a
written
report
of
findings
that
includes
an
opinion
of
the
environmental
conditions
of
the
property
and
documents
352
all
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
property
(
see
§
312.21(
c)).
3.
Requiring
that
the
environmental
professional
sign
the
written
report
that
documents
all
results
of
the
all
appropriate
inquiries
investigation.
When
signing
the
report,
the
environmental
professional
must
include
two
statements
with
the
signature
block.
One
must
state
that
the
person
signing
the
report
meets
the
required
qualifications
of
an
environmental
professional
and
the
other
must
state
that
the
all
appropriate
inquiries
investigation
was
completed
in
compliance
with
the
final
regulations
(
see
§
312.21(
d)).

The
final
rule
retains
the
allowance
for
individuals
not
meeting
the
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.
EPA
determined
that
some
activities
required
by
the
final
rule
may
be
conducted
effectively
and
efficiently
by
individuals
who
may
not
necessarily
meet
the
definition
of
environmental
professional.
For
example,
research
regarding
past
owners
of
a
property
may
best
be
performed
by
a
title
search
expert
or
an
attorney.
Data
base
searches
to
determine
past
uses
of
a
property
may
be
conducted
by
a
research
assistant
or
a
librarian.

This
provision
of
the
final
rule
allows
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
definition
of
an
environmental
professional
and
reviews
the
results
and
conclusions
of
the
inquiries
and
signs
the
final
report.
All
activities
conducted
during
the
course
of
the
inquiries
must
be
conducted
under
the
supervision
or
responsible
charge
of
an
environmental
professional.
The
final
rule
requires
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
§
312.10.

In
addition
to
establishing
who
must
oversee
the
conduct
of
the
all
appropriate
inquiries
activities
and
prescribing
the
types
of
activities
that
must
be
conducted
to
address
each
of
the
statutory
criteria,
the
final
rule
establishes
clear
objectives
for
the
inquiries
and
a
set
of
performance
factors
that
must
be
met
in
carrying
out
the
requirements
of
each
criteria.
The
objectives
clearly
establish
the
types
of
information
that
must
be
collected
during
the
conduct
of
the
inquiries
(
see
§
312.20(
d)).
The
performance
factors
establish
quality
parameters
that
must
be
met
when
collecting
the
information
and
undertaking
the
activities
required
by
the
statutory
criteria
(
see
§
312.20(
e)).
The
objectives
and
performance
factors
must
be
followed
when
conducting
the
activities
required
to
meet
each
criterion.
They
serve
to
guide
the
conduct
of
all
activities
required
by
the
statutory
criteria
and
ensure
that
all
activities
are
conducted
with
clear
objectives
and
to
a
standard
of
high
quality.
353
Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
3
Excerpt
Text:
We
understand
that
professionals
who
do
not
meet
the
proposed
definition
can
still
perform
AAIs
under
the
supervision
of
those
who
do
meet
the
definition;
however,
we
contend
that
we
will
derive
neither
benefit
nor
improvement
in
thoroughness
and
accuracy
to
the
AAI
process.
Additionally,
organizations
will
incur
additional
costs
due
to
the
need
to
review
an
individual's
work
and
AAIs
often
have
short
deadlines
that
could
easily
be
impacted
due
to
the
unavailability
of
a
"
qualified"
reviewer.

Response:
Please
see
response
to
comment
number
0140,
excerpt
3.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
15
Excerpt
Text:
Non
­
EP
Supervised
Work
under
EP
a)
Page
#
52555
b)
View:
The
Goal
of
AAI
is
to
increase
quality
of
the
Phase
I,
not
to
shortcut
the
process.
All
non­
clerical
portions
of
the
Phase
I
should
be
conducted
by
the
EP.

c)
Assumptions:
The
EP
is
narrowly
defined
within
this
proposal
to
qualify
individuals
to
conduct
Phase
I
reports.
If
the
purchaser
needs
to
rely
on
the
Phase
I
to
prove
in
court
they
conducted
AAI,
the
report
and
non­
clerical
sections
should
be
performed
by
an
EP.
Anything
less
will
not
assure
the
EP
has
complete
knowledge
and
involvement
in
the
process,
and
would
negate
the
relevance
of
their
signature.

d)
Burden:
Having
EP's
conduct
the
non­
clerical
aspects
of
the
Phase
I
will
increase
quality
and
cost.

Response:
Please
see
response
to
comment
number
0140,
excerpt
3.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
17
Excerpt
Text:
All
Non­
clerical
tasks
to
be
done
by
EP.
354
a)
Page
#
52571
b)
View:
The
Goal
of
AAI
is
to
increase
quality
of
the
Phase
I,
not
to
shortcut
the
process.
All
non­
clerical
portions
of
the
Phase
I
should
be
conducted
by
the
EP.

c)
Assumptions:
The
EP
is
narrowly
defined
within
this
proposal
to
qualify
individuals
to
conduct
Phase
I
reports.
If
the
purchaser
needs
to
rely
on
the
Phase
I
to
prove
in
court
they
conducted
AAI,
the
report
and
non­
clerical
sections
should
be
performed
by
an
EP.
Anything
less
will
not
assure
the
EP
has
complete
knowledge
and
involvement
in
the
process,
and
would
negate
the
relevance
of
their
signature.

d)
Burden:
Having
EP's
conduct
the
non­
clerical
aspects
of
the
Phase
I
will
increase
quality
and
cost.

Response:
Please
see
response
to
comment
number
0140,
excerpt
3.

Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
2
Excerpt
Text:
­­
The
Proposed
AAI
Rule
Allows
Unqualified
Personnel
To
Conduct
Key
Elements
Of
The
Environmental
Inquiry
Under
Section
312.21
of
the
proposed
AAI
rules,
non­
professionals
can
conduct
the
environmental
inquiry
at
a
site,
including
site
inspections
and
interviews,
as
long
as
they
are
under
the
charge
or
supervision
of
an
environmental
professional.
Section
223
of
the
Brownfields
Law
expressly
requires
that
an
Environmental
Professional
conduct
the
inquiry,
and
the
interim
97
ASTM
Standard
makes
clear
there
are
many
instances
where
there
is
no
substitute
for
an
environmental
professional's
experience
and
judgment
and
it
expressly
requires
the
environmental
professional
to
conduct
the
site
inspection
and
the
interviews.

Mere
oversight
of
unqualified
personnel
provides
very
little
protection
when
only
a
trained
eye
is
likely
to
find
environmental
problems
during
a
visual
inspection.
Interviews
are
also
of
limited
value
when
the
person
conducting
the
interview
does
not
have
the
experience
to
know
what
follow­
up
questions
to
ask.
When
key
portions
of
the
inquiry
are
not
conducted
by
qualified
personnel,
the
likelihood
of
missing
serious
environmental
threats
rises
dramatically.
The
proposed
AAI
rule
allows
this
result.

Response:
Please
see
response
to
comment
number
0332,
excerpt
4.
355
Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
4
Excerpt
Text:
­­
The
Proposed
AAI
Rule
Allows
Unqualified
Personnel
To
Conduct
Interviews
And
Eliminates
Specific
Requirements
in
the
Interim
97
ASTM
Standard
That
Ensure
A
Consistent
Standard
Is
Maintained
For
Conducting
And
Documenting
Interviews
Sections
312.21
(
results
of
an
inquiry
by
an
environmental
professional)
and
312.23
(
interviews)
of
the
proposed
AAI
rule
allow
unqualified
personnel
to
conduct
interviews.
As
discussed
above,
inexperienced
interviewers
are
far
less
likely
to
ask
the
appropriate
follow­
up
questions
and
identify
environmental
conditions
of
concern.
Given
the
dynamic
nature
of
an
interview
and
the
technical
expertise
required
in
this
area,
"
supervision"
does
not
mean
a
great
deal
if
the
supervisor
is
not
present
for
and
does
not
participate
in
the
interviews.

Response:
The
final
rule
assures
that
a
highly­
qualified
environmental
professional
manages
the
conduct
of
all
of
the
required
all
appropriate
inquiries
activities
by:

1.
Establishing
a
definition
of
environmental
professional
that
sets
stringent
qualifications
for
the
individual
responsible
for
all
activities
conducted
during
the
all
appropriate
inquiries
investigation
(
see
§
312.10).
These
qualifications
are
significantly
more
stringent
than
the
requirements
of
the
ASTM
E1527­
97
standard
and
will
serve
to
raise
the
standard
of
quality
of
environmental
site
assessments.
2.
Requiring
that
the
environmental
professional,
after
reviewing
the
results
of
all
inquiries
and
data
searches
required
by
the
regulation,
provide
a
written
report
of
findings
that
includes
an
opinion
of
the
environmental
conditions
of
the
property
and
documents
all
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
property
(
see
§
312.21(
c)).
3.
Requiring
that
the
environmental
professional
sign
the
written
report
that
documents
all
results
of
the
all
appropriate
inquiries
investigation.
When
signing
the
report,
the
environmental
professional
must
include
two
statements
with
the
signature
block.
One
must
state
that
the
person
signing
the
report
meets
the
required
qualifications
of
an
environmental
professional
and
the
other
must
state
that
the
all
appropriate
inquiries
investigation
was
completed
in
compliance
with
the
final
regulations
(
see
§
312.21(
d)).

The
final
rule
retains
the
allowance
for
individuals
not
meeting
the
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.
Interviews
are
conducted
for
the
purpose
of
attaining
information
on
present
and
past
uses
and
ownerships
of
the
property.
Many
types
of
individuals
may
be
skilled
interviewers
and
may
be
able
to
obtain
this
type
of
information
from
property
owners.
EPA
maintains
that
it
is
important
that
a
person
meeting
the
qualifications
of
an
environmental
professional
review
the
results
of
all
activities
356
conducted
during
the
all
appropriate
inquiries
investigation
and
render
an
opinion
with
regard
to
the
potential
environmental
conditions
of
a
property
based
upon
all
results.
However,
EPA
maintains
that
it
is
not
essential
that
the
environmental
professional
conduct
every
activity.
In
fact,
some
activities
may
best
be
performed
by
persons
with
specific
skills
not
held
by
the
environmental
professional.
357
2.3.5
The
Rule
Should
Provide
Examples
of
Relevant
Experience
Commenter
Organization
Name:
Leech
Lake
Ojibwe
Comment
Number:
0125
Excerpt
Number:
2
Excerpt
Text:
Comment
#
2:
The
Time
Period
during
Which
"
Relevant
Experience"
Must
Have
Been
Obtained
is
Unclear
and
Should
Be
Clarified.

The
definition
of
an
EP
under
the
proposed
rule
includes
a
reference
to
"
relevant
experience."
While
EPA
defines
this
term
in
§
312.10(
b),
it
leaves
unclear
the
time
period
during
which
relevant
experience
must
have
been
accumulated.
For
example,
must
an
individual
have
acquired
the
relevant
experience
­
whether
for
three,
five
or
ten
years
­
in
the
years
immediately
before
the
promulgation
of
the
final
rule?
If
not,
is
there
a
maximum
period
during
which
such
experience
must
have
been
obtained?

By
way
of
example,
if
a
person
has
an
undergraduate
degree
in
geology
and
five
full­
time
years
of
relevant
experience,
but
acquired
that
experience
15
years
earlier
without
having
performed
any
subsequent
work
in
the
field,
would
that
person
still
qualify
as
an
EP?
The
Band
is
concerned
that
while
an
individual
might
qualify
as
an
EP
under
the
letter
of
the
rule
in
this
scenario,
he
or
she
may
lack
an
understanding
of
recent
developments
in
the
field
or
of
the
latest
technological
advancements
during
the
intervening
time
period.
Such
a
deficiency
has
the
potential
of
putting
Tribes,
including
the
Band,
and
other
parties
at
risk.

Response:
To
qualify
as
an
environmental
professional
for
the
purpose
of
the
final
rule
on
all
appropriate
inquiries,
individuals
must
simply
meet
the
qualifications
of
the
definition
of
an
environmental
professional.
The
final
rule
does
not
include
restrictions
on
when
a
person
accumulates
the
required
years
of
full­
time
relevant
experience.
However,
the
final
rule
does
require
that
environmental
professionals
remain
current
in
their
field
of
expertise.
Also,
the
final
rule
requires
that
environmental
professionals
"
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(
e)
and
(
f)."
358
2.3.6
Revise
the
Proposed
Rule
to
Allow
Individuals
to
Accumulate
the
Required
Ten
Years
of
Experience
after
the
Promulgation
of
the
Rule
Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
2
Excerpt
Text:
Also,
DEQ
appreciates
EPA's
willingness
to
"
grandfather"
in
as
environmental
professionals
people
without
a
science
degree
and
a
number
of
years
of
experience
as
of
the
date
the
rule
is
promulgated.
However,
DEQ
believes
this
option
should
also
be
considered
for
people
that
acquire
a
number
of
years
of
experience
past
the
promulgation
date.
If
a
person
has
attended
environmental
trainings
and
educational
courses
and
has
enough
experience
to
successfully
conduct
AAI
investigations,
it
should
not
be
important
what
their
degree
is
in.
In
addition,
a
person
may
work
under
an
environmental
professional
as
a
team
member
being
trained
and
educated
about
AAI's
for
several
years
but
may
never
be
considered
an
"
Environmental
Professional"
because
he
or
she
does
not
have
the
appropriate
degree.
Having
a
degree
in
something
other
than
a
science
field
may
be
beneficial
to
conducting
AAI
investigations
because
AAI
investigations
are
primarily
research
based.
During
an
AAI
investigation,
design
work
and
sampling
are
typically
not
involved.
DEQ
believes
that
a
bachelor's
degree
with
five
years
of
relevant
full
time
experience
is
more
appropriate
as
part
of
the
definition
of
an
"
Environmental
Professional"
for
a
person
to
be
"
grandfathered."
Also,
the
person
should
not
need
to
have
the
five
years
of
experience
as
of
the
date
of
the
rule.
The
proposed
AAI
rule
excludes
from
future
consideration
people
who
have
the
knowledge
and
experience
to
conduct
AAI
investigations
but
do
not
have
a
degree
in
the
sciences.
We
ask
EPA
to
reconsider
the
number
of
years
of
experience
required
to
perform
AAI
without
a
science
degree
and
to
allow
people
who
meet
the
requirements
after
rule
promulgation
to
be
considered
environmental
professionals.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."
359
The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.

Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
5
Excerpt
Text:
The
best
existing
training
for
environmental
professionals
is
relevant
on­
the­
job
experience,
building
on
a
solid
academic
background.
312.10
(
B)(
2)(
IV)
would
be
strengthened
by
removing
the
phrase,
as
of
the
date
of
the
promulgation
of
this
rule,
and
simply
read,
have
a
bachelor
or
higher
degree
from
an
accredited
institution
of
higher
education
and
the
equivalent
of
ten
years
with
a
full­
time
relevant
experience.

The
value
of
a
degree
in
any
field,
plus
a
significant
amount
of
on­
the­
job
experience
will
not
expire
as
of
the
date
of
this
rule.
A
potential
environmental
professional
with
nine
years
of
experience,
as
of
that
date,
should
have
the
chance
to
gain
the
status
when
the
ten
years
have
been
achieved.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
360
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
all
appropriate
inquiries.
361
2.3.7
Ramifications/
Penalties
for
an
Unqualified
Non­
EP
Signing
an
AAI
Statement
Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
8
Excerpt
Text:
8
Steve
Myers
EP
Penalties
if
Wrong/
Unqualified
312.21(
d),
312.24(
b),
312.26(
d),
and
52561­
62
What
is
the
penalty
for
an
environmental
professional
for
signing
such
a
statement
if
they
are
not
qualified
and
who
will
determine
if
the
environmental
professional's
judgment
was
appropriate?
If,
in
the
end,
the
qualification
standards
of
an
environmental
professional
and
an
owner's
ability
to
claim
an
'
Innocent
Landowner'
defense
will
be
ruled
on
by
the
courts,
why
set
narrow
arbitrary
standards
for
who
may
be
an
environmental
professional
in
the
first
place?

Response:
EPA
determined,
through
the
discussions
of
the
negotiated
rulemaking
committee
during
the
development
of
the
proposed
rule
and
through
an
analysis
of
public
comments
received
in
response
to
the
proposed
rule,
that
the
final
rule
should
include
a
definition
of
environmental
professional.
The
statute
requires
that
all
appropriate
inquiries
include
an
inquiry
conducted
by
an
environmental
professional.
EPA
determined
that
to
effectively
implement
the
statute
and
define
the
intent
of
the
law
it
is
essential
to
define
who
should
oversee
the
conduct
of
the
inquiry.

The
marketplace
and
ultimately
the
courts
will
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
Ultimately,
the
penalty
for
undertaking
an
all
appropriate
inquiries
investigation
that
is
not
overseen
or
managed
by
an
individual
who
qualifies
as
an
environmental
professional
is
disqualifying
the
owner
or
grantee
from
receiving
liability
protection
under
the
law.
This
is
the
ultimate
incentive
for
property
owners
to
be
active
participants
in
the
process
and
to
seek
out
the
best,
most
qualified
individuals
to
conduct
all
appropriate
inquiries
assessments.

See
also
the
response
to
comment
number
0353,
excerpt
4.

Commenter
Organization
Name:
IPEP
Comment
Number:
0266
Excerpt
Number:
6
Excerpt
Text:
Personal
Liability
of
Environmental
Professionals
Another
issue
of
concern
expressed
in
EPA's
October
2003
NODA,
which
is
not
addressed
in
the
subject
proposed
CERCLA
regulation,
is
the
personal
liability
of
those
362
who
would
be
allowed
to
perform
AAIs
for
real
property.
Although
state
(
and
territorial)
licensing
boards
have
the
authority
to
investigate
complaints
of
negligence
or
incompetence,
and
may
impose
fines
or
take
other
disciplinary
actions
against
those
determined
to
have
improperly
practiced
as
a
professional
engineer
or
professional
geologist,
such
disciplinary
action
is
rarely
demanded
or
taken
against
licensed
professional
engineers,
professional
geologists,
etc.
This
is
because
it
is
difficult
to
prove
that
an
individual
is
negligent
or
incompetent
to
practice
in
the
field
of
his/
her
licensure.
It
is
much
more
frequent
that
other
remedies
are
embraced
to
address
alleged
negligence
or
incompetence.
Both
individuals
and
organizations
that
perceive
they
have
been
so
compromised
typically
enforce
contractual
terms
and
conditions
first,
where
financial
penalties
carry
enormous
weight
with
licensed
individuals.
If
these
measures
fail,
relief
and
damages
may
be
sought
through
arbitration,
a
practice
that
is
being
used
ever
more
frequently.
If
such
matters
still
cannot
be
resolved,
civil
or
criminal
legal
action
can
be
taken
against
an
individual
practitioner
and/
or
the
organization
that
employs
him/
her.
And
such
claims
typically
seek
to
recover
damages
available
from
insurance
carriers
who
provide
professional
liability
insurance
for
licensed
practitioners
and
their
employers.

However,
it
is
not
the
threat
of
action
by
a
state
licensing
board
or
potential
civil
or
criminal
legal
actions
that
empowers
the
professional
licensure
system
to
function
effectively
across
the
country.
Professional
engineers,
professional
geologists,
licensed
surveyors,
licensed
medical
practitioners,
etc.
are
all
required
to
abide
by
a
code
of
ethical
behavior
that
places
public
safety,
health,
and
welfare
above
their
individual
or
employers'
interests,
and
the
vast
majority
of
licensed
professionals
recognize
the
seriousness
of
maintaining
their
personal
credibility
and
integrity
in
the
marketplace
of
their
profession.
They
understand
that
any
action
they
take
that
may
cast
doubt
on
their
professional
competence
or
integrity
threatens
their
professional
reputation
and
financial
security
or
ability
to
practice
their
chosen
profession.

Similarly,
those
individuals
who
have
earned
credentials
from
certification
programs
that
are
compliant
with
ASTM
E1929­
98
for
environmental
professionals
are
required
to
abide
by
code
of
ethics
that
are
essentially
equivalent
to
those
established
by
state
licensing
boards.
Furthermore,
ASTM
E1929­
98
mandates
that
for
a
certification
program
to
maintain
its
accreditation,
it
must
include
a
recertification
component.
This
component
must
require
that
for
certificants
to
maintain
their
credential,
they
must
engage
in
continuing
professional
development
activities
suitable
to
their
profession.
Such
a
mandate
has
been
in
place
for
only
a
limited
number
of
state
licensure
programs
in
the
past
for
professional
engineers,
but
most
states
are
expected
to
have
incorporated
this
requirement
for
professional
license
renewal
by
the
end
of
this
decade.
Thus,
the
perception
that
threat
of
state
licensure
board
actions
has
significant
impact
as
a
policing
mechanism
to
discourage
negligence
or
incompetence
is
a
less
than
compelling
basis
for
limiting
the
definition
of
Environmental
Professional
to
the
definition
in
§
312.10(
b)(
1)
of
the
proposed
rule.

Response:
The
marketplace
and
ultimately
the
courts
will
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
363
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
Ultimately,
the
penalty
for
undertaking
an
all
appropriate
inquiries
investigation
that
is
not
overseen
or
managed
by
an
individual
who
qualifies
as
an
environmental
professional
is
disqualifying
the
owner
or
grantee
from
receiving
liability
protection
under
the
law.
This
is
the
ultimate
incentive
for
property
owners
to
be
active
participants
in
the
process
and
to
seek
out
the
best,
most
qualified
individuals
to
conduct
all
appropriate
inquiries
assessments.

The
final
rule
does
not
recognize
or
reference
any
private
party
professional
certification
standards.
Such
an
approach
would
require
that
EPA
review
the
certification
requirements
of
individual
organizations
to
determine
whether
or
not
each
organization's
certification
requirements
meet
or
exceed
the
regulatory
qualifications
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,
we
conclude
that
such
an
undertaking
is
not
practicable.
EPA
does
not
have
the
necessary
resources
to
review
the
procedures
of
each
private
certification
organization
and
review
and
approve
each
organization's
certification
qualifications.
Therefore,
the
final
rule
includes
within
the
regulatory
definition
of
an
environmental
professional,
general
performance­
based
standards
or
qualifications
for
determining
who
may
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
conducting
all
appropriate
inquiries.
These
standards
include
particular
education
and
experience
qualifications.
The
final
rule
does
not
recognize,
or
reference,
any
private
organization's
certification
program
within
the
context
of
the
regulatory
language.
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
today's
final
regulation
will
meet
the
definition
of
an
environmental
professional
for
the
purposes
of
this
regulation.

Commenter
Organization
Name:
OSBGE
Comment
Number:
0291
Excerpt
Number:
3
Excerpt
Text:
EPA's
proposed
definition
of
an
"
environmental
professional"
is
very
broad
and
may
result
in
sending
confusing
messages
to
unregistered
"
environmental
professionals"
and
to
the
public
in
general,
who
may
unknowingly
hire
unregistered
"
environmental
professionals"
to
in
fact
conduct
geologic
work.
As
such,
the
public
may
not
be
properly
protected
from
the
consequences
of
geologic
work
performed
by
non­
qualified,
unregistered
"
environmental
professionals".
EPA
needs
to
clearly
articulate
that
"
environmental
professionals"
must
comply
with
State
laws
before
seeking
to
conduct
work
under
the
CERCLA
provisions.

Response:
The
commenter's
concern
is
addressed
in
the
final
rule.
The
final
rule
states,
"
The
definition
of
environmental
professional
provided
above
does
not
preempt
state
364
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)."

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
10
Excerpt
Text:
1)
What
will
the
penalty
be
for
someone
who
signs
an
AAI
report
if
he
or
she
does
not
meet
the
definition
of
an
environmental
professional
(
EP)?
Who
will
determine
whether
the
EP's
judgment
was
appropriate?
Will
EPs
be
liable
for
any
errors
or
omissions
in
information
from
third
party
AAI
reports
if
that
information
meets
the
proposed
requirements
for
using
previous
information?

Response:
The
marketplace
and
ultimately
the
courts
will
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
Ultimately,
the
penalty
for
undertaking
an
all
appropriate
inquiries
investigation
that
is
not
overseen
or
managed
by
an
individual
who
qualifies
as
an
environmental
professional
is
disqualifying
the
owner
or
grantee
from
receiving
liability
protection
under
the
law.
This
is
the
ultimate
incentive
for
property
owners
to
be
active
participants
in
the
process
and
to
seek
out
the
best,
most
qualified
individuals
to
conduct
all
appropriate
inquiries
assessments.

The
Agency
does
not
want
to
speculate
on
liability
based
upon
contractual
obligations
between
parties.
The
parties
are
free
to
negotiate
these
issues
as
they
deem
appropriate.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
18
Excerpt
Text:
­
Environmental
Professional:
delete
all
after
paragraph
(
1).
It
would
be
nice
if
there
was
a
real
penalty
for
violators.

Response:
Please
see
response
to
comment
number
0336
(
excerpt
1)
and
comment
number
0334
(
excerpt
10).
365
2.3.8
To
Ensure
that
EPs
are
Qualified,
a
National
Test
and/
or
Training
Should
Be
Established
Commenter
Organization
Name:
Gaugler,
Earl
Comment
Number:
0327
Excerpt
Number:
3
Excerpt
Text:
I
propose
that
the
best
way
to
resolve
the
issue
of
qualification
is
to
identify
the
specific
skills
and
knowledge
areas
required
of
an
assessor,
and
to
develop
an
appropriate
verification
(
registration)
system
that
is
fair
to
all
current
and
future
environmental
assessors
/
inspectors.
There
are
many
professionals,
with
diverse
backgrounds
and
varied
employment
histories,
who
truly
qualify
for
this
type
of
work.
A
formal
qualification,
if
eventually
mandated,
should
be
rated
like
a
job
application,
e.
g.
provision
for
an
appropriate
evaluation,
in
lieu
of
an
academic
degree
and/
or
license,
which
demonstrates
the
required
background
necessary
for
the
position.

Response:
EPA
agrees
with
the
commenter's
statement
that
many
professionals
with
diverse
backgrounds
and
varied
employment
histories
may
qualify
as
environmental
professionals
for
the
purposes
of
overseeing
all
appropriate
inquiries
investigations.
Given
the
potential
diversity
in
qualifications,
EPA
is
finalizing
general
education
and
experience
qualifications
for
environmental
professionals,
rather
than
specifying
specific
skills.
The
final
rule
does
not
include
a
registration
or
verification
process.

The
final
rule
requires
that
an
environmental
professional
sign
the
written
report
that
documents
all
results
of
the
all
appropriate
inquiries
investigation.
When
signing
the
report,
the
environmental
professional
must
include
two
statements
with
the
signature
block.
One
must
state
that
the
person
signing
the
report
meets
the
required
qualifications
of
an
environmental
professional
and
the
other
must
state
that
the
all
appropriate
inquiries
investigation
was
completed
in
compliance
with
the
final
regulations
(
see
§
312.21(
d)).

The
marketplace
and
ultimately
the
courts
will
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
Ultimately,
the
penalty
for
undertaking
an
all
appropriate
inquiries
investigation
that
is
not
overseen
or
managed
by
an
individual
who
qualifies
as
an
environmental
professional
is
disqualifying
the
owner
or
grantee
from
receiving
liability
protection
under
the
law.
This
is
the
ultimate
incentive
for
property
owners
to
be
active
participants
in
the
process
and
to
seek
out
the
best,
most
qualified
individuals
to
conduct
all
appropriate
inquiries
assessments.

Commenter
Organization
Name:
DWR
Consultants
Comment
Number:
0349
Excerpt
Number:
1
366
Other
Sections:
NEW
­
2.1.1
­
Support
of
the
proposed
minimum
requirements
Excerpt
Text:
I
fully
support
the
enhancement
for
qualificaitons
of
Environmental
Professionals.
However,
I
think
some
sort
of
national
test
should
be
integrated
into
the
process
to
ensure
the
"
professionals"
are
qualified.

Response:
The
final
rule
requires
that
an
environmental
professional
sign
the
written
report
that
documents
all
results
of
the
all
appropriate
inquiries
investigation.
When
signing
the
report,
the
environmental
professional
must
include
two
statements
with
the
signature
block.
One
must
state
that
the
person
signing
the
report
meets
the
required
qualifications
of
an
environmental
professional
and
the
other
must
state
that
the
all
appropriate
inquiries
investigation
was
completed
in
compliance
with
the
final
regulations
(
see
§
312.21(
d)).

The
marketplace
and
ultimately
the
courts
will
determine
whether
this
criterion
is
sufficiently
satisfied,
should
the
credentials
of
an
environmental
professional
be
challenged
or
otherwise
become
an
issue
in
regard
to
a
property
owner's
CERCLA
liability
status.
Ultimately,
the
penalty
for
undertaking
an
all
appropriate
inquiries
investigation
that
is
not
overseen
or
managed
by
an
individual
who
qualifies
as
an
environmental
professional
is
disqualifying
the
owner
or
grantee
from
receiving
liability
protection
under
the
law.
This
is
the
ultimate
incentive
for
property
owners
to
be
active
participants
in
the
process
and
to
seek
out
the
best,
most
qualified
individuals
to
conduct
all
appropriate
inquiries
assessments.

Commenter
Organization
Name:
EAA
Comment
Number:
0366
Excerpt
Number:
2
Excerpt
Text:
The
EAA
objects
to
the
minimum
requirements
set
forth
herein
as
they
apply
to
the
environmental
professional.
While
we
feel
a
science
degree
and
professional
license
as
a
geologist
or
engineer
are
valuable,
they
may
or
may
not
always
fit
the
skill
set
needed
to
properly
complete
a
Phase
I
ESA.
Experience
and
skill
are
gained
through
proper
specialized
training
time
spent
actually
completing
the
projects.
As
most
EAA
members
are
from
"
one­
man
shops",
we
are
confident
that
these
individuals
have,
many
times,
been
through
the
entire
process
of
the
project
in
a
"
hands
on"
capacity.
This
would
include
all
the
marketing,
project
development,
technical
aspects
of
the
project,
report
writing,
and
liability
issues,
to
name
a
few.
To
offer
a
proposed
solution
to
this
objection,
it
is
the
opinion
of
the
EAA
membership
that,
in
lieu
of
requirements
based
strictly
on
education
and
background
in
non­
specific
science,
that
training
designed
to
directly
address
the
regulation
and
requirements
be
conducted
by
EPA­
approved
providers.
This
could
be
accomplished
in
much
the
same
way
as
currently
implemented
in
the
EPA
asbestos
program.
The
goal
of
this
direct,
intense,
and
well­
designed
training
would
simply
be
the
allowance
of
experienced
qualified
individuals
who
have
been
providing
this
service
for
years
to
be
able
to
continue
their
enterprise
without
being
unfairly
and
instantly
banned
from
their
vocation.
367
Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
Given
the
variety
of
property
types
and
uses
that
an
environmental
professional
may
encounter
when
conducting
all
appropriate
inquiries
investigations,
EPA
has
determined
that
a
minimum
of
three
years
of
relevant
full­
time
experience
is
essential
to
ensuring
a
high
level
of
expertise
on
the
part
of
environmental
professionals.

At
this
time,
EPA
does
not
have
the
resources
to
establish
a
national
training
and
certification
program
for
environmental
professionals.
Training
on
the
essential
elements
of
conducting
environmental
site
assessments
may
best
be
achieved
by
meeting
the
educational
and
experience
qualifications
including
in
the
definition
of
environmental
professional
in
the
final
rule.
Other
training
opportunities
may
be
available
from
private
organizations.

Commenter
Organization
Name:
Dean,
Frank
Comment
Number:
0411
Excerpt
Number:
2
Excerpt
Text:
Second,
in
Section
312.10
the
requirement
that
the
Environmental
Professional
must
have
a
degree
in
geology,
engineering
or
hard
science
will
put
a
number
of
current
providers
out
of
business,
as
many
of
us
do
not
have
these
science
related
degrees.
If
one
looks
at
368
the
skill
sets
needed
to
do
a
Phase
I
Environmental
Audit,
you
will
find
that
"
hard
science"
is
not
needed
at
this
level,
but
is
most
certainly
required
in
many
of
the
Phase
II
testing
protocols.
As
a
business
owner,
I
can
hire
these
specialists
if
and
when
needed
to
handle
the
projects
requiring
these
skill­
sets.

I
would
much
prefer
to
see
a
well
designed
training
program
developed
to
mirror
the
actual
requirements
of
the
Phase
I,
rather
than
a
non­
related
science
or
engineering
degree
as
the
qualifying
criterion
for
this
work.
This
training
program
can
be
modeled
after
the
current
EPA
asbestos
program
with
accredited
course
providers
delivering
the
approved
training.
This
way,
those
with
the
proper
knowledge
of
the
regulations
and
procedures
can
do
the
work
and
one
is
not
limited
by
arbitrary
education
requirements
that
could
deprive
one
of
his
lively
hood.
And,
you
as
a
regulator
would
have
more
confidence
that
the
people
in
the
field
actually
know
what
they
are
supposed
to
be
doing.
I
am
always
a
promoter
of
demonstrated
competence
over
arbitrary
requirements.

Response:
Based
upon
public
comments
received
in
response
to
the
proposed
rule
on
the
issue
of
qualifications
for
the
environmental
professional,
the
Agency
made
a
few
modifications
to
the
proposed
definition
of
environmental
professional.
Many
commenters
pointed
out
that
the
proposed
definition
placed
too
much
emphasis
on
educational
requirements
and
did
not
allow
persons
with
a
significant
number
of
years
of
experience
in
performing
environmental
assessments
to
qualify
as
environmental
professionals,
for
the
purposes
of
the
all
appropriate
inquiries
rule,
if
they
do
not
have
a
college
degree
in
science
or
engineering.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
In
addition,
today's
final
rule
does
not
include
the
proposed
"
grandfather
clause."

The
Agency
has
made
every
effort
to
take
public
comment
into
consideration
while
promulgating
the
final
all
appropriate
inquiries
rule.
To
this
end
the
above
mentioned
changes
have
been
made
to
the
standards
set
out
for
environmental
professionals.
It
is
the
opinion
of
the
Agency
that
the
modified
standards
will
establish
sufficiently
high
standards
for
environmental
professionals,
ensuring
environmental
responsibility
and
health
protection.
Additionally,
we
believe
that
the
modified
standards
are
also
superior
in
that
they
are
more
fair
than
the
proposed
standards.
We
hope
the
balance
struck
on
this
issue
will
result
in
both
environmental
protection
and
a
fair
gauge
of
an
environmental
professional's
ability
to
carry
out
an
all
appropriate
inquiries.
Given
the
variety
of
property
types
and
uses
that
an
environmental
professional
may
encounter
when
conducting
all
appropriate
inquiries
investigations,
EPA
has
determined
that
a
minimum
of
three
years
of
relevant
full­
time
experience
is
essential
to
ensuring
a
high
level
of
expertise
on
the
part
of
environmental
professionals.

At
this
time,
EPA
does
not
have
the
resources
to
establish
a
national
training
and
369
certification
program
for
environmental
professionals.
Training
on
the
essential
elements
of
conducting
environmental
site
assessments
may
best
be
achieved
by
meeting
the
educational
and
experience
qualifications
including
in
the
definition
of
environmental
professional
in
the
final
rule.
Other
training
opportunities
may
be
available
from
private
organizations.
370
2.3.9
The
Rule
Should
Specifically
Address
Subsurface
Investigations
as
a
Separate
Component
of
AAI
Commenter
Organization
Name:
Ferguson,
Jim
Comment
Number:
0203
Excerpt
Number:
2
Excerpt
Text:
However,
the
proposed
definitions
should
be
revised
by
adding
"
geologist"
in
addition
to
that
of
"
Environmental
Professional"
(
EP)
and
defining
a
procedure
for
that
specific
component
of
AAI
dealing
with
impact
from
adjoining
properties
whereby
that
component
is
done
only
by
a
"
geologist".

EPA's
rationale
for
its
broad
definition
of
EP,
while
an
improvement,
appears
to
be
based
on
the
recommendations
of
a
Negotiated
Rulemaking
Committee
(
NRC)
composed
of
individuals
from
a
variety
of
backgrounds
but
lacking
members
of
the
geology
profession
such
as
The
American
Institute
of
Professional
Geologists
(
AIPG).
EPA
claims
to
have
taken
a
"
middle­
of­
the­
road"
approach
in
which
the
technical
quality
for
Phase
I's
is
ensured
while
at
the
same
time
"
grandparenting"
those
individuals
with
the
required
years
of
experience
in
the
practice.
This
approach
contains
a
contradiction.
Phase
I's
have
not
been
technically
rigorous
by
tradition.
Many
have
been
done
only
as
a
formality
with
very
little
concern
over
technical
substance
by
either
the
buyer
or
the
seller.
Thus,
a
scientist
with
any
common
sense
has
been
able
to
walk
the
site,
access
the
ASTMrequired
databases,
conduct
interviews
and
draw
conclusions.
In
fact,
those
individuals
and
firms
who
have
not
properly
addressed
the
issue
of
adjoining
properties
have
been
retained
solely
on
the
basis
of
price
by
buyers
and
sellers
ignorant
of
the
importance
of
adjoining
properties.
In
many
instances,
serious
oversights
have
occurred
based
on
improper
or
no
consideration
of
the
impact
of
contamination
migrating
from
adjacent
sites
to
the
subject
site.
This
decision
requires
specialized
knowledge
and
appropriate
interpretation
of
the
subsurface
conditions
and
hydrogeologic
properties
of
the
area.
These
hidden
properties
control
the
rate
and
direction
of
groundwater
flow,
contaminant
attenuation,
groundwater
vulnerability
and
the
radius
of
concern.
Man­
made
impacts
from
such
as
underground
utilities
and
pumping
wells
must
also
be
properly
considered.
EPA
included
recognition
of
this
specialized
discipline
when
it
defined
"
qualified
groundwater
scientist"
and
specified
his/
her
roles
in
the
Subtitle
D
Municipal
Solid
Waste
Landfill
Regulations.
AAI
is
no
different.

Many
(~
28)
States
have
boards
of
registration
for
geologists
with
the
responsibility
to
restrict
the
making
of
these
decisions
to
qualified,
duly
registered
professional
geologists.
This
is
but
one
component
of
the
many
issues
in
AAI,
but
it
is
a
very
important
one
and
it
requires
specific
knowledge.
It
appears
that
EPA
considered
a
rigorous
definition
of
EP
but
opted
not
to
follow
through.
It
should.
This
concept,
dealing
with
the
interpretation
of
subsurface
conditions,
was
apparently
not
discussed
in
detail
by
the
NRC
or
in
the
rationale
in
the
proposed
rule.
It
takes
on
a
greater
importance
also
in
that
the
proposed
rule
allows
more
judgment
by
the
EP
and
is
not
as
prescriptive
as
ASTM
1527.
371
Adding
also
to
the
importance
of
this
issue
is
the
proliferation
of
automated,
Internetbased
platforms
for
creating
data
summaries
and
maps
of
the
subject
area.
These
give
the
erroneous
impression
of
thoroughness
to
the
point
of
even
showing
groundwater
flow
direction
and
the
relative
elevation
of
surrounding
sites
that
have
the
potential
to
impact
the
subject
site.
These
presentations
can
be
very
misleading
and,
if
used
by
an
unqualified
EP,
may
lead
to
serious
oversights
with
significant
consequences.
The
judgment
of
a
qualified
"
geologist",
taking
advantage
of
all
available
geologic
and
hydrogeologic
information
sources,
is
necessary
for
this
purpose.
The
AAI
process,
therefore,
should
specifically
define
a
separate
component
in
and
of
itself
dealing
with
interpretations
of
the
subsurface
and
of
determining
which,
if
any,
adjoining
properties
may
have
contaminated
or
might
contaminate
the
subject
property.
The
rule
should
specifically
require
that
individuals
licensed
as
professional
geologists
or
individuals
meeting
equivalent
qualifications
such
as
the
Certified
Professional
Geologist
in
AIPG
make
these
decisions
in
a
specifically
defined
component
of
AAI.

Response:
EPA
appreciates
the
commenter's
concerns.
However,
EPA
has
determined,
after
reviewing
and
considering
all
public
comments
received
in
response
to
the
proposed
rule,
that
the
activities
required
to
complete
a
rigorous
all
appropriate
inquiries
investigation
do
not
necessarily
always
require
the
skills
of
a
professional
geologist.
In
the
final
rule,
EPA
adopted
a
definition
of
environmental
professional
that
describes
the
qualifications
that
EPA
determined
are
necessary
for
an
individual
who
oversees
or
manages
all
appropriate
inquiries
investigations.
Should
the
assessment
of
a
particular
property
require
the
skills
of
a
professional
geologist,
the
environmental
professional
overseeing
the
conduct
of
the
site
investigation
will
most
likely
identify
this
need
and
consult
with
a
professional
geologist
prior
to
rendering
an
opinion
regarding
the
environmental
conditions
of
a
property.
372
2.3.10
The
Agency
Should
Define
the
Term
"
Full­
Time"

Commenter
Organization
Name:
Lind,
Peter
Comment
Number:
0107
Excerpt
Number:
2
Excerpt
Text:
Which
brings
me
to
the
definition
for
"
relevant
experience".
The
proposed
regulations
consistently
state
the
equivalent
of
"
full­
time"
relevant
experience.
What
is
meant
by
"
full­
time".
As
a
licensed
architect,
or
engineer,
or
geologist,
or
any
other
professional
the
term
full­
time
must
be
defined.

In
Illinois,
I
currently
hold
ten
professional
licenses.
Seven
of
the
Illinois
professional
licenses
are
in
the
environmental
field:
asbestos,
lead,
air
monitoring,
project
management,
design
professional,
etc.
Illinois
does
not
currently
license
individuals
as
an
"
Environmental
Professional",
nor
firms
as
"
Environmental
Consultants".
For
the
most
part,
I
have
held
current
and
continuously
all
seven
licenses
since
1988...
or
a
total
of
16
years.

My
design
firm
also
serves
public
and
institutional
clients
offering
licensed
architectural
and
engineering
for
facility
needs.
If
my
design
firm
spends
50%
of
the
time
on
architecture
and
50%
on
AAI
related
projects,
then
my
total
relevant
experience
may
be
viewed
by
the
opposing
lawyer
as
only
8
years
(
16
years
times
50%
relevant
experience),
even
though
I
held,
maintained,
and
offered
the
AAI
service
to
clients
and
holding
all
relevant
state
environmental
licenses
for
the
entire
duration.
In
Illinois,
each
environmental
license
requires
relevant
EPA
refresher
training
to
maintain
the
annual
license.

Response:
The
use
of
the
phase
"
full­
time"
within
the
definition
of
environmental
professional
and
the
definition
of
relevant
experience
is
meant
to
require
that
an
individual
has
accumulated
the
equivalent
of
3,
5,
or
10
years
of
experience.
An
individual
may
accumulate
such
experience
over
a
longer
length
of
time
than
the
3,
5,
or
10
years,
as
long
as
the
total
time
of
accumulated
experience
would
be
the
equivalent
of
3,
5,
or
10
years
of
full­
time
experience.
Even
after
an
individual
accumulates
the
required
number
of
years
of
full­
time
experience,
that
individual
does
not
have
to
conduct
environmental
site
assessments,
or
all
appropriate
inquiries
investigations,
on
a
full­
time
basis
to
qualify
as
an
environmental
professional.

Commenter
Organization
Name:
Lind,
Peter
Comment
Number:
0107
Excerpt
Number:
4
Excerpt
Text:
3.
Define
the
term
"
full­
time"
as
an
individual
holding
current
an
annual
state
license
in
an
equivalent
environmental
consultant
role.
373
Response:
The
use
of
the
phase
"
full­
time"
within
the
definition
of
environmental
professional
and
the
definition
of
relevant
experience
is
meant
to
require
that
an
individual
has
accumulated
the
equivalent
of
3,
5,
or
10
years
of
experience.
An
individual
may
accumulate
such
experience
over
a
longer
length
of
time
than
the
3,
5,
or
10
years,
as
long
as
the
total
time
of
accumulated
experience
would
be
the
equivalent
of
3,
5,
or
10
years
of
full­
time
experience.
Even
after
an
individual
accumulates
the
required
number
of
years
of
full­
time
experience,
that
individual
does
not
have
to
conduct
environmental
site
assessments,
or
all
appropriate
inquiries
investigations,
on
a
full­
time
basis
to
qualify
as
an
environmental
professional.
374
SECTION
3:
Requirements
for
Conducting
All
Appropriate
Inquiries
Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
6
Excerpt
Text:
4.
The
proposed
performance
factors
listed
in
Section
312.20(
e)
state
that
the
Environmental
Professional
should
obtain
information
"
from
its
source
within
reasonable
time
&
cost
constraints."
BPC
requests
that
the
agency
provide
some
clarification
in
the
rule
on
what
it
considers
"
reasonable
time
and
cost
constraints."

Response:
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
The
performance
factors
included
in
the
final
rule
are
meant
to
provide
guidelines
for
the
conduct
of
the
inquiry
activities,
not
to
draw
absolute
boundaries
around
the
performance
of
the
data
collection
activities.
It
is
in
the
prospective
property
owner's
best
interest
to
conduct
the
inquiries
as
thoroughly
as
possible
to
ensure
his
or
her
ability
to
comply
with
all
of
the
statutory
criteria
for
the
CERCLA
liability
protections.
The
Agency
has
embraced
the
performance
standard
approach
to
the
final
rule
because
it
allows
flexibility
for
a
variety
of
circumstances
and
unique
properties.
This
standard
does
not
lend
itself
to
bright­
line
interpretation.
Rather,
the
Agency
is
comfortable
allowing
for
judicial
interpretation
of
this
standard.

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
3
Excerpt
Text:
­
Subpart
C
­
Standards
and
Practices,
Part
312.20
(
All
Appropriate
Inquiries),
Subpart
d
(
Objectives)

­­" 
threatened
releases
 "
­
please
define
"
threatened
releases".

­­" 
of
hazardous
substances "
­
please
define
"
hazardous
substances".
Specifically
address
the
inclusion/
exclusion
of
lead­
based
paint,
asbestos
containing
materials,
and
radon
gas
in
the
definition.

­­" 
on,
at,
in,
or
to
the
subject
property"
­
please
clarify/
further
define
"
subject
property"
to
identify
if
this
term
includes
structures
or
other
improvements,
or
if
it
is
limited
to
the
land
only.
375
Response:
The
term
"
threatened
release"
is
included
in
the
definition
of
"
release"
in
the
National
Contingency
Plan
(
NCP)
at
40
CFR
300.5.
For
the
purposes
of
the
NCP,
"
release
also
means
threat
of
release."
Under
CERCLA,
owners
and
operators
of
vessels
and
facilities
may
be
found
liable
for
both
releases
(
also
defined
in
Section
101(
22)
of
CERCLA)
of
hazardous
substances
and
threatened
releases
of
hazardous
substances.

The
term
"
hazardous
substance"
is
defined
in
CERCLA
Section
101(
22).

Although
the
term
"
subject
property"
is
not
defined,
the
term
is
used
in
the
final
rule
and
the
preamble
to
distinguish
between
the
property
that
is
the
subject
of
the
all
appropriate
inquiries
investigation,
or
the
property
that
the
prospective
landowner
who
is
undertaking
the
all
appropriate
inquiries
is
potentially
acquiring
and
surrounding
or
adjoining
properties.
When
undertaking
an
all
appropriate
inquiries
investigation,
the
prospective
purchaser
and
the
environmental
professional
should
investigate
all
portions
of
the
property
where
there
potentially
could
be
a
release
or
threatened
release
of
a
hazardous
substance,
including
structures
and
improvements.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
17
Excerpt
Text:
SEQUENCE
OF
AAI
ACTIVITIES
1)
FAA
believes
that
it
should
be
left
up
to
the
EP
to
determine
the
correct
sequence
to
conduct
the
AAI
activities.
Although
EPA
does
not
require
the
EP
or
purchaser
to
conduct
the
AAI
activities
in
a
specific
sequence,
EPA
does
recommend
that
certain
activities
take
place
before
others.
This
recommendation
could
hold
the
strength
of
a
requirement
if
examined
in
a
court
of
law.
Therefore,
FAA
believes
that
EPA
should
remove
references
to
a
preferred
AAI
activity
sequence
from
the
preamble
to
the
proposed
rule.

Response:
The
final
rule
includes
no
requirements
with
regard
to
the
sequence
in
which
the
all
appropriate
inquiries
activities
must
be
conducted.
The
few
instances
in
the
preamble
to
the
proposed
rule
where
EPA
made
recommendations
regarding
the
sequence
of
activities
were
provided
as
guidance
and
because
the
Agency
believes
the
sequence
may
be
important
in
many
instances.
For
instance,
a
visual
inspection
of
the
property
may
be
much
more
effective
if
it
is
informed
by
other
aspects
of
all
appropriate
inquiries
such
as
interviews
with
past
and
present
owners
and
operators.
Nothing
in
the
final
rule
precludes
the
environmental
professional
from
choosing
to
conduct
the
all
appropriate
inquiries
activities
in
whatever
order
that
he
or
she
determines
is
best.
376
3.1
Interview
Requirements
for
Non­
Abandoned
Properties
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
5
Excerpt
Text:
The
wording
of
§
312.23(
a)
requires
the
environmental
professional
to
interview
the
past
and
present
owner,
operator,
and
occupant
of
the
subject
property.
I
believe
the
intent
of
§
312.23(
a)
is
to
identify
potential
people
to
interview
not
required
people
to
interview.
In
addition,
§
312.23(
c)
states
that
one
or
more
of
the
following
people
(
manager,
past
or
present
owner/
occupant
employees)
should
be
interviewed
to
the
extent
necessary
to
achieve
the
AAI
objectives
This
contradicts
the
requirements
in
§
312.23(
a).

Response:
The
intent
of
§
312.23(
a)
is
to
conduct
interviews
of
past
and
present
owners
and
occupants
of
a
property.
The
requirement
assumes
that
the
persons
to
be
interviewed
will
be
identified
prior
to
the
conduct
of
interviews.
The
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
objectives
and
performance
factors
for
the
inquiries
in
'
312.20(
e)
and
(
f).
Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
occupants
to
be
interviewed
and
the
total
number
of
occupants
to
be
interviewed
in
seeking
to
comply
with
the
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.
The
Agency
sees
no
contradiction
between
the
requirements
of
§
312.23(
b)
and
§
312.23(
c).
They
are
separate
requirements
and
build
on
the
general
requirement
of
§
312.23(
a),
to
interview
past
and
present
owners
and
occupants,
a
restating
of
the
statutory
criteria.
Interviews
must
be
conducted
with
the
current
owners
and
occupants
of
a
property.
In
addition,
to
the
extent
necessary
to
meet
the
objectives
and
performance
standards
of
the
rule,
interviews
must
be
conducted
with
past
owners
and
occupants
of
the
property.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
5
Excerpt
Text:
Regarding
interviews
with
occupants
or
adjoining
property
owners,
performing
those
interviews
can
sometimes
be
against
the
owner's
or
purchaser's
wishes
during
a
business
transaction
involving
the
ESA
preparation....
not
because
of
the
hiding
of
environmental
issues,
but
due
to
sales/
purchases
of
property
which
need
to
be
kept
confidential.
Under
criteria
which
"
requires"
occupant
or
neighbor
interviews,
the
preparer
may
be
ask
by
the
client
to
"
not
be
totally
frank"
who
they
are
or
for
what
purpose
they
are
collecting
data.
This
creates
a
position
that
the
EP
does
not
need
to
be
legally
placed.
The
only
recourse
for
the
EP
is
to
state
it
is
a
requirement
on
the
proposal
to
the
client,
and
if
disallowed
by
that
client,
documented
in
the
ESA.
377
Response:
In
response
to
issues
raised
by
commenters,
we
point
out
that
the
statutory
criteria
in
CERCLA
101(
35)(
B)(
iii)
include
Ainterviews
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.@
EPA
asserts
that
it
was
clearly
congressional
intent
that
the
all
appropriate
inquiries
investigation
include
the
conduct
of
interviews
with
current
and
past
owners
and
occupants.
We
also
assert
that
current
and
past
owners
and
occupants
of
a
property
may
be
excellent
sources
of
information
regarding
past
and
on­
going
uses
of
the
property
as
well
as
the
types
of
waste
management
activities
that
were
undertaken
at
the
property.
Given
that
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Standard,
the
interim
standard
for
the
conduct
of
all
appropriate
inquiries,
includes
requirements
for
conducting
interviews
with
the
current
owners
and
occupants
of
a
property
and
provides
that
other
owners
and
occupants
are
good
additional
sources
of
information
about
property
uses
and
potential
contamination
at
a
property,
we
disagree
with
commenters
who
asserted
that
the
proposed
and
final
requirements
for
conducting
interviews
will
be
overly
burdensome.

With
regard
to
the
requirement
to
interview
owners
or
occupants
of
neighboring
properties
if
the
subject
property
is
abandoned,
EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Excerpt
Number:
2
Excerpt
Text:
Language
should
be
included
in
the
section
pertaining
to
conducting
interviews
with
current
and
past
owners,
operators,
and/
or
occupants
that
such
interviews
must
be
conducted
only
to
the
extent
that
past
owners,
operators,
and/
or
occupants
are
available,
reasonably
accessible,
and
cooperative.

REASON:
In
some
cases
owners,
operators,
and/
or
occupants
(
current
and
past)
are
not
available
for
interview,
or
refuse
to
cooperate.

Response:
All
of
the
all
appropriate
inquiries
activities
included
in
the
final
rule
are
subject
to
the
objectives
378
and
performances
standards
of
'
312.20(
e)
and
(
f).

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
7
Other
Sections:
NEW
­
3.2
­
Interview
requirements
for
abandoned
properties
Excerpt
Text:
We
suggest
the
following
text
revision:
­"
Interviews
should
be
conducted
with
an
appropriate
knowledgeable
party."

Response:
All
of
the
all
appropriate
inquiries
activities
included
in
the
final
rule
are
subject
to
the
objectives
and
performances
standards
of
'
312.20(
e)
and
(
f).
In
addition,
the
regulatory
language
in
'
312.23(
b)
clearly
indicates
that
interviews
should
be
conducted
with
individuals
"
likely
to
use,
store,
treat,
handle
or
dispose
of
hazardous
substances 
or
those
who
have
likely
done
so
in
the
past."

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
8
Excerpt
Text:
­
The
proposed
standards
for
conducting
interviews
of
past
and
present
owners
and
occupants
of
a
property.

­­
Intertox
supports
the
proposed
requirements
to
interview
the
current
owner
and
occupant
of
the
subject
property
as
well
as
other
parties
with
relevant
property
knowledge.
However,
the
requirement
should
state
that
interviews
with
additional
individuals
be
conducted
to
the
extent
that
these
additional
individuals
can
be
reasonably
contacted
and
interview
dates
established
within
reasonable
timeframes.

Response:
All
of
the
all
appropriate
inquiries
activities
included
in
the
final
rule
are
subject
to
the
objectives
and
performances
standards
of
'
312.20(
e)
and
(
f).

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
4
Excerpt
Text:
­­
Use
of
written
interview
format
(
i.
e.
questionnaire)
should
be
specifically
allowed.
Interviewee
should
be
required
to
sign
and
date
upon
completion.
This
provision
would
allow
for
completion
of
interviews
where
time/
distance/
schedules
might
normally
make
it
difficult
or
even
impossible
to
conduct
oral
interviews.
379
Response:
All
of
the
all
appropriate
inquiries
activities
included
in
the
final
rule
are
subject
to
the
objectives
and
performances
standards
of
'
312.20(
e)
and
(
f).
Nothing
in
the
final
rule
precludes
the
use
of
written
questionnaires
in
fulfilling
the
requirements
to
interview
current
and
past
owners
and
operators.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
2
Excerpt
Text:
Proposed
Rule
§
312.23(
a­
c)
requires
that
the
Environmental
Professional
(
EP)
interview
past
and
present
owners,
operators
and
occupants
of
the
subject
property.
However,
it
does
not
specifically
address
the
effects
of
uncooperative
current
operators/
occupants
or
prior
owners/
operators/
occupants
of
the
subject
property.
Particularly
in
the
case
of
long­
term
leases,
current
owners
may
not
be
able
to
proved
prospective
purchasers
the
access
required
to
satisfy
the
Proposed
Rule
without
the
cooperation
of
the
current
occupants.
It
is
unclear
under
the
Proposed
Rule
how
a
User
faced
with
such
circumstances
could
ever
avail
itself
of
the
CERCLA­
liability
defenses.
One
would
assume
that
such
lack
of
cooperation
could
be
simply
labeled
a
"
data
gap"
and
that
the
EP
could
seek
out
other
means
to
fill
that
gap;
however,
this
issue
should
be
clarified
in
the
final
Rule.

Response:
If
the
prospective
property
owner,
grantee
or
environmental
professional
is
unsuccessful
in
obtaining
interviews
with
current
or
past
owners,
the
inability
to
obtain
the
required
information
should
be
noted
as
a
data
gap
and
the
significance
of
the
data
gap
noted
in
the
written
report.

Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
5
Excerpt
Text:
In
addition,
the
proposed
AAI
rule
eliminates
the
requirements
that
are
included
in
the
interim
97
ASTM
Standard
that
establish
objective
requirements
on
how
the
interview
process
should
be
conducted,
including
how
interviews
should
be
pursued
and
documented,
making
it
likely
that
there
will
be
wide
variation
in
the
adequacy
of
the
interview
process.
Interviews
are
required
by
the
Brownfields
Law
and
a
potentially
weak
and
subjective
interview
process
undermines
a
key
tool
in
the
effort
to
uncover
environmental
problems
in
the
environmental
inquiry.

Response:
The
final
rule
does
not
prescribe
particular
questions
that
must
be
asked
during
the
interview.
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
individuals
under
the
supervision
or
responsible
charge
of
the
environmental
professional)
knowledge
of
the
property
prior
to
conducting
the
interviews.
Therefore,
the
final
rule
does
not
380
include
specific
questions
for
the
interviews,
but
requires
that
the
interviews
be
conducted
in
a
manner
that
achieves
the
objectives
and
performance
factors.
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.
It
would
be
inconsistent
with
the
performance
standards
to
require
a
certain
process
and
content
to
be
used
in
each
interview.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
6
Excerpt
Text:
§
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants
(
a)

In
§
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants
(
a),
it
is
unclear
exactly
who
must
be
interviewed.
A
suggested
modification
is:

­(
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)

Rationale:

­
The
way
the
language
of
the
Proposed
AAI
Rule
is
written,
it
was
unclear
if
past
and
present
modifies
owners,
occupants,
and
operators.

­
If
past
was
intended
to
modify
owner,
operator,
and
occupant
in
this
paragraph,
then
it
is
inconsistent
with
paragraph
(
c)
(
2)
which
suggests
that
the
EP
should
include,
to
the
extent
necessary
to
achieve
the
objective
and
performance
factors,
an
interview
with
one
or
more
of
three
categories
of
persons
including
past
owners,
occupants,
or
operators.
Whereas,
paragraph
(
a)
stated
that
the
EP
must
interview
these
individuals.

­
The
concept
of
being
required
to
interview
past
owners,
operators,
and
occupants
is
a
significant
departure
from
current
ASTM
standards
and
will
certainly
increase
the
time
and
cost
to
complete
an
assessment.

­
At
a
minimum,
the
preamble
should
clarify
that
it
is
within
the
EP's
judgment
who
to
interview
within
these
categories
and
that
it
may
not
be
necessary
to
interview
a
person
or
persons
from
each
of
these
categories.

Response:
The
intent
of
§
312.23(
a)
is
to
conduct
interviews
of
the
present
owner
and
occupants
of
the
property
and,
as
necessary,
past
owners
and
occupants
of
the
subject
property.
The
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
objectives
and
performance
factors
381
for
the
inquiries
in
'
312.20(
e)
and
(
f).
Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
occupants
to
be
interviewed
and
the
total
number
of
occupants
to
be
interviewed
in
seeking
to
comply
with
the
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.
The
Agency
sees
no
contradiction
between
the
requirements
of
§
312.23(
b)
and
§
312.23(
c).
They
are
separate
requirements
and
build
on
the
general
requirement
of
§
312.23(
a),
to
interview
past
and
present
owners
and
occupants,
a
restating
of
the
statutory
criteria.
Interviews
must
be
conducted
with
the
current
owners
and
occupants
of
a
property.
In
addition,
to
the
extent
necessary
to
meet
the
objectives
and
performance
standards
of
the
rule,
interviews
must
be
conducted
with
past
owners
and
occupants
of
the
property.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
8
Excerpt
Text:
§
312.23
Interviews
with
past
and
present
owners,
operators,
and
occupants
(
preamble
comment)

On
page
52561
of
the
Proposed
AAI
Rule,
the
preamble
points
out
that
data
gathered
during
the
interviews
may
provide
valuable
information
for
the
on­
site
visual
inspection.
While
this
may
certainly
be
the
case,
the
preamble
should
also
clarify
that
the
AAI
Rule
is
not
requiring
that
the
interviews
must
be
conducted
before
the
on­
site
inspection.

Response:
In
the
preamble
to
the
proposed
rule
the
Agency
merely
suggests
that
the
interviews
should
be
conducted
before
the
on­
site
visual
inspection
to
maximize
the
benefit
of
such
an
inspection.
The
final
rule
includes
no
requirements
with
regard
to
the
sequence
in
which
the
all
appropriate
inquiries
activities
must
be
conducted.
The
few
instances
in
the
preamble
to
the
proposed
rule
where
EPA
made
recommendations
regarding
the
sequence
of
activities
were
provided
as
guidance
and
because
the
Agency
believes
the
sequence
may
be
important
in
many
instances.
For
instance,
a
visual
inspection
of
the
property
may
be
much
more
effective
if
it
is
informed
by
other
aspects
of
all
appropriate
inquiries
such
as
interviews
with
past
and
present
owners
and
operators.
Nothing
in
the
final
rule
precludes
the
environmental
professional
from
choosing
to
conduct
the
all
appropriate
inquiries
activities
in
whatever
order
that
he
or
she
determines
is
best.
382
3.1.1
Interview
of
the
Current
Owners,
Occupants,
Employees,
and/
or
Managers
of
the
Subject
Property
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
13
Other
Sections:
NEW
­
3.11.1
­
De
minimis
conditions
or
releases
of
hazardous
substances
Excerpt
Text:
The
proposed
§
312.23(
b)
requires
that
the
EP's
inquiry
include
interviews
with
"
major
occupants"
and
"
occupants
likely
to
use,
store,
treat,
handle
or
dispose
of
hazardous
substances."
Under
this
proposed
rule,
an
environmental
professional
must
interview
all
occupants
of
a
property
who
are
likely
to
"
use,
store,
treat,
handle
or
dispose
hazardous
substances
 "
This
could
be
interpreted
to
include
any
residence,
as
they
typically
have
ammonia,
chlorine
bleach,
various
pesticides,
etc.
This
requirement
would
create
additional
cost
and
difficulty
in
conducting
inquiries,
while
providing
only
a
minimal
benefit,
if
any
at
all.
For
example,
if
a
property
contains
an
apartment
complex,
the
EP
could
be
required
to
interview
every
tenant
in
the
building.
R&
W
requests
that
the
EPA
clarify
this
requirement
to
specifically
exclude
de
minimis
use,
storage,
and
disposal
of
hazardous
substances
that
are
typically
associated
with
residential
dwellings
and
commercial
offices.

Response:
The
intent
of
§
312.23
is
to
conduct
interviews
of
past
and
present
owners
and
occupants
of
a
property
"
for
the
purposes
of
achieving
the
objectives
and
performance
factors."
The
rule
does
not
specify
the
number
of
owners
and
occupants
to
be
interviewed,
not
does
it
require
that
all
owners
and
occupants
be
interviewed.
The
environmental
professional
must
perform
this
function
in
the
manner
that
best
fulfills
the
objectives
and
performance
factors
for
the
inquiries
in
'
312.20(
e)
and
(
f).
Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
occupants
to
be
interviewed
and
the
total
number
of
occupants
to
be
interviewed
in
seeking
to
comply
with
the
objectives
and
performance
factors
for
the
inquiries.
Interviews
should
include
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.

Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
4
Excerpt
Text:
The
proposed
§
312.23(
b)
requires
that
the
Environmental
Professional's
inquiry
include
interviews
with
"
major
occupants"
and
"
occupants
likely
to
use,
store,
treat,
handle
or
dispose
of
hazardous
substances."
Under
the
proposed
rule,
an
environmental
professional
must
interview
all
occupants
of
a
property.
This
requirement
would
create
additional
cost
and
difficulty
in
conducting
inquiries
while
providing
only
a
minimal
benefit
if
any
at
all.
For
example,
if
a
383
property
contains
an
apartment
complex,
the
environment
professional
would
be
required
to
interview
every
tenant
in
the
building.
The
Grand
Rapids
Area
Chamber
of
Commerce
recommends
that
the
EPA
strike
the
word
"
shall"
in
the
second
sentence
of
§
312.23(
b)
and
replace
it
with
the
word
"
may."
The
Grand
Rapids
Area
Chamber
of
Commerce
believes
that
limiting
the
interview
requirements
to
the
current
owner
and
operating
manager
of
the
property
in
question
would
be
a
reasonable
requirement.

Response:
Please
see
response
to
comment
0320,
excerpt
13.

Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
2
Excerpt
Text:
Commonly,
the
owner
of
a
property
does
not
want
employees
or
tenants
to
know
that
they
are
interested
in
selling
and
will
not
allow
interviews
with
anyone
else.
This
can
limit
the
numbers
of
interviews
the
EP
is
able
to
conduct,
and
could
thereby
create
a
data
gap.
In
such
a
case,
the
EP
must
be
allowed
to
acknowledge
that
limitation
in
the
report
without
the
report's
entire
credibility
called
into
question.
Clarification
on
the
wording
that
the
EP
should
use
in
such
a
case,
particularly
in
the
final
two
statements
above
the
signature,
should
be
included
in
the
preamble.

Response:
If
the
prospective
property
owner,
grantee
or
environmental
professional
is
unsuccessful
in
obtaining
interviews
with
current
or
past
owners,
the
inability
to
obtain
the
required
information
should
be
noted
as
a
data
gap
and
the
significance
of
the
data
gap
noted
in
the
written
report.
The
specific
language
included
in
the
written
report
will
depend
upon
whether
the
information
that
could
have
been
collected
during
the
interviews
was
available
from
other
sources,
the
exact
nature
of
the
missing
information,
and
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
the
property.
384
3.1.2
Interview
of
the
Past
Owners,
Occupants,
Employees,
and/
or
Managers
of
the
Subject
Property
Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
8
Excerpt
Text:
As
a
practical
matter
it
is
usually
difficult
and
frequently
impossible
to
locate
former
owners
and
occupants.
Any
such
requirement
would
greatly
increase
the
cost
of
preparing
a
report.
Similar
to
the
data
gaps
issue,
the
discussion
needs
to
be
framed
in
the
context
of
the
principles
incorporated
in
current
commercial
practice.
As
currently
worded
it
would
seem
to
offer
the
flexibility
to
the
EP
to
decide
if
there
was
any
need
to
contact
former
owners
or
occupants.

Response:
The
final
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
objectives
and
performance
factors
for
the
inquiries
in
'
312.20(
e)
and
(
f).
Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
owners
and
occupants
(
both
current
and
past)
to
be
interviewed
in
seeking
to
comply
with
the
objectives
and
performance
factors
for
the
inquiries.
Interviews
are
to
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
addition,
to
the
extent
necessary
to
meet
the
objectives
and
performance
standards
of
the
rule,
interviews
must
be
conducted
with
past
owners
and
occupants
of
the
property.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
6
Excerpt
Text:
Some
qualifying
language
is
necessary
for
(
c)
(
1)
through
(
3)
since
interviews
with
former
occupants
are
required.
It
would
be
unreasonable
to
obtain
contact
information
from
former
occupants
of
a
property
and
even
more
unreasonable
to
expect
the
former
occupants
to
speak
with
a
consultant.
Again,
either
a
qualifier
for
information
provided
by
municipal
offices
would
replace
interview
requirements
for
former
occupants
or
qualifying
language
about
"
when
available"
or
"
when
contact
information
is
reasonable
ascertainable"
or
"
when
previous
site
investigations
do
not
provide
interviews
or
adequate
historical
operations
information"

Response:
Please
see
response
to
comment
0256,
excerpt
8.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
385
Excerpt
Number:
3
Excerpt
Text:
§
312.23
(
a)
and
(
c)
require
the
interview
of
one
or
more
of
the
following
people:
past
facility
managers;
past
owners,
occupants,
or
operators;
or
employees
of
past
owners
(
in
addition
to
current
use
interview
targets).

Comment:
As
in
the
case
of
interviews
of
abutters,
ENSR
has
strong
reservations
about
the
practicality
of
this
requirement,
particularly
when
the
proposed
transaction
is
confidential,
as
is
often
the
case.

If
you
are
going
to
have
this
requirement,
we
recommend
modifying
the
language
such
that
these
interviews
are
required
only
if
needed
to
fill
data
gaps
regarding
past
site
use,
and
that
past
site
use
is
reasonably
likely
to
include
processes
or
activities
which
could
have
contributed
to
a
release.
If
this
is
not
the
case,
much
time
(
and
money)
would
be
needlessly
spent
attempting
to
track
down
and
interview
prior
residential
property
owners,
past
farmers,
office
tenants,
etc.

Response:
Please
see
response
to
comment
0256,
excerpt
8.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
12
Excerpt
Text:
The
proposed
§
312.23(
c),
conditional
requirement
to
interview
past
owners,
occupants,
employees,
and/
or
managers
of
the
subject
property
creates
a
significant
concern
if
any
data
gaps
exist
without
such
interviews.
While
interviews
with
these
parties
may
well
provide
useful
information,
conducting
such
interviews
could
disclose
confidential
business
information.
If,
for
example,
the
seller
of
the
property
is
a
publicly
traded
company,
the
de
facto
disclosure
of
the
potential
sale
is
disclosure
of
inside
information
and
would
constitute
a
securities
law
violation.
The
EP
cannot
be
placed
into
a
situation
in
which
he/
she
may
be
in
the
position
of
such
a
violation.
R&
W
requests
the
EPA
to
specifically
acknowledge
such
situations.
The
EP
may
then
use
professional
judgement
to
assess
if
other
mechanisms
are
more
appropriate
to
address
the
data
gap.

Response:
Please
see
response
to
comment
0256,
excerpt
8.
The
commenter
appears
to
be
overstating
the
consequences
of
disclosing
the
mere
fact
that
a
property
will
potentially
be
purchased.
Interviews
with
past
owners
and
occupants
must
only
be
conducted
as
necessary
to
meet
the
objectives
and
performance
standards
of
the
final
rule.
If
information
that
could
be
gained
from
past
owners
and
occupants
can
be
obtained
from
other
sources,
then
interviews
with
these
parties
need
not
be
conducted.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
386
continuing
obligations.
It
is
in
the
prospective
property
owner's
best
interest
to
conduct
the
inquiries
as
thoroughly
as
possible
to
ensure
his
or
her
ability
to
comply
with
all
of
the
statutory
criteria
for
the
CERCLA
liability
protections.

Commenter
Organization
Name:
Baker
Petrolite
Comment
Number:
0352
Excerpt
Number:
5
Excerpt
Text:
3.
Some
properties
may
have
had
multiple
leasing
tenants
prior
to
the
performance
of
an
All
Appropriate
Inquiry.
BPC
respectfully
requests
that
EPA
clarify
in
the
rule
the
extent
to
which
environmental
professionals
must
pursue
former
occupants
of
a
property
for
the
purpose
of
obtaining
historical
information
and
that
EPA
specify
the
legal
standard
of
due
care
and
case
law
that
may
be
relied
upon
for
interpreting
achievement
of
the
performance
standard.

Response:
Please
see
response
to
comment
0256,
excerpt
8.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
14
Excerpt
Text:
­
Interviews
with
Past
Owners,
Operators,
and
Occupants
Proposed
§
312.23
provides
that
the
"
inquiry
of
the
environmental
professional
must
include
interviewing
the
current
owner
and
occupant
of
the
subject
property,
and
further
that
"[
t]
he
inquiry
of
the
environmental
professional
should
include,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors.
.
.
interviewing
one
or
more
of
the
following
[
including
past
owners,
occupants,
or
operators]."
The
new
rule,
then,
makes
a
distinction
between
interviewing
current
owners,
which
is
mandatory,
and
interviewing
past
owners,
which
is
discretionary
within
the
schema
of
the
new
rule.
The
environmental
professional
might
consult
sources
other
than
past
owners
to
obtain
information
that
would
be
obtained
if
he
interviewed
them.
Before
moving
on
to
show
that
ASTM
E1527
also
provides
for
interviewing
past
owners
in
a
similar
discretionary
way
within
its
schema,
we
would
like
to
note
that
obtaining
useful
information
through
interviewing
past
owners
is
likely
to
prove
a
chimerical
exercise.
What
possible
incentive
would
a
past
owner
have
for
disclosing
that
hazardous
waste
was
handled,
stored
or
disposed
of
while
she
owned
the
property?
It
is
the
rare
individual
indeed
who
volunteers
to
be
a
CERCLA
responsible
party.
Current
owners,
on
the
other
hand,
presumably
are
interested
in
answering
because
they
want
to
sell
the
property
(
at
least
in
many
cases)
and
have
an
interest
in
being
truthful
because
withholding
information
that
could
affect
the
value
of
the
property
in
the
context
of
a
sale
would
expose
them
to
contract
and
tort
liability.
However,
we,
like
the
committee,
recognize
that
Congress
applied
the
adjective
"
past"
to
the
noun
"
owner"
in
reciting
the
criteria
for
All
Appropriate
Inquiry.
387
ASTM
E1527­
00
§
3.3.25
defines
"
other
historical
sources"
to
include
"
any
source
or
sources 
that
are
credible
to
a
reasonable
person
and
that
identify
past
uses
of
the
property."
"
Any
source"
no
doubt
includes
interviewing
past
owners.
The
purpose
of
consulting
historical
sources
is
to
identify
"
recognized
environmental
conditions,"
ASTM
E1527­
00
§
7.3.1,
and
the
environmental
professional
may
consult
"
other
historical
sources"
to
satisfy
this
requirement.
ASTM
E1527­
00
§
7.3.2.3.
Other
sources
also
include
"
personal
knowledge"
of
individuals.
ASTM
E1527­
00
§
3.3.25.
ASTM
E1527
therefore
includes
interviewing
past
owners
as
discretionary
within
its
schema
and
complies
with
the
statutory
criteria
to
"
include"
interviews
with
"
past
and
present
owners."
42
U.
S.
C.
§
9601
(
35)(
B)(
iii)(
II).

We
see
no
bar
here
to
adopting
ASTM
E1527­
00
verbatim.
EPA's
mandate
was
to
"
clarify
the
obligations"
of
prospective
purchasers
Since
Congress
explicitly
used
the
word
"
past"
in
connection
with
owner,
EPA
could,
if
it
desires
extra
comfort,
add
the
clarifying
words
"
past
or
present"
before
the
words
"
property
owner"
in
the
last
sentence
of
ASTM
E1527
§
3.3.25.

Response:
EPA
maintains
that
although
the
ASTM
E1527­
2000
standard
states
that
"
other
sources"
of
information
may
include
"
personal
knowledge"
of
individuals,
the
ASTM
standard
does
not
require
or
advise
environmental
professionals
to
interview
past
owners
or
occupants
of
the
subject
property.
Interviews
with
past
owners
and
occupants
must
only
be
conducted
as
necessary
to
meet
the
objectives
and
performance
standards
of
the
final
rule.
If
information
that
could
be
gained
from
past
owners
and
occupants
can
be
obtained
from
other
sources,
then
interviews
with
these
parties
need
not
be
conducted.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
It
is
in
the
prospective
property
owner's
best
interest
to
conduct
the
inquiries
as
thoroughly
as
possible
to
ensure
his
or
her
ability
to
comply
with
all
of
the
statutory
criteria
for
the
CERCLA
liability
protections.

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
5
Excerpt
Text:
­­
The
difficulty
of
contacting
past
facility
managers,
owners,
occupants,
operators
and
employees
should
be
addressed.
Entities
seeking"
Innocent
Landowner"
status
should
be
responsible
for
provision
of
these
contacts
to
the
Environmental
Professional.

Response:
Interviews
with
past
owners
and
occupants
must
only
be
conducted
as
necessary
to
meet
the
objectives
and
performance
standards
of
the
final
rule.
If
information
that
could
be
gained
from
past
owners
and
occupants
can
be
obtained
from
other
sources,
then
interviews
with
these
parties
need
not
be
conducted.
Environmental
professionals
may
request
that
the
prospective
landowner
or
grantee
assist
with
identifying
and
locating
past
owners
and
occupants.
The
primary
objective
388
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
It
is
in
the
prospective
property
owner's
best
interest
to
conduct
the
inquiries
as
thoroughly
as
possible
to
ensure
his
or
her
ability
to
comply
with
all
of
the
statutory
criteria
for
the
CERCLA
liability
protections.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
4
Other
Sections:
NEW
­
3.6.3
­
Visual
inspection
of
adjoining
properties
Excerpt
Text:
The
Proposed
Rule
notably
increases
the
content
requirements
under
Phase
I
ESAs.
An
environmental
professional
(
EP)
must
interview
past
owners,
operators
and
occupants
of
the
property,
not
just
the
current
owner,
and
if
the
property
is
abandoned,
the
EP
must
interview
owners
or
occupants
of
adjacent
properties.
What
if
the
adjacent
property
is
abandoned?
How
far
must
the
EP
go
to
track
down
past
owners,
operators
and
occupants?
How
far
back
in
a
line
of
owners,
operators
and
occupants
must
the
EP
go?

Response:
In
response
to
issues
raised
by
commenters,
we
point
out
that
the
statutory
criteria
in
CERCLA
101(
35)(
B)(
iii)
include
Ainterviews
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.@
EPA
asserts
that
it
was
clearly
congressional
intent
that
the
all
appropriate
inquiries
investigation
include
the
conduct
of
interviews
with
current
and
past
owners
and
occupants.
We
also
assert
that
current
and
past
owners
and
occupants
of
a
property
may
be
excellent
sources
of
information
regarding
past
and
on­
going
uses
of
the
property
as
well
as
the
types
of
waste
management
activities
that
were
undertaken
at
the
property.
Given
that
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Standard,
the
interim
standard
for
the
conduct
of
all
appropriate
inquiries,
includes
requirements
for
conducting
interviews
with
the
current
owners
and
occupants
of
a
property
and
provides
that
other
owners
and
occupants
are
good
additional
sources
of
information
about
property
uses
and
potential
contamination
at
a
property,
we
disagree
with
commenters
who
asserted
that
the
proposed
and
final
requirements
for
conducting
interviews
will
be
overly
burdensome.

With
regard
to
the
requirement
to
interview
owners
or
occupants
of
neighboring
properties
if
the
subject
property
is
abandoned,
EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
389
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.
If
all
neighboring
properties
also
are
abandoned,
then
it
will
be
impossible
to
conduct
the
interviews.
If
information
necessary
to
meet
the
objectives
and
performance
standards
cannot
be
obtained,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
data
gaps
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
21
Excerpt
Text:
WHAT
COMPELS
COOPERATION?

1)
Assuming
that
the
EP
can
identify
and
contact
the
past
owners
and
operators
and
past
facility
managers
of
a
subject
property,
what
would
compel
them
to
discuss
potential
past
environmental
regulations
violations
that
may
have
resulted
from
their
past
actions?

Response:
Interviews
must
be
conducted
with
the
current
owners
and
occupants
of
a
property.
In
addition,
to
the
extent
necessary
to
meet
the
objectives
and
performance
standards
of
the
rule,
interviews
must
be
conducted
with
past
owners
and
occupants
of
the
property.
EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
standards
can
not
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
data
gaps
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.
390
3.2
Interview
Requirements
for
Abandoned
Properties
Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
6
Excerpt
Text:
6
Steve
Myers
What
Compels
Cooperation?
312.20(
b)(
2)(
i)
and
312.23(
a),
(
c)(
2)­(
3)
and
52560­
61
Assuming
that
past
owners
or
operators
of
a
subject
property
can
be
identified
and
contacted,
what
is
there
that
will
compel
them
to
discuss
potential
past
environmental
regulation
violations
which
could
have
been
the
result
of
those
activities
discussed
in
312.20
(
d)(
1)(
i­
iv)
with
an
Environmental
Professional?

Response:
See
response
to
comment
0334,
excerpt
21.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
11
Excerpt
Text:
11
Steve
Myers
What
Compels
Cooperation?
312.23(
c)(
1)
Assuming
that
past
facility
managers
of
a
subject
property
can
be
identified
and
contacted,
what
is
there
that
would
compel
them
to
discuss
potential
past
environmental
regulation
violations
which
could
have
been
the
result
of
those
activities
discussed
in
312.20(
d)(
1)(
i­
iv)
with
an
Environmental
Professional?

Response:
See
response
to
comment
0334,
excerpt
21.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
7
Other
Sections:
NEW
­
3.1
­
Interview
requirements
for
non­
abandoned
properties
Excerpt
Text:
We
suggest
the
following
text
revision:
­"
Interviews
should
be
conducted
with
an
appropriate
knowledgeable
party."

Response:
The
final
rule
at
312.23
(
b)
requires
that
interviews
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.
391
Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
15
Excerpt
Text:
312.10(
b)
­
Abandoned
property:
A
better
indicator
that
a
property
is
abandoned
would
seem
to
be
if
taxes
have
been
paid.
This
information
is
easy
to
obtain
and
is
commonly
included
in
title
reports
(
not
chains
of
title).

Response:
The
final
rule
defines
an
abandoned
property
as
a
Aproperty
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.@
EPA
contends
that
a
rightful
and
legitimate
owner
of
a
property
may
be
delinquent
in
paying
property
taxes.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
12
Excerpt
Text:
We
also
believe
that
the
proposed
definition
of
"
abandoned
property"
in
proposed
section
312.10(
b)
will
result
in
unnecessary
confusion
due
to
the
reference
to
"
general
disrepair
or
lack
of
activity",
two
phenomena
that
are
not
necessarily
indicative
of
an
abandoned
property.
What
is
critical
to
identifying
a
parcel
of
property
as
abandoned
is
the
absence
of
an
identifiable
owner.
It
is
not
uncommon
to
find
property
in
a
state
of
general
disrepair
or
lack
of
activity
due
to
an
identified
owner's
inability
or
disinterest
in
maintaining
the
property.
We
would
not
describe
such
a
property
as
abandoned.
We
suggest
that
the
definition
of
"
abandoned
property"
be
modified
to
read:

Abandoned
property
means:
property
that
can
be
presumed
to
be
deserted
based
on
the
inability
to
identify
the
property
owner,
or
an
intent
to
relinquish
possession
or
control
can
be
inferred
from
the
denial
of
ownership
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.

Response:
Please
see
response
to
comment
0347,
excerpt
15.
"
The
general
lack
of
disrepair
or
lack
of
activity"
must
be
indicative
of
an
intent
to
relinquish
possession
or
control
as
viewed
by
a
reasonable
person.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
6
Excerpt
Text:
Proposed
requirements
to
interview
owners
or
occupants
of
neighboring
properties
in
the
case
of
392
abandoned
properties.

a)
Page
#
52579
b)
View:
This
proposal
is
supported.
Too
often
no
persons
are
available
to
interview
and
provide
information
on
the
Subject.
Neighbors
often
have
a
plethora
of
information
about
the
Subject
Property.
Specifically,
neighbors
will
historically
observe
exterior
operations
such
as
waste
storage,
disposal,
dumping,
and/
or
remediation
projects.

c)
Assumptions:
The
interview
process
is
critical
to
gathering
information
about
the
Subject
Property
that
would
not
be
available
from
Regulatory
Files
and/
or
onsite
inspection.

d)
Burden:
The
EP
would
need
to
expand
interview
inquiries
to
surrounding
properties.
However
the
additional
time
involved
is
immaterial.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
requirements.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
1
Excerpt
Text:
In
§
312.10
Definitions,
the
Abandoned
property
definition
needs
clarification.
The
definition
should
be
revised
to
reflect
the
intent
of
the
requirement
to
interview
one
or
more
neighboring
or
nearby
property
owners
when
the
property
is
abandoned.
A
suggested
modification
is:

"
property
that
can
be
presumed
to
be
deserted
based
on
the
inability
to
identify
the
property
owner,
or
an
intent
to
relinquish
possession
or
control
can
be
inferred
from
the
denial
of
ownership
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."

Rationale:

­
Properties
that
appear
to
be
in
general
disrepair
or
have
a
lack
of
activity
are
not
strong
indicators
that
the
property
is
abandoned.
The
way
the
definition
is
worded
literally
requires
the
EP
to
interview
neighbors
at
every
site
that
is
in
a
state
of
general
disrepair
or
lack
of
activity.
Rather,
the
definition
of
abandoned
property
should
include
the
concept
of
the
missing
or
truant
property
owner
either
through
the
inability
to
identify
the
property
owner
or
through
a
denial
of
ownership.

Response:
Please
see
response
to
comment
0367,
excerpt
12.
393
Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
3
Excerpt
Text:
We
also
believe
that
the
time
(
and
costs)
for
interviewing
under
an
AAI­
compliant
ESA
will
increase
due
to
challenges
with
tracking
down
neighboring
property
owners.

Response:
EPA
disagrees
with
commenters
who
stated
that
it
will
be
difficult
to
locate
and
contact
neighboring
property
owners
and
occupants.
The
final
rule,
as
did
the
proposed
rule,
requires
that
the
environmental
professional
only
locate
and
interview
one
neighboring
property
owner
or
occupant
and
only
in
those
cases
where
no
owner
or
occupant
of
the
subject
property
can
be
identified.
An
environmental
professional
should
be
able
to
locate
one
owner
or
occupant
of
a
neighboring
property
when
conducting
the
on­
site
visual
inspection
of
the
property.
If
the
environmental
professional
cannot
easily
locate
an
owner
and
occupant
of
a
neighboring
property
owner,
he
or
she
may
enlist
the
assistance
of
local
government
officials
in
identifying
a
neighboring
property
owner
or
occupant.
394
3.2.1
Interviewing
Owners
of
Neighboring
Properties
Should
Be
Optional
Commenter
Organization
Name:
Fischer,
Greg
Comment
Number:
0062
Excerpt
Number:
1
Excerpt
Text:
Hypothectical:
While
doing
the
site
reconnaissance
of
an
abandoned
property
an
attempt
is
made
to
interview
a
neighbor(
s)
and
no
one
is
home.
Is
the
environmental
professional
required
to
revisit
the
site
until
someone
answers
the
door?
In
a
related
instance
what
should
the
professional
do
if
he
or
she
senses
that
the
neighborhood
is
not
safe
i.
e.
apparent
drug
or
gang
related
activity.

Response:
Please
see
response
to
comment
0433,
excerpt
3.

Commenter
Organization
Name:
Beaver,
Christine
Comment
Number:
0074
Excerpt
Number:
3
Excerpt
Text:
With
regard
to
the
proposed
requirement
to
interview
owners
or
occupants
of
neighboring
properties
in
the
case
of
abandoned
properties,
it
is
my
opinion
that
it
presents
a
conflict
of
interest.
I
believe
there
would
be
difficulty
with
obtaining
either
cooperation
or
credible
information
from
neighboring
property
owners.
Neighboring
property
owners
may
either
be
unmotivated
to
provide
any
information
or
conversely
could
provide
information
to
further
their
own
interests
or
those
of
community
groups.
It
is
not
known
what
the
historical
relationship
between
the
neighboring
property
owners
has
been
and
how
this
might
affect
the
information
they
provide.
Information
on
the
neighboring
properties
from
visual
inspection
and
records
review
would
also
be
included
in
the
report
to
assess
impacts
to
the
subject
property
from
off­
site
sources
and
that
may
affect
the
information
neighboring
property
owners
provide
by
trying
to
place
blame
for
environmental
liabilities
elsewhere.
Also,
the
source
of
information
being
consulted
is
one
who
has
an
opportunity
to
claim
protection
from
CERCLA
liability
as
a
contiguous
property
owner
and
this
may
affect
the
information
they
are
willing
to
provide.

Response:
As
is
the
case
with
information
ascertained
from
any
interview,
the
environmental
professional
must
apply
his
or
her
judgment
when
drawing
conclusions
based
on
the
information
provided
in
interviews
with
neighboring
property
owners
and
occupants
and
should
attempt
to
verify
any
information
provided
by
reviewing
other
available
sources
of
information.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
395
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
Roark,
Michael
Comment
Number:
0081
Excerpt
Number:
2
Excerpt
Text:
One
concern
I
have
is
the
proposed
requirement
that
states
that
owners
of
adjacent
properties
should
be
interviewed
if
assessing
an
abandoned
property.
This
requirement
may
cause
confidentiality
conflicts
with
several
clients.
Based
on
the
delicate
nature
of
commercial
redevelopment
transactions,
I
would
request
that
EPA
make
the
neighboring
landowner
interview
requirement
an
optional
item,
depending
on
the
confidentiality
of
the
project.

Response:
With
regard
to
the
requirement
to
interview
owners
or
occupants
of
neighboring
properties
if
the
subject
property
is
abandoned,
EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
11
Excerpt
Text:
Sec.
312.23(
d),
in
the
case
of
abandoned
properties,
EPA
requires
the
EP
to
interview
"
one
or
more
(
as
necessary)
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
uses
of,
or
releases
at,
such
abandoned
properties...."
What
if
the
present
owners
or
occupants
did
not
own
or
occupy
their
property
at
the
time
the
abandoned
parcel
was
operational?
Is
the
EP
supposed
to
hunt
down
owners/
occupiers
from
the
time
the
abandoned
parcel
was
in
use?
This
wide­
ranging
hunt
for
site
specific
information
will
make
brownfield
redevelopment
very
costly.

Response:
EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
396
standards
cannot
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
9
Excerpt
Text:
This
limited
exception
requiring
interviews
with
neighboring
properties
will
occur
so
rarely
it
is
not
a
significant
issue
in
the
context
of
standard
commercial
practice.
It
needs
to
remain
clear
that
this
is
an
exception.

Response:
The
rarity
or
prevalence
of
any
particular
situation
does
not
change
the
requirements.
Abandoned
properties
are
often
the
focus
of
Phase
I
environmental
assessments.

Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
1
Excerpt
Text:
One
should
try
to
interview
past
and
current
owners,
occupants
and
may
be
even
operators
of
subject
tract,
but
I
don't
believe
it
should
be
mandatory
to
interview
adjacent
property
owners.
Adjacent
property
owners
are
sometimes
helpful,
but
some
times
can
be
misleading,
too.

Response:
The
final
rule
only
requires
that
neighboring
property
owners
be
interviewed
in
those
cases
where
the
subject
property
is
abandoned.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorilyimposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
5
Excerpt
Text:
397
It
is
unreasonable
to
require
consultants
to
interview
neighboring
property
owners
to
determine
whether
uncontrolled
access
to
an
abandoned
property
has
lead
to
contamination.
The
neighboring
owners
may
be
unwilling
to
discuss
the
property
or
unable
to
provide
useful
or
reliable
knowledge.
Further,
the
neighbor
may
be
hostile
towards
the
subject
property
owner
and
provide
false
accusations.
Information
from
a
neighboring
owner
may
be
"
hear­
say",
and
as
such,
should
be
considered
unreliable.
This
section
should
include
interviews
with
municipal
officials
to
obtain
information
about
abandoned
properties.
Municipal
officials
would
be
a
viable
source
of
information
and
constitute
a
far
more
reliable
source.

Response:
The
final
rule
only
requires
that
neighboring
property
owners
be
interviewed
in
those
cases
where
the
subject
property
is
abandoned.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorilyimposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
standards
can
not
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0294
Excerpt
Number:
1
Excerpt
Text:
312.23
(
d)
The
requirement
to
interview
nearby
occupants/
property
owners
may
conflict
with
confidentiality
agreements
that
environmental
professionals
have
with
clients,
particularly
financial
institutions.

Response:
With
regard
to
the
requirement
to
interview
owners
or
occupants
of
neighboring
properties
if
the
subject
property
is
abandoned,
EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
is
to
identify
conditions
indicative
of
releases
or
threatened
398
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
not
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
1
Excerpt
Text:
§
312.23
(
d)
requires
the
interview
of
one
or
more
(
as
necessary)
neighbors
or
abutters
in
the
case
of
the
subject
property's
being
abandoned
and
there
is
evidence
of
potential
unauthorized
uses
of
or
uncontrolled
access
to
the
abandoned
subject
property.

Comment:
ENSR
has
strong
reservations
about
the
practicality
of
this
requirement,
particularly
when
the
proposed
transaction
is
confidential,
as
is
often
the
case.
Additionally,
there
are
potential
safety
issues
that
may
be
involved
in
approaching
abutters.

Response:
The
final
rule
only
requires
that
neighboring
property
owners
be
interviewed
in
those
cases
where
the
subject
property
is
abandoned.
The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
standards
can
not
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
399
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
2
Excerpt
Text:
It
is
unclear
why
an
abandoned
property
requires
interviews
with
neighbors.
As
a
practical
matter,
many
times
clients
do
not
want
neighbors
to
know
of
their
interest
in
a
property,
due
to
financing
relationships,
competition
with
other
prospective
purchasers
and
other
proprietary
considerations.
You
are
also
assuming
that
neighbors
will
provide
accurate
historical
information
Response:
Please
see
response
to
comment
0314,
excerpt
1.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
11
Excerpt
Text:
Interviews
with
Neighbors
of
Abandoned
Properties.
We
appreciate
the
fact
that
proposed
section
312.23(
d),
providing
for
interviews
with
owners
or
occupants
of
neighboring
or
nearby
properties
when
conducting
AAI
for
an
abandoned
property,
is
a
compromise
agreed
to
after
long
and
contentious
debate
by
the
Reg­
Neg
Committee.
As
EPA
certainly
has
come
to
appreciate,
early
disclosure
of
a
proposed
property
transaction
will
often
be
the
death
knell
to
a
transaction
and
inhibit
Congress'
goal
of
encouraging
redevelopment
of
impaired
property
under
the
Brownfields
law.
For
these
reasons,
interviews
with
neighboring
property
owners
or
occupants
should
not
be
mandatory
but
should
be
an
option
available
to
the
environmental
professional
where
such
interviews
are
the
only
way
to
achieve
the
objective
and
performance
factors
of
AAI
as
outlined
in
proposed
sections
312.20(
d)
and
(
e).
It
appears
that
this
is
EPA's
intent
in
section
312.23(
d),
but
instead
of
drafting
that
section
to
track
the
language
and
structure
of
section
312.23(
c),
which
unambiguously
expresses
that
intent,
EPA
changed
the
structure
of
section
312.23(
d)
so
that
a
court
passing
on
a
claim
of
CERCLA
liability
protection
might
infer
that
the
lack
of
paralled
structure
in
the
two
subsections
was
intended
by
EPA
to
prescribe
different
criteria
for
determing
when
interviews
with
neighbors
of
abandoned
properties
was
required.
To
avoid
possible
misunderstanding,
US
WAG
urges
EPA
to
track
the
language
and
structure
of
section
312.23(
c)
by
revising
section
312.23(
d)
to
read:

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
400
access
to
the
subject
property,
the
environmental
professional's
inquiry
should
include,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
of
§
312.20(
d)
and
(
e),
interviewing
one
or
more
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
uses
of,
or
releases
at,
such
abandoned
properties.

Response:
In
the
final
rule,
as
in
the
proposed
rule,
the
requirement
to
interview
one
or
more
neighboring
property
owners
in
those
instances
where
the
subject
property
is
determined
to
be
abandoned,
is
not
subject
to
the
condition
proposed
by
the
commenter
(
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors).
The
rule
provides
that
in
all
instances
of
abandoned
properties,
an
attempt
must
be
made
to
locate
and
interview
a
neighboring
property
owner.
The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
standards
can
not
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
9
Excerpt
Text:
We
suggest
the
Agency
consider
revising
the
language
in
§
312.23(
d).
The
current
wording
mandates
that
an
interview
must
be
performed
in
the
case
of
abandoned
properties.
We
present
the
following
scenarios
for
consideration:
There
may
be
no
owners/
occupants
in
a
position
to
have
observed
the
property's
past
and
present
uses
Interviewees
may
decline
to
participate
in
the
process
or
fail
to
respond
in
a
manner
within
the
time
constraints
for
the
inquiry
The
interviewee
may
not
be
credible
for
a
multitude
of
reasons
or
the
information
provided
may
not
be
reliable
in
the
opinion
of
the
environmental
professional.

In
a
related
matter,
please
note
that
energy
providers
have
the
authority
to
take
private
property
401
to
provide
electric
and
gas
services
to
the
public.
There
is
a
similar
nature
of
conflict
with
the
proposed
rule
as
applied
to
both
abandoned
properties
and
private
properties
acquired
to
continue
reliable
electric
and
gas
service
to
the
public.
The
Agency
is
urged
to
take
these
points
into
consideration
and
make
appropriate
revisions
in
the
language
of
the
regulation.

Response:
The
final
rule
only
requires
that
neighboring
property
owners
be
interviewed
in
those
cases
where
the
subject
property
is
abandoned.
The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

EPA
recognizes
that
some
individuals
may
not
be
willing
or
able
to
provide
necessary
information
to
assist
the
environmental
professional
in
meeting
the
objectives
and
performance
standards
of
the
final
rule.
If
necessary
information
to
meet
the
objectives
and
performance
standards
can
not
be
obtained
during
the
conduct
of
interviews,
the
lack
of
information
and
inability
to
interview
owners
and
occupants
should
be
noted
in
the
written
report
as
a
data
gap.
In
addition,
the
significance
of
the
missing
information
to
the
environmental
professional's
ability
to
render
an
opinion
with
regard
to
the
environmental
conditions
of
a
property
must
be
noted.

EPA
believes
that
the
benefit
of
obtaining
information
with
regard
to
previous
ownerships
and
uses
of
the
subject
property
from
these
individuals
outweighs
the
potential
burdens
of
disclosing
that
the
subject
property
may
be
purchased.
The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
Therefore,
prospective
property
owners
and
environmental
professionals
should
conduct
the
inquiries
with
the
goal
of
obtaining
as
much
information
as
possible
regarding
the
past
uses
and
ownerships
of
a
property.
In
the
case
of
abandoned
properties,
owners
and
occupants
of
neighboring
properties
may
be
valuable
sources
of
information.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
9
Excerpt
Text:
­
The
proposed
requirements
to
interview
owners
or
occupants
of
neighboring
properties
in
the
case
of
abandoned
properties.

­­
Abandoned
properties
represent
a
valid
issue
in
accounting
for
environmental
liabilities.
402
However,
requiring
assessors
to
interview
one
or
more
owners
or
occupants
of
neighboring
or
nearby
properties
is
unreasonable.
These
owners
or
occupants
are
under
no
obligation
to
provide
information
to
the
assessor
and
it
is
our
experience
that
the
availability
of
adjacent
owners
or
occupants
varies
depending
on
the
type
of
property.
While
it
is
likely
that
an
abandoned
property
in
a
city
or
town
will
have
adjacent
owners
or
operators
that
can
be
reasonably
contacted,
such
is
not
the
case
in
rural
and
agricultural
communities.
Therefore,
this
proposed
requirement
represents
an
unreasonable
burden
to
the
assessor.

Response:
Please
see
response
to
comment
0373,
excerpt
9.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
3
Excerpt
Text:
Where
the
subject
property
is
abandoned,
Proposed
Rule
§
312.23(
d)
requires
at
least
one
interview
with
a
past
or
present
owner,
operator
or
major
occupant
of
a
neighboring
property
who
may
have
observed
the
operations
of
the
subject
property.
Neighbors
may
also
have
to
be
interviewed
"
to
the
extent
practicable"
to
determine
the
potential
for
a
release
at
the
subject
property,
the
ownership
or
use
of
the
subject
property
and/
or
the
remedial
activities
to
address
past
or
on­
going
releases
at
the
subject
property.

Neighbor
interviews
should
be
optional
at
the
discretion
of
the
EP
as
determined
by
the
EP's
need
for
additional
data
to
adequately
assess
the
subject
site.
For
instance,
where
governmental
agency
records
or
other
reliable
sources
document
contamination,
investigation
and/
or
remediation
at
the
subject
site,
the
EP
should
not
be
obligated
to
interview
neighbors
just
to
satisfy
the
AAI
Rule.
This
is
especially
true
when
prospective
owners
have
legitimate
business
concerns
that
such
neighbor
interviews
may
impede
the
property
transfer,
inflate
property
costs,
draw
unwanted
publicity
or
complicate
subsequent
development
or
redevelopment
plans.

Response:
Please
see
response
to
comment
0373,
excerpt
9.

Commenter
Organization
Name:
Mittelholzer,
Michael
Comment
Number:
PM­
0207­
0002
Excerpt
Number:
3
Excerpt
Text:
Under
Section
312.23,
"
Interviews
with
past
and
present
owners,
operators
and
occupants,"
NAHB
fully
supports
and
recognizes
the
need
to
accurately
assess
the
use
of
a
property.
NAHB
is
concerned
that
the
additional
requirements
found
under
this
section,
specifically
312.23(
d),
entitled
"
Additional
Requirements
for
Abandoned
Properties,"
which
is
specifically
an
obligation
to
locate
and
interview
neighbors
of
abandoned
properties
in
addition
to
all
the
other
requirements
found
under
312.23,
such
as
reviewing
all
historical
sources,
reviewing
all
403
environmental
means
on
the
property,
and
reviewing
all
state
and
local
records
on
the
property.

Our
concern
specifically,
though,
is
just
with
312.23(
d)
in
that
we
feel
it
is
an
additional
administrative
burden
for
perspective
purchasers
that
could
have
the
unintended
impact
of
discouraging
redevelopment
of
abandoned
properties
that,
frankly,
are
already
challenging
properties
to
redevelop.

Response:
Please
see
response
to
comment
0373,
excerpt
9.
404
3.2.2
The
Agency
Should
Clarify/
Modify
the
Language
Pertaining
to
"
Unauthorized
Use"
and
"
Uncontrolled
Access"
of
the
Subject
Property
Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
2
Excerpt
Text:
Lastly,
further
definition
should
be
provided
with
respect
to
the
terms,
"
evidence
of
potential
unauthorized
uses
of
the
subject
property,"
or
"
evidence
of
uncontrolled
access
to
the
subject
property."
[
emphasis
added].
Does
evidence
of
"
homeless
people"
occupying
the
site
constitute
evidence
of
potential
unauthorized
use?
If
so,
what
environmental
harm
would
result
from
such
evidence?
Indications
that
some
neighboring
kids
have
thrown
soda
bottles
or
even
beer
bottles
onto
the
subject
property­
does
this
constitute
evidence
of
uncontrolled
access
and
thus
triggering
a
requirement
to
talk
to
abutters?
If
you
are
going
to
have
this
requirement,
we
recommend
modifying
the
language
such
that
evidence
of
unauthorized
use
or
uncontrolled
access
must
also
be
tied
to
observable
evidence
of
a
release
or
threat
of
a
release
of
a
regulated
substance.
Without
the
latter,
there
should
not
be
an
obligation
to
talk
to
abutters
or
neighbors.

Response:
The
final
rule
defines
an
abandoned
property
as
a
Aproperty
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.@
Evidence
of
homeless
people
occupying
a
property
would
not
in
itself
be
a
good
indication
that
the
property
is
abandoned.
An
inability
to
identify
or
locate
a
current
owner
for
the
property
would
be
a
better
indication
that
the
property
is
abandoned.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
7
Excerpt
Text:
In
§
312.23
"
Interview
with
past
and
present
owners,
operators,
and
occupants"
(
d),
the
terms
used
to
define
abandoned
properties,
"
unauthorized
uses"
and
"
uncontrolled
access,"
are
vague
and
are
open
to
a
broad
range
of
interpretation.
The
terms
should
be
explained
in
the
preamble
or
qualified
as
represented
in
this
suggested
change:

­(
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
that
reflect
conditions
indicative
of
a
release
or
threatened
release
of
hazardous
substances
on,
at,
in,
or
to
the
subject
property
or
evidence
of
uncontrolled
access
to
the
subject
property,
the
EP's
inquiry
must
include
interviewing
one
or
more
(
as
necessary)
owners
or
occupants
of
neighboring
or
nearby
properties
from
which
it
appears
possible
to
have
observed
uses
of
or
releases
at
such
abandoned
properties
for
the
purpose
of
gathering
information
necessary
to
achieve
the
objectives
and
performance
405
factors
of
§
§
312.20(
d)
and
(
e)."

Rationale:
­
Unauthorized
uses
could
be
interpreted
as
loosely
as
burning
trash
and
uncontrolled
access
could
be
applicable
to
every
property
without
a
fence.
At
a
minimum,
the
preamble
should
clarify
or
give
examples
of
"
unauthorized
uses"
and
"
uncontrolled
access."
­
Interviewing
neighbors
at
great
frequencies,
as
this
current
language
would
require,
would
unnecessarily
increase
the
cost
of
the
assessments,
alarm
neighbors,
and
prematurely
expose
a
user's
interest
in
the
subject
property.

Response:
The
final
rule
defines
an
abandoned
property
as
a
Aproperty
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.@
EPA
disagrees
with
the
commenter's
suggestion
to
qualify
the
definition
of
abandoned
property
as
a
property
that
reflects
"
conditions
indicative
of
a
release
or
threatened
release
of
hazardous
substances."
Including
such
a
condition
in
the
definition
would
require
an
environmental
professional
to
determine
the
potential
environmental
conditions
of
a
property
before
he
or
she
finished
conducting
the
inquiries.
Evidence
of
potential
releases
at
a
property
would
not
in
itself
be
a
good
indication
that
the
property
is
abandoned.
An
inability
to
identify
or
locate
a
current
owner
for
the
property
would
be
a
better
indication
that
the
property
is
abandoned.
406
3.3
Review
of
Historical
Sources
of
Information
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
6
Excerpt
Text:
The
criteria
regarding
historical
data
review
seems
to
be
appropriate.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
requirement.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
8
Excerpt
Text:
312.24
Reviews
of
historical
sources
of
information
We
support
this
section.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
requirement.

Commenter
Organization
Name:
Holm,
Wright,
Hyde,
&
Hays
Comment
Number:
0323
Excerpt
Number:
2
Excerpt
Text:
Comment
2:
Irrespective
of
the
above,
to
accomplish
the
expanded
review
of
historical
sources
of
information,
there
will
be
an
increase
in
the
time
required
for
the
proposed
activity.
For
instance,
agricultural
use
of
land
becomes
important
for
the
historical
time
periods
where
it
was
likely
that
pesticides
were
used.

The
federal
National
Resource
Conservation
Service
(
NRCS)
provides
historical
information
on
crops
typically
grown
in
most
counties
in
the
country.
It
would
be
very
useful
if
a
compendium
of
pesticide
use
by
crop
over
time
could
be
provided.
This
would
provide
valuable
input
to
the
environmental
professional
and
allow
him
or
her
(
or
designee)
to
spend
0.75
hour
versus
1.5
hour
to
interview
the
NRCS
and
former
property
owners
or
other
knowledgeable
people
in
the
cases
where
agricultural
activities
of
concern
preceded
other
development
over
the
last
century
or
so.

Recommendation:
Develop
a
compendium
of
historic
pesticide
availability,
typical
usage
on
crops
over
time,
half
life
of
the
active
ingredient
and
other
pertinent
information.
407
Response:
The
development
of
a
compendium
of
historic
pesticide
availability,
typical
usage
on
crops
over
time,
half
life
of
the
active
ingredient
and
other
pertinent
information
for
all
properties
across
the
country
is
beyond
the
scope
of
the
current
rule.
Interviews
with
current
and
past
occupants
of
the
subject
property
and
interviews
with
local
government
officials
may
be
good
sources
of
information
regarding
the
types
of
pesticides
that
were
previously
used
at
the
property.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
11
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
NEW
­
3.5
­
Review
of
federal,
state,
tribal,
and
local
government
records
Excerpt
Text:
1)
FAA
believes
that
EPA
should
allow
the
EP
flexibility
to
determine
whether
title
history,
fire
insurance
maps,
institutional
controls,
environmental
liens,
and
other
requirements
are
applicable
at
the
subject
property.
For
many
FAA
site
assessments,
these
sources
are
not
applicable,
especially
to
remote
properties
in
Alaska
and
other
low
population
areas.
Potential
contamination
from
adjoining
properties
in
such
instances
is
non­
existent.
FAA
suggests
that
EPA
should
allow
more
flexibility
in
the
contents
of
an
AAI
for
properties
in
remote,
undeveloped,
and
unpopulated
areas.

Response:
The
final
rule
does
not
require
that
any
specific
type
of
historic
information
be
collected
or
consulted
when
reviewing
historical
information
about
a
property.
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
7
Excerpt
Text:
Proposed
Section
312.24:
DEQ
believes
that
relying
on
historical
reports
from
a
site
may
be
problematic.
A
document
may
state
that
no
historical
information
is
known
about
the
site
but
with
a
little
more
investigation,
additional
information
can
be
found.
If
a
person
solely
relies
on
the
information
found
in
the
previous
report,
this
could
perpetuate
errors
or
misunderstandings.
DEQ
believes
that
for
AAIs,
a
person
must
conduct
independent
historical
research
investigation
and
not
rely
on
past
documents.

Response:
The
final
requirements
for
reviewing
historical
documents
allow
the
prospective
landowner,
grantee,
and
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
408
accepted
good
commercial
and
customary
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.
EPA
agrees
with
the
commenter
that
there
will
be
situations
where
previously
conducted
AAI
reports
are
not
the
best
source
of
historical
information
about
a
property.
When
reviewing
and
using
previously
prepared
AAI
reports,
the
environmental
professional
should
use
his
or
her
best
judgment
in
determining
the
quality
and
reliability
of
the
information
provided
in
the
report.
In
addition,
the
final
rule
requires
that
information
used
from
previous
reports
be
updated
if
it
was
collected
more
than
one
year
or
180
days
prior
to
the
date
of
acquisition
of
the
property
(
depending
upon
what
type
of
information
is
being
used).

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
23
Excerpt
Text:
312.24(
a):
Street
(
aka
criss­
cross
or
reverse)
directories
are
a
very
valuable
source
of
information
and
should
be
included
in
the
list
of
historical
documents.

Response:
EPA
thanks
the
commenter
for
the
input.
It
is
not
possible
for
EPA
to
list
in
the
regulation
every
type
of
information
that
may
potentially
useful
for
complying
with
the
requirements
of
the
final
rule.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
24
Excerpt
Text:
312.24(
b):
What
is
a
"
governmental
purpose?"
Park?
Forest?
Wilderness
area?

Response:
By
"
government
purpose"
the
Agency
means
a
property
that
is
owned
or
operated
by
a
government
entity
for
use
by
the
government
entity
or
for
a
use
that
serves
the
needs
or
purpose
of
the
government
entity.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
10
Excerpt
Text:
­
The
proposed
standards
for
reviews
of
historical
sources
of
information.

­­
The
review
of
historical
sources
of
information
is
the
key
component
of
the
all
appropriate
inquiry
process.
Without
an
adequate
characterization
of
site
history,
accurate
assumptions
about
409
environmental
liability
are
not
feasible.
However,
Intertox
is
opposed
to
a
rule
that
would
not
require
any
specific
type
of
historic
information
be
collected.
Without
at
least
some
guidance,
future
environmental
site
assessments
will
suffer
from
a
lack
of
data.
We
recommend
that
some
suggested
sources
of
information
be
included
in
the
final
rule.
For
instance,
Sanborn
fire
insurance
maps,
R.
L.
Polk
or
similar
city
directories
(
beginning
with
reverse
directories
1930­
onward),
aerial
photographs
(
at
least
one
from
each
decade
from
the
1940s
onward),
and
topographic
maps
are
historic
resources
that
have
proven
since
1986
to
be
beneficial
sources
of
information
in
characterizing
a
site's
history:

The
reason
we
believe
at
least
some
guidance
be
provided
is
because
the
majority
of
professionals
conducting
environmental
site
assessments
have
no
historical
research
training
and
to
leave
this
important
task
to
an
engineer
or
geologist
without
some
level
of
recommendation
will
likely
result
in
poorly
researched
site
histories
and,
correspondingly,
assumptions
of
environmental
liability
that
are
potentially
unfounded.

Response:
The
final
rule
at
312.24(
a)
provides
several
examples
of
historical
sources
of
information
that
may
be
consulted.
These
include
aerial
photographs,
fire
insurance
maps,
building
department
records,
chain
of
title
documents,
and
land
use
records.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
20
Other
Sections:
NEW
­
5
­
Comments
on
the
Paperwork
Reduction
Act
Excerpt
Text:
­
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.

­­
While
Intertox
does
not
have
any
comment
about
U.
S.
EPA's
burden
estimates
we
do
believe
that
the
use
of
automated
collection
techniques
represents
information
liability
to
the
environmental
professional.
It
is
common
practice
for
environmental
consultants
to
use
several
national
companies
to
conduct
review
of
government
records.
When
these
services
first
became
available
in
the
late
1980s
the
quality
was
suspect,
however,
these
searches
are
now
reliable
and
accurate.
What
we
are
concerned
with
is
the
use
of
these
companies
by
environmental
professionals
for
reviewing
historical
sources
of
information.
For
instance,
city
directory
research,
recorded
title
searches,
and
interviews
with
local
government
officials
are
offered
by
these
companies.
It
is
our
experience,
especially
with
recorded
title
searches,
that
the
effort
expended
by
these
companies
is
insufficient
to
adequately
characterize
a
site's
history.
We
have
seen
in
particular,
poorly
conducted
title
searches
and
city
directory
searches
that
are
incomplete.
In
addition,
only
the
environmental
professional
should
make
contact
with
local
government
officials,
as
they
know
better
than
anyone
else
the
questions
that
need
to
be
asked
relative
to
their
subject
property.
Accordingly,
we
recommend
that
automated
collection
techniques
not
be
410
utilized
to
acquire
historical
sources
of
information.

Response:
The
final
requirements
for
reviewing
historical
documents
allow
the
prospective
landowner,
grantee,
and
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
accepted
good
commercial
and
customary
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.
EPA
agrees
with
the
commenter
that
there
will
be
situations
where
data
base
search
results
provided
by
independent
consultants
or
companies
are
not
the
best
source
of
historical
information
about
a
property.
When
reviewing
and
using
such
information,
the
environmental
professional
should
use
his
or
her
best
judgment
in
determining
the
quality
and
reliability
of
the
information
provided.

Commenter
Organization
Name:
RT
Environmental
Services
Comment
Number:
0406
Excerpt
Number:
2
Excerpt
Text:
There
is
also
little
guidance
provided
on
availability
from
the
Agency
of
historical
information
that
preparers
should
rely
on
to
determine
the
nature
and
extent
of
historical
manufacturing
activity
which
is
or
could
have
been
conducted
on
subject
properties.

Response:
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.
Local
government
officials
also
may
be
valuable
sources
of
information
on
historical
uses
of
properties.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
6
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
Excerpt
Text:
The
need
for
a
chain
of
title
search
and
a
property
lien
search,
although
not
specifically
called
for
the
proposed
rule,
will
be
necessary
to
establish
the
past
ownership
and
use
to
the
degree
called
for
under
AAI.
The
average
cost
for
a
chain
of
title
is
between
$
250
to
$
500.
This
is
a
tremendous
cost
addition
on
a
percentage
basis
for
a
Phase
I
and
typically
yields
no
useful
information
as
to
potential
environmental
issues
to
a
property.

Response:
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
Although
a
chain
of
title
search
may
provide
valuable
information
on
previous
ownership
and
uses
of
a
property,
the
prospective
landowner,
grantee,
and
environmental
professional
may
be
able
to
find
this
information
from
other
sources
(
e.
g.,
411
interviews
with
current
and
past
owners,
other
government
records).

Commenter
Organization
Name:
MPCA
Comment
Number:
0437
Excerpt
Number:
1
Excerpt
Text:
The
Minnesota
Pollution
Control
Agency
staff
has
reviewed
the
proposed
All
Appropriate
Inquiry
(
40CFR
Part
312)
and
would
like
to
comment
on
§
3.12.24
which
would
require
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
purpose.

The
MPCA
staff
is
concerned
that
this
statute,
as
written,
would
not
be
inclusive
of
unpermitted
disposal
sites
where
no
other
activity
besides
disposal
was
historically
conducted
on
the
property.
The
MPCA
staff
suggests
that
disposal
sites
be
added
to
this
statute
since
disposal
does
not
seem
to
be
included
or
fit
into
any
of
the
categories
(
ie.,
residential,
agricultural,
commercial,
industrial
or
government)
listed
in
the
proposed
statute.

An
alternative
might
be
to
require
the
review
of
aerial
maps
of
the
subject
property
and
areas
in
close
proximity.
It
is
likely
that
a
review
of
these
aerial
photos
will
not
only
show
developed
areas
and
public
roads
but
also
disposal
sites
Response:
EPA
disagrees
with
the
commenter.
The
use
of
a
property
for
the
purpose
of
waste
disposal
could
be
included
in
several
of
the
mentioned
areas,
including
commercial,
industrial
and
government
use,
depending
on
the
particular
circumstances.
In
addition,
the
final
rule,
at
312.25(
b)(
2)
requires
reviews
of
government
records
of
activities,
conditions,
or
incidents
likely
to
cause
or
contribute
to
releases
or
threaten
releases
of
hazardous
substances,
including
landfill
and
other
disposal
unit
location
records
and
permits.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
2
Excerpt
Text:
Section
II,
E,
3.
Innocent
Landowner.
Reviews
of
historical
sources
lists
"
chain
of
title
documents"
first,
from
which
I
infer
that
this
is
an
important
source.
In
fact
a
chain
of
title
seldom
includes
relevant
information
such
as
tenancy
or
tenant
activities.
Even
identifying
past
owners
may
be
of
little
value.
Identifying
Acme,
Inc.
in
the
chain
is
of
little
value
(
unless
you
are
after
Wiley
Coyote).
I
recognize
the
"
chain
of
title
documents"
is
listed
in
the
Act,
but
place
it
last
in
the
preamble
and
add
better
sources
as
examples,
e.
g.,
street
(
criss­
cross)
directories.
412
Response:
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
Although
a
chain
of
title
search
may
provide
valuable
information
on
previous
ownership
and
uses
of
a
property,
the
prospective
landowner,
grantee,
and
environmental
professional
may
be
able
to
find
this
information
from
other
sources
(
e.
g.,
interviews
with
current
and
past
owners,
other
government
records).
In
the
final
rule
language
at
312.24(
a)
chain
of
title
documents
are
not
listed
first
in
the
list
of
suggested
historical
documents.
413
3.3.1
Scope
of
the
Review
­
How
far
Back
in
Time/
History
Historical
Records
Must
Be
Reviewed
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
6
Excerpt
Text:
Sec.
312.24(
b)
requires
a
review
of
historic
records
"
cover[
ing]
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."
Even
title
searches
are
considered
reliable
if
they
go
back
50
years.
In
the
hunt
to
determine
the
environmental
condition
of
a
property,
EPA
is
requiring
prospective
purchasers
to
hire
historians.
An
historic
records
search
reaching
back
no
more
than
50
years
is
reasonable;
to
the
dawn
of
civilization
on
the
property
is
not.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
Despite
the
concerns
raised
by
some
commenters
regarding
the
scope
of
the
historical
records
review,
we
assert
that
the
scope
of
the
requirements
in
the
final
rule
(
as
did
the
scope
of
the
proposed
requirements)
reflect
congressional
intent
as
provided
in
CERCLA
'
101(
35)(
B)(
iii).
The
statutory
criterion
provides
that
all
appropriate
inquiries
include
Areviews
of
historical
sources...
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

Commenter
Organization
Name:
Zutz
Comment
Number:
0104
Excerpt
Number:
5
Excerpt
Text:
This
section
requires
that
historical
documents
and
records
be
reviewed
"
from
the
time
the
property
was
first
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes".

We
take
exception
to
this
requirement.
Consider
these
examples:
the
first
residential
use
of
the
property
for
many
parcels
would
be
Indian
settlement;
the
first
agricultural
use
of
the
land
may
have
been
prior
to
European
settlement
in
the
1600s
(
1860s
or
later
for
the
upper
midwest);
and
414
for
US
land
within
the
Louisiana
Purchase,
the
first
governmental
use
of
the
land
would
begin
in
18
02.
There
would
be
a
significant
lack
of
documents
of
these
uses.

The
historical
source
review
requirements
should
be
broadened
to
a
review
of
reasonably
available
documents.

Response:
Please
see
response
to
comment
0095,
excerpt
6.

Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
3
Excerpt
Text:
How
far
back
should
one
research
should
be
left
up
to
the
site
situation,
the
available
data,
and
the
judgment
of
the
environmental
professional.
As
a
guide
the
ASTM
standard
is
adequate.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
3
Excerpt
Text:
The
new
proposed
standards
should
adopt
the
same
requirements
for
historical
research
as
the
current
ASTM
requirements.
For
example,
if
the
EP
only
looks
at
historic
aerial
photographs,
does
that
mean
that
the
remaining
historical
documents
are
considered
as
"
data
gaps"
and
need
to
be
addressed
as
such
in
the
Phase
I
ESA?
Keeping
it
the
same
as
the
current
ASTM
standard
reduces
potential
confusion
as
to
what
is
enough
historical
research
Response:
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
The
environmental
professional
may
use
his
or
her
judgment
in
determining
what
particular
documents
may
provide
the
best
information
on
historical
ownerships
and
uses
of
a
property.
The
types
of
documents
listed
in
the
regulations
are
only
415
suggestions
of
the
types
of
documents
that
may
provide
useful
information.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
3
Excerpt
Text:
R&
W
requests
that
any
promulgated
rules
contain
more
specific
guidance
or
requirements
for
historical
research,
that
is,
if
the
EPA
continues
with
this
rule
making
process.

Response:
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
The
final
rule
allows
the
environmental
professional
to
use
his
or
her
judgment
in
determining
what
particular
documents
may
provide
the
best
information
on
historical
ownerships
and
uses
of
a
property.
The
final
rule
does
provide
a
list
of
suggested
documents
that
may
provide
useful
information.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
14
Excerpt
Text:
The
proposed
§
312.24(
b)
requires
that
"
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."
It
then
states
that
the
EP
" 
may
exercise
professional
judgement
in
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records."
Without
a
provision
for
the
likelihood
that
individual
records
will
yield
materially
useful
information,
this
proposed
rule
is
not
workable.
For
instance,
chain
of
title
documents
may
identify
the
owner
of
a
property
for
well
over
100
years,
but
these
documents
do
not
typically
document
the
use
of
the
property.
Obviously,
the
historical
use
of
the
property
is
much
more
important
to
the
AAI
and
Phase
I
ESA
process.
R&
W
requests
that
the
EPA
include
a
likelihood
of
usefulness
condition
for
the
historical
source
information
gathering
process.
This
has
made
the
E
1527­
00
process
much
more
efficient.

Response:
The
usefulness
of
any
one
particular
document
is
dependent
upon
many
circumstances
including
the
quality
of
the
information
included
in
the
document
and
how
dependent
the
user
is
upon
that
particular
source
of
information
as
the
primary
or
only
source
of
historical
information.
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
The
final
rule
allows
the
environmental
professional
to
use
his
or
her
judgment
in
determining
what
particular
documents
may
provide
the
best
information
on
historical
ownerships
and
uses
of
a
property.
The
final
rule
does
provide
a
list
of
suggested
documents
that
may
provide
useful
information.
416
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
15
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Furthermore,
the
proposed
§
312.24(
b)
does
not
limit
the
duration
of
investigation
for
historically
unimproved
properties.
The
E
1527­
00
requirement
to
investigate
such
properties
back
to
1940
is
more
economically
efficient
and
poses
virtually
no
threat
of
not
identifying
conditions
posing
material
environmental
risk.
This
has
made
the
E
1527­
00
process
much
more
efficient.
The
Economic
Impact
Analysis
failed
to
address
the
increased
requirements
over
the
E
1527­
00
requirements.
Therefore,
it
understates
the
impact
of
the
Proposed
Rules.
R&
W
requests
that
the
EPA
further
clarify
the
historical
research
requirement
to
avoid
needless
historical
investigation
of
vacant
property
(
prior
to
1940).
In
the
absence
of
such,
R&
W
requests
that
the
EPA
provide
a
realistic
economic
assessment
of
this
section
of
the
Proposed
Rules.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

In
the
case
of
properties
that
show
evidence
of
never
having
structures
or
improvements,
the
environmental
professional
should
use
his
or
her
judgment
as
to
how
far
back
in
time
records
need
to
be
searched
to
be
reasonably
certain
that
no
structures
or
improvements
were
placed
on
the
property
or
there
is
no
evidence
of
an
ownership
or
use
that
would
have
potentially
caused
a
release
of
hazardous
substances
at
the
property.
The
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.
Given
the
similarities
of
the
requirements,
EPA
believes
that
the
incremental
cost
for
conducting
the
search
of
historical
records
will
be
the
same
for
the
final
rule
as
it
was
under
the
ASTM
standard.

Commenter
Organization
Name:
Holm,
Wright,
Hyde,
&
Hays
Comment
Number:
0323
Excerpt
Number:
1
Excerpt
Text:
Comment
1:
The
proposed
regulation
says
"
Historical
documents
and
records
reviewed
MUST
417
(
emphasis
added)
cover
a
period
of
time
as
far
back
in
the
history
of
the
subject
project
as
it
can
be
shown
that
the
property
contained
structures "
but
then
goes
on
to
place
on
the
environmental
professional
the
responsibility
to
"
exercise
professional
judgment"
as
to
how
far
back
to
go.
We
believe
that
using
the
more
stringent
approach
"
MUST"
will
either
become
an
unnecessary
point
of
contention
often
leading
to
litigation
or
create
a
slavish
(
and
more
expensive)
protocol.

Recommendation:
Change
"
MUST"
to
"
are
expected
to",
thereby
supporting
the
environmental
professional's
ability
to
exercise
judgment.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
The
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
14
Excerpt
Text:
The
Band
concurs
with
the
proposed
language
that
an
Environmental
Professional
may
exercise
his
or
her
professional
judgment
in
the
determination
of
how
far
back
to
research
historical
documents
and
records
given
the
availability
of
facts
at
the
time
of
the
inquiry.

Response:
Please
note
that
the
comment
slightly
misstates
the
meaning
of
the
rule
language.
The
final
requirements
for
reviewing
historical
documents
allow
the
purchaser
and
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
accepted
good
commercial
and
customary
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.
The
availability
of
facts
at
the
time
of
the
inquiry
is
not
the
determinative
factor.
Rather,
compliance
with
the
rule's
objectives
and
performance
factors
should
be
paramount.
418
Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
3
Excerpt
Text:
Section
312.24(
b)
requires
that
"
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."
The
Grand
Rapids
Area
Chamber
of
Commerce
recommends
that
a
specific
time
period
be
included
in
§
312.24(
b)
for
review
of
historical
sources
of
information.
Specifically,
the
Chamber
recommends
that
the
period
of
review
be
equal
to
the
period
of
review
under
the
current
ASTM
E
1527
standard.
The
period
described
in
the
proposed
§
312.24(
b)
would
increase
the
time
and
effort,
and
therefore
the
cost,
associated
with
historical
document
review
without
providing
any
real
benefit.
There
is
simply
no
indication
that
the
period
of
time
currently
set
forth
in
the
ASTM
E
1527
for
historical
document
review
is
in
any
way
inadequate
for
purposes
of
"
all
appropriate
inquiry."

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
The
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

Commenter
Organization
Name:
Potter
and
Adams
Comment
Number:
0351
Excerpt
Number:
5
Excerpt
Text:
This
proposed
section
requires
"
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."

This
requirement
is
unreasonable
as
it
will
require
the
prospective
purchasers
to
review
the
419
property
history
back
to
its
original,
undeveloped
condition.
In
certain
parts
of
the
country,
this
may
require
researchers
to
sort
through
several
hundred
years
of
historical
documents
to
reach
the
first
development.
In
addition,
the
majority
of
solvents
and
pesticides
that
are
usually
the
chemicals
of
concern
at
these
properties
were
not
developed
and/
or
widely
used
until
the
20th
century.

A
suggested
alternative
to
this
language
is
"
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.
The
documents
and
records
must
be
reasonably
ascertainable
and
the
historical
period
reviewed
should
not
exceed
the
year
1900
unless
the
environmental
professional
determines
that
additional
review
is
required
to
achieving
the
objectives
and
performance
factors
of
Section
312.20(
d)
and
(
e)."

An
additional
suggestion
is
to
add
the
ASTM
E
1527­
00
definitions
of
reasonably
ascertainable,
publicly
available,
and
practically
reviewable
to
the
definitions
section
of
312.10.
These
definitions
will
support
the
professional
judgment
of
the
EP.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
The
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.

The
primary
objective
of
all
appropriate
inquiries
in
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
Prospective
property
owners
should
keep
in
mind
that
they
may
be
held
liable
for
releases
of
hazardous
substances
after
acquiring
a
property
if
they
do
comply
with
the
statutorily­
imposed
continuing
obligations.
The
performance
factors
included
in
the
final
rule
are
meant
to
provide
guidelines
for
the
conduct
of
the
inquiry
activities,
not
to
draw
absolute
boundaries
around
the
performance
of
the
data
collection
activities
by
specifically
defining
each
term.
It
is
in
the
prospective
property
owner's
best
interest
to
conduct
the
inquiries
as
thoroughly
as
possible
to
ensure
his
or
her
ability
to
comply
with
all
of
the
statutory
criteria
for
the
CERCLA
liability
protections.
The
Agency
has
embraced
the
performance
standard
approach
to
the
final
rule
because
it
allows
flexibility
for
a
variety
of
circumstances
and
unique
properties.
This
standard
does
not
lend
itself
to
bright­
line
420
interpretation.
Rather,
the
Agency
is
comfortable
allowing
for
judicial
interpretation
of
this
standard.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
12
Excerpt
Text:
­
iv.
Proposed
§
312.24
"
Reviews
of
Historical
Sources"
places
an
unreasonable
burden
on
developers
that
is
inconsistent
with
the
intent
of
the
Brownfields
Revitalization
Act.

EPA
concludes
that
ASTM
E1527'
s
treatment
of
historical
sources
does
not
comply
with
the
Brownfields
Revitalization
Act
because
"
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."
69
Fed.
Reg.
at
52575.
EPA
reasons
that
"
Congress
did
not
qualify
the
review
to
obvious
uses,
and
did
not
give
an
alternate
date
regarding
the
review."
Id.
The
preamble
further
explains
that
the
environmental
professional
must
"
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."
Id.
at
52561.

We
disagree
with
EPA's
construction
of
the
statute.
We
think
that
reading
the
statute's
requirement
of
historical
research
to
include
non­
obvious
uses
back
into
the
1600'
s
for
many
east
coast
properties
and
1800'
s
for
California
properties
is
not
reasonable.

The
Brownfields
Revitalization
Act
includes
a
historical
source
criteria
that
provides
for
review
of
historical
sources
"
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed."
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
III).
We
believe
that
EPA's
conclusion
that
the
statutory
"
previous
uses
and
occupancies"
criteria
cannot
be
interpreted
to
mean
"
obvious"
uses
and
occupancies
doesn't
adequately
consider
that
this
criteria
is
to
be
implemented
by
EPA
in
accordance
with
"
customary
standards
and
practices,"
42
U.
S.
C.
§
9601
(
35)(
B)(
i)(
I),
and
that
by
EPA's
own
reckoning
customary
practices
do
limit
the
identification
of
previous
uses
to
"
obvious"
uses.
To
require
identification
of
all
uses
and
occupancies
(
including
the
first
agricultural
use),
all
the
way
back
in
time
as
an
overly
literal
reading
of
the
criteria
would,
is
to
require
the
impossible.
Many
commercial
properties
are,
or
have
been,
commercial
rental
properties.
Some
of
these
are
demised
and
re­
demised
in
varying
configurations
to
accommodate
market
demand
for
various
size
tenancies
over
time.
Subleases
are
common.
Commercial
tenants
move
in
and
move
out.
Uses
change.
There
is
no
system
in
place
designed
to
capture
all
of
this
information,
yet
the
rule
seems
to
require
it.
Interpreting
the
Brownfields
Revitalization
Act
to
require
developers
to
jump
through
an
impossible
hoop
in
order
to
obtain
liability
protection,
when
the
purpose
of
the
legislation
is
to
protect
developers
from
liability,
produces
an
absurd
result.
Courts,
and
federal
agencies,
are
"
required
by
traditional
canons
of
statutory
construction
to
avoid
a
literal
interpretation
of
a
statute
that
leads
to
an
absurd
result."
Hurston
v.
Director,
Office
of
Workers,
989
F.
2d
1547,
1554
(
9th
Cir.
1993).
421
The
committee
surely
recognized
the
problem
because
the
text
of
the
proposed
rule
includes
the
qualification
"
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."
Proposed
§
312.24.
This
provision,
however,
contradicts
EPA's
reasoning
in
the
preamble
for
rejecting
ASTM
E1527
and
contradicts
the
explanation
of
this
section
provided
by
the
preamble.
It
also
does
not
address
the
problem
of
being
able
to
identify
all
uses
(
as
opposed
to
obvious
uses)
and
occupancies.
This
requirement,
too,
is
"
performance
based,"
so
any
records
of
nonobvious
uses
earlier
than
the
date
actually
searched
to
by
the
environmental
professional
are
fair
game
for
courtroom
second
guessing.

We
suggest
that
ASTM
E1527­
00
§
7.3
does
comply
with
the
Brownfields
Revitalization
Act.
We
also
believe
that
so
far
the
only
reasonable
interpretation
of
the
"
historical
use"
requirement
of
the
statute
considered
in
the
administrative
record
of
this
rulemaking
is
ASTM
E1527'
s
provision
for
searches
back
to
the
property's
"
obvious
first
developed
use."
We
also
believe
that
the
checklist
approach
of
ASTM
E1527­
00
§
7.3,
which
provides
a
purchaser
with
clarity
about
when
he
has
reached
the
end
of
his
All
Appropriate
Inquiry
task
is
the
only
reasonable
approach
to
historical
use
considered
in
this
administrative
record:
"
Whatever
history
of
previous
uses
is
derived
from
checking
the
standard
historical
sources
specified
[
herein]
shall
be
deemed
sufficient
historical
use
information
to
comply
with
this
practice."
Id.
There
is
no
room
for
"
performance
based"
courtroom
second
guessing.

We
hope
you
will
reconsider
this
requirement.

Response:
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)(
B)(
iii)
and
include:
" 
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."
(
40
CFR
Part
312,
p.
52547).
This
direction
from
Congress
is
specific
and
consists
of
no
limiting
language.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.
Bright­
line
guidelines
frustrate
the
purpose
of
performance
standards,
which
is
to
allow
for
flexibility
to
deal
with
unique
properties.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
8
422
Excerpt
Text:
The
Proposed
Rule
also
requires
seemingly
open­
ended
historic
record
reviews.
Traditional
title
searches
are
considered
reliable
if
they
go
back
50
years.
The
Proposed
Rule's
qualifiers­
from
the
time
the
property
contained
structures
or
was
first
used
for
residential,
agricultural,
commercial,
industrial
or
governmental
purposes
­
do
not
provide
an
appropriate
timeframe
within
which
historic
records
must
be
sought.
Government
agency
records
must
also
be
searched,
without
appropriate
qualification
as
to
the
timeframe
and
feasibility
of
these
searches.
In
some
cases,
the
type
of
records
the
Proposed
Rule
requires
searched
do
not
exist,
and
where
they
do
exist,
they
are
not
often
readily
available.
In
the
end,
with
the
requirement
that
the
EP
identify
data
gaps
in
the
report
and
comment
on
their
particular
significance
for
each
area
of
inquiry
under
each
standard,
EPA's
lack
of
commercially
appropriate
guidelines
for
record
searches
will
leave
potential
purchasers
with
little
or
no
assurance
that
following
the
AAIs
as
proposed
will
afford
them
liability
protection.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
The
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.
Bright­
line
guidelines
frustrate
the
purpose
of
performance
standards,
which
is
to
allow
for
flexibility
to
deal
with
unique
properties.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
9
Excerpt
Text:
In
§
312.24
"
Review
of
historical
sources
of
information"
(
b),
the
timeframe
that
the
historical
records
review
should
cover
is
vague
and
requires
clarification.
This
is
a
suggested
revision
to
provide
more
clarity:

­(
b)
"
Historical
documents
and
records
reviewed
must
cover
the
earliest
of
the
following
periods
of
time:
as
far
back
in
the
history
of
the
subject
property
as
it
can
be
shown
that
the
property:

­(
i)
from
when
the
subject
property
first
contained
structures,
or
423
­(
ii)
from
when
the
time
the
subject
property
was
first
used
for
residential,
agricultural,
commercial,
industrial,
or
governmental
purposes,
or
­(
iii)
from
1940
in
the
case
of
perceivably
undeveloped
properties."

Rationale:
­
The
way
the
language
is
currently
written,
there
is
no
guidance
to
prevent
the
EP
from
reviewing
historical
records
from
the
1700s.
ASTM
E­
1527­
00'
s
Section
7.3
(
Historical
Use
Information)
has
a
clear
standard
and
good
examples
regarding
properties
developed
in
the
1700s.
EPA
should
consider
including
similar
examples
in
the
preamble
to
this
regulation
and
clarify
which
of
those
examples
would
require
the
EP
to
document
a
"
data
gap."(
See
Preamble
for
AAI
Proposed
Rule
at
p.
52562.)

Response:
Please
see
response
to
comment
0403,
excerpt
8.

Commenter
Organization
Name:
Dannatt,
Georgina
Comment
Number:
PM­
0359­
0004
Excerpt
Number:
4
Excerpt
Text:
My
last
area
of
comment
is
regarding
how
far
back
an
inquiry
should
go.
Currently,
ASTM
1527
standard
calls
for
inquiries
to
go
back
to
1940
or
first
developed
use,
whichever
one
is
earlier.
In
over
half
the
Phase
One
reports
I
review,
this
standard
is
not
met,
with
research
sometimes
only
going
back
to
the
1960s
or
'
70s.

Sometimes
a
consultant
is
relying
on
aerial
photographs
as
the
primary
historical
resource,
and
aerials
are
not
available
for
an
early
period.
Fire
insurance
maps
and
city
directories
may
or
may
not
cover
the
site.
The
consultant
does
not
try
to
locate
another
source
of
information.
An
alternative
to
historical
sources,
such
as
city,
building,
or
tax
records
and
topographic
maps
that
may
go
back
to
the
1920s,
are
not
tapped
at
all.

When
ASTM
standards
were
developed
in
the
1990s,
a
look­
back
period
of
fifty
years
was
chosen.
This
date
is
a
good
indicator
of
when
many
industrial
chemicals
became
widely
used.
The
1940
date
is
still
valid
today.

I
believe
the
proposed
rule
should
be
prescriptive
in
calling
for
research
to
be
conducted
back
to
a
set
date,
rather
than
leaving
this
issue
up
to
the
provider.
It
cannot
be
ignored
that
pricing
factors
often
guide
research,
instead
of
technical
factors.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
The
historical
records
search
requirements
of
the
final
424
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

We
point
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.
Bright­
line
guidelines
frustrate
the
purpose
of
performance
standards,
which
is
to
allow
for
flexibility
to
deal
with
unique
properties.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
5
Excerpt
Text:
We
do
not
understand
EPA's
criticism
of
the
ASTM
E1527­
00
provision
requiring
"
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."
69
Fed.
Reg.
at
52575.
The
key
phrase
in
this
provision
is
"
whichever
is
earlier."
In
a
sense,
the
reference
to
1940
might
be
regarded
as
surplusage
because
if
the
first
developed
use
occurred
before
1940,
then
the
review
of
historical
sources
must
go
back
to
the
property's
obvious
first
developed
use
and
not
stop
at
1940.
On
the
other
hand,
if
the
property
was
first
developed
after
1940,
the
search
of
historical
records
back
to
1940
(
the
earlier
of
the
two
dates)
is
more
stringent
than
the
EPA
proposal,
hardly
a
basis
for
EPA
complaint.

We
also
believe
that
a
rigid
requirement
to
search
historical
records
to
the
property's
first
use
may
be
of
limited
value
and
prove
to
be
unnecessarily
costly.
If
the
property
was
first
developed
centuries
ago
­
for
example,
in
the
18
th
century
­
the
availability
and
usefulness
of
records
several
hundred
years
old
may
be
limited.
The
ASTM
standard
allows
the
environmental
professional
to
exercise
professional
judgment
about
searching
for
such
ancient
records.
See
ASTM
El527­
00
§
7.3.2.
EPA
should
adopt
a
similar
clarification
in
the
final
rule.

Response:
The
statutory
criteria
in
the
Brownfields
Amendments
require
that
reviews
of
historical
sources
of
information
be
conducted
to
Adetermine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.@
EPA
agrees
with
the
commenter
that
the
historical
records
search
requirements
of
the
final
rule
are
very
similar
to
the
requirements
of
the
ASTM
E1527­
2000
standard
at
7.3.2
that
require
all
obvious
uses
of
the
property
to
be
identified
from
the
present,
back
to
the
property's
obvious
first
use,
or
back
to
1940,
whichever
is
earlier.

EPA
points
out
that
the
final
rule
does
allow
the
environmental
professional
to
exercise
his
or
her
425
professional
judgment
Ain
context
of
the
facts
available
at
the
time
of
the
inquiry
as
to
how
far
back
in
time
it
is
necessary
to
search
historical
records@
to
ensure
that
the
inquiries
are
done
in
compliance
with
the
objectives
and
performance
factors.
We
believe
that
this
provides
sufficient
flexibility
to
allow
for
any
circumstances
where
due
to
the
availability
of
other
information
about
a
property
an
environmental
professional
may
conclude
that
a
comprehensive
search
of
historical
records
is
not
necessary
to
meet
the
objectives
and
performance
factors.
426
3.3.2
Review
of
Chain
of
Title
Documents
Should
Be
Made
a
Requirement
Commenter
Organization
Name:
Beaver,
Christine
Comment
Number:
0074
Excerpt
Number:
2
Excerpt
Text:
With
regard
to
the
proposal
that
it
be
left
to
the
professional
judgement
of
the
environmental
professional
to
determine
what
types
of
historical
information
to
collect,
it
is
my
opinion
that
the
chain
of
title
is
the
best
method
to
make
All
Appropriate
Inquiry
into
past
ownership
of
the
property
and
should
be
made
a
requirement.

Response:
The
final
rule
does
not
require
that
any
specific
type
of
historic
information
be
collected.
In
particular,
the
rule
does
not
require
that
persons
obtain
a
chain
of
title
document
for
the
property.
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.
Although
we
agree
with
commenters
that
chain
of
title
documents
may
serve
as
an
important
source
of
information
regarding
past
ownership
of
a
property,
it
may
not
be
the
only
source
of
this
information.
To
the
extent
that
chain
of
title
documents
are
otherwise
obtained
for
other
purposes
during
the
conduct
of
a
property
sale
or
transaction,
we
believe
that
these
documents
can
easily
be
made
available
to
the
environmental
professional
by
the
prospective
landowner.
Given
that
the
final
rule
requires
that
historical
records
be
searched
for
information
on
previous
uses
and
ownership
of
a
property
for
as
far
back
in
the
history
of
property
as
can
be
shown
that
the
property
contained
structures
or
was
first
used
for
residential,
agricultural,
commercial,
industrial
or
governmental
purposes,
if
chain
of
title
documents
are
the
best
and
most
easily
attainable
source
of
this
information,
we
assume
that
such
documents
will
be
obtained
and
used
by
the
environmental
professional.

Given
the
wide
variety
of
property
types
and
locations
to
which
the
final
rule
could
apply,
any
list
of
specific
documents
could
result
in
undue
burdens
on
many
prospective
landowners
and
grantees
due
to
difficulties
in
collecting
any
specific
document
for
any
particular
property
or
property
location.
Therefore,
the
final
requirements
for
reviewing
historical
documents
allow
the
prospective
landowner
or
grantee
and
the
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
accepted
good
commercial
and
customary
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.

Commenter
Organization
Name:
Perry,
Brett
Comment
Number:
0368
Excerpt
Number:
1
Excerpt
Text:
The
AAI
Rule
Should
Require
Historical
Chain
of
Title
Searching
to
Identify
Previous
427
Ownership
The
CERCLA
amendments
provide
the
following:
To
establish
that
the
defendant
had
no
reason
to
know 
the
defendant
must
have
undertaken,
at
the
time
of
acquisition,
all
appropriate
inquiry
into
the
previous
ownership
and
uses
of
the
property
consistent
with
good
commercial
or
customary
practice
in
an
effort
to
minimize
liability.
42
U.
S.
C
§
9601(
35)(
B)

Historical
chain
of
title
(
HCOT)
searching
provides
the
only
reliable
means
to
reliably
identify
"
previous
ownership."
The
proposed
rule,
however,
seems
to
allow
the
Environmental
Professional
(
EP)
with
the
discretion
to
identify
previous
ownership
from
historical
records
such
as
aerial
photographs,
fire
insurance
maps,
city
directories,
or
chains
of
title
to
satisfy
this
requirement.

Given
this
discretion,
in
light
of
the
requisite
skill
sets
of
an
EP
(
which
seems
to
include
geology
and
engineering
skills),
EPs
will
only
very
infrequently
conduct
HCOT
searches.
Indeed,
current
"
Phase
I"
practice
suggests
that
this
is
the
case.
Currently,
environmental
consultants
will
request
a
HCOT
only
upon
their
client's
request.
In
my
estimation
this
equals
about
one
percent
of
the
time,
with
the
remainder
believing
that
using
other
historical
sources
adequately
satisfies
the
requirement.

It
is
not
the
case
however
that
any
one
of
these
other
historical
sources
alone
can
satisfy
the
spirit
of
due
diligence
and
define
all
potentially
responsible
parties
who
have
owned
or
leased
a
particular
parcel
in
the
past.
By
listing
owners'
names
as
well
as
corresponding
deed
conveyances
and
leaseholds,
only
an
HCOT
can
do
this.

For
these
reasons
I
would
suggest
that
the
wording
of
the
proposed
rule
distinguish
the
two
very
different
terms
"
ownership"
and
"
uses"
of
the
property
and,
in
turn,
identify
historical
sources
suitable
for
each.
It
should
make
clear
the
fact
that
different
historical
records
have
different
strengths
in
identifying
the
needed
information,
and
particularly
how
a
HCOT
is
the
only
one
that
will
adequately
identify
all
prior
ownership
of
a
property.
The
eventual
AAI
final
rule
should
require
HCOT
searches
to
identify
previous
ownership.

Title
Insurance
Provided
Title
Searching
Versus
Historical
COT
Searches
It
is
important
to
understand
the
nature
of
what
a
HCOT
is,
and
what
it
is
not.
In
most
every
real
estate
transaction,
the
Title
Insurance
or
Escrow
Company
prepares
"
title
reports"
for
the
purpose
of
providing
an
insurance
policy
or
guarantee.
The
sole
use
of
a
title
commitment
is
for
the
issuance
of
insurance
to
protect
a
mortgage
holder
and
a
land
owner.
A
title
commitment/
examination
only
discloses
current
information
that
affects
the
property.
In
this
sense,
there
is
no
historical
information
investigated
or
reported.
Very
often
an
environmental
consultant
or
their
client
will
incorrectly
conclude
that
since
the
title
company
is
providing
a
report,
there
is
no
need
to
obtain
a
HCOT.
Suggested
HCOT
Criteria
for
the
AAI
Rule
428
In
addition
to
requiring
HCOT
searches,
the
AA
rule
should
identify
the
general
components
of
a
HCOT,
as
well
as
extra
elements
that
may
be
required
on
a
case­
by­
case
basis.
Each
COT
ought
to
identify
the
subject
property
by
site
address,
legal
description,
and
Assessor's
Parcel
Number
(
APN)
when
available.
The
current
owner(
s)
and
the
percentage
of
respective
interest
in
the
property
should
also
be
shown.
Each
conveyance
of
the
property
or
any
portion
thereof
should
be
listed
in
chronological
order,
and
include
the
name
of
the
parties
conveying
the
property
as
well
as
the
names
of
the
parties
to
whom
it
was
conveyed.
The
type
of
conveying
document
(
warranty
deed,
quit
claim
deed,
probate,
etc.)
should
be
listed
along
with
the
recording
agency's
file
number
of
that
document.
Recorded
surface
leases
should
be
identified
as
well,
since
this
identifies
tenants
whom,
as
much
as
the
owner,
may
be
a
potentially
responsible
party.
The
chronology
should
go
back
at
least
to
1940,
though
in
many
industrial
parts
of
the
country
it
would
be
appropriate
to
trace
ownership
back
further.
Other
items
that
may
be
included
as
requested
in
a
particular
instance
are
environmental
liens
or
institution
controls.
An
example
HCOT
has
been
attached
herein.

Response:
The
final
rule
does
not
require
that
any
specific
type
of
historic
information
be
collected.
In
particular,
the
rule
does
not
require
that
persons
obtain
a
chain
of
title
document
for
the
property.
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.
Although
we
agree
with
commenters
that
chain
of
title
documents
may
serve
as
an
important
source
of
information
regarding
past
ownership
of
a
property,
it
may
not
be
the
only
source
of
this
information.
To
the
extent
that
chain
of
title
documents
are
otherwise
obtained
for
other
purposes
during
the
conduct
of
a
property
sale
or
transaction,
we
believe
that
these
documents
can
easily
be
made
available
to
the
environmental
professional
by
the
prospective
landowner.
Given
that
the
final
rule
requires
that
historical
records
be
searched
for
information
on
previous
uses
and
ownership
of
a
property
for
as
far
back
in
the
history
of
property
as
can
be
shown
that
the
property
contained
structures
or
was
first
used
for
residential,
agricultural,
commercial,
industrial
or
governmental
purposes,
if
chain
of
title
documents
are
the
best
and
most
easily
attainable
source
of
this
information,
we
assume
that
such
documents
will
be
obtained
and
used
by
the
environmental
professional.

Given
the
wide
variety
of
property
types
and
locations
to
which
the
final
rule
could
apply,
any
list
of
specific
documents
could
result
in
undue
burdens
on
many
prospective
landowners
and
grantees
due
to
difficulties
in
collecting
any
specific
document
for
any
particular
property
or
property
location.
Therefore,
the
final
requirements
for
reviewing
historical
documents
allow
the
prospective
landowner
or
grantee
and
the
environmental
professional
to
use
their
judgment,
in
accordance
with
generally
accepted
good
commercial
and
customary
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.
429
Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
11
Excerpt
Text:
We
also
believe
it
is
unwise
to
not
require
some
level
of
title
information
on
the
subject
site.
Recorded
title
documents
are
an
essential
resource
because
they
accurately
identify
past
and
current
site
owners
and
may
identify
past
and
current
occupants
and
operators
(
through
leases).
This
is
also
a
resource
that
is
easily
obtained
from
a
title
company,
making
this
a
resource
that
could
be
obtained
by
the
environmental
professional
or
from
the
purchaser
or
an
agent
of
the
purchaser
(
Title
Company).

Response:
Please
see
response
to
comment
0368,
excerpt
1.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
12
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
Excerpt
Text:
­
The
proposed
standards
for
searching
for
recorded
environmental
cleanup
liens.

­­
Intertox
agrees
that
the
existence
of
an
environmental
lien
may
be
an
indicator
of
environmental
concern.
We
also
agree
that
this
search
is
likely
more
easily
accommodated
by
the
purchaser
or
an
agent
of
the
purchaser.
However,
we
believe
the
proposed
rule
should
specifically
identify
title
companies
as
the
"
agent
of
the
purchaser."
Title
companies
are
the
most
experienced
and
most
likely
able
to
procure
a
recorded
environmental
lien.
While
it
is
true
that
recorded
title
documents
are
becoming
more
available
online
from
county
assessor
offices,
a
title
company
is
still
the
most
qualified
to
obtain
an
environmental
lien.

Response:
Although
a
title
company
may
often
be
a
good
agent
to
obtain
information
on
environmental
cleanup
liens,
the
Agency
sees
no
reason
to
require
a
prospective
landowner
or
grantee
to
hire
a
title
company
to
obtain
this
information
if
the
prospective
landowner
or
grantee
can
acquire
the
information
from
another
source.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
14
Excerpt
Text:
Land
Use
Restrictions.

a)
Page
#
52546
430
b)
View:
In
the
application
of
following
Land
Use
Restrictions,
reasonable
consideration
should
be
granted
to
limit
business
interruptions
while
implementing
practical
Land
Use
Restrictions.
It
is
important
to
understand
the
type
of
land
use
restrictions
that
are
put
on
to
the
deed
and
the
reasoning
behind
the
land
use
restrictions
prior
to
land
acquisition.
Therefore
the
AAI
performance
standards
should
include
an
evaluation
of
these
restrictions.

c)
Assumptions:
The
Deed
Restriction
has
to
be
filed
each
time
the
title
is
transferred
into
a
new
name,
which
will
make
the
new
owner
aware
of
the
land
use
restrictions.
d)
Burden:
Reduces
the
potential
property
use
until
such
time
that
the
Land
Use
Restriction
is
removed,
which
could
impede
the
return
on
investment
in
purchasing
the
property.

Response:
The
final
rule
requires
the
identification
of
institutional
controls
placed
on
the
subject
property.
As
defined
in
§
312.10,
institutional
controls
are
non­
engineered
instruments,
such
as
administrative
and
legal
controls,
that
among
other
things,
can
help
to
minimize
the
potential
for
human
exposure
to
contamination,
and
protect
the
integrity
of
a
remedy
by
limiting
land
or
resource
use.
For
example,
an
institutional
control
might
prohibit
the
drilling
of
a
drinking
water
well
in
a
contaminated
aquifer
or
disturbing
contaminated
soils.
Institutional
controls
also
may
be
referred
to
as
land
use
controls,
activity
and
use
limitations,
etc.,
depending
on
the
program
under
which
a
response
action
is
conducted
or
a
release
is
addressed.

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
or
may
be
employed
in
place
of
a
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.

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
restrictions,
building
permit
requirements,
easements,
covenants,
etc.
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.
431
Commenter
Organization
Name:
Perry,
Brett
Comment
Number:
PM­
0127­
0013
Excerpt
Number:
1
Excerpt
Text:
However,
it
is
still
somewhat
vague
of
what
exactly
should
a
title
report
should
be,
and
it
would
be
nice
if
you
could
include
something
in
there
of
what
exactly
is
required,
and
make
it
a
little
more
clear
that
they
should
be
included
in
the
Phase
I.

Response:
The
final
rule
does
not
require
that
any
specific
type
of
historic
information
be
collected.
In
particular,
the
rule
does
not
require
that
persons
obtain
a
chain
of
title
document
for
the
property.
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.
Although
chain
of
title
documents
may
serve
as
an
important
source
of
information
regarding
past
ownership
of
a
property,
it
may
not
be
the
only
source
of
this
information.
To
the
extent
that
chain
of
title
documents
are
otherwise
obtained
for
other
purposes
during
the
conduct
of
a
property
sale
or
transaction,
we
believe
that
these
documents
can
easily
be
made
available
to
the
environmental
professional
by
the
prospective
landowner.
Given
that
the
final
rule
requires
that
historical
records
be
searched
for
information
on
previous
uses
and
ownership
of
a
property
for
as
far
back
in
the
history
of
property
as
can
be
shown
that
the
property
contained
structures
or
was
first
used
for
residential,
agricultural,
commercial,
industrial
or
governmental
purposes,
if
chain
of
title
documents
are
the
best
and
most
easily
attainable
source
of
this
information,
we
assume
that
such
documents
will
be
obtained
and
used
by
the
environmental
professional.

The
commenter
may
want
to
seek
the
advice
of
a
title
search
company
for
additional
information
on
the
specific
information
contained
in
title
search
documents.
432
3.4
Recorded
Environmental
Cleanup
Lens
Searches
Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Excerpt
Number:
3
Other
Sections:
NEW
­
3.16
­
Division
of
responsibilities
(
tasks
performed
by
EP
vs.
landowner/
purchaser)
Excerpt
Text:
This
section
should
more
clearly
indicate
that
it
is
NOT
the
responsibility
of
the
Environmental
Professional
to
search
for
environmental
cleanup
liens.
Searching
and
analyzing
title
and
deed
records
is
not
generally
within
the
scope
of
expertise
of
an
Environmental
Professional,
and
is
best
left
to
a
title
company
or
title
insurance
company.
It
should
be
solely
the
responsibility
of
the
person
defined
in
§
312.1
to
provide
any
information
regarding
liens
to
the
Environmental
Professional.

Response:
The
final
rule
allows
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
cost­
effectively
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
manner
or
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
final
rule
allows
for,
but
does
not
require,
the
information
on
environmental
cleanup
liens
that
is
collected
by
or
on
the
behalf
of
the
purchaser
to
be
provided
to
the
environmental
professional.
If
the
information
is
provided
to
the
environmental
professional,
he
or
she
can
make
use
of
the
information
when
conducting
the
all
appropriate
inquiries
and
when
rendering
conclusions
or
opinions
regarding
the
environmental
conditions
of
the
property.

The
decision
of
who
conducts
the
search
is
best
left
up
to
the
judgment
of
the
prospective
landowner,
grantee,
and
environmental
professional.
The
final
rule
provides
in
§
312.22
that
the
search
for
recorded
environmental
cleanup
liens
can
fall
outside
the
inquiries
conducted
by
the
environmental
professional.
The
search
for
recorded
environmental
cleanup
liens
is
not
included
as
part
of
the
requirements
governing
the
"
results
of
an
inquiry
by
an
environmental
professional"
(
§
312.21).
Therefore,
the
search
may
be
conducted
by
the
prospective
purchaser,
an
attorney
or
agent
hired
by
the
purchaser,
or
the
environmental
professional
hired
by
the
prospective
purchaser.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
1
Other
Sections:
NEW
­
3.7
­
Inclusion
of
specialized
knowledge
or
experience
433
NEW
­
3.8
­
Considering
the
relationship
of
the
purchase
price
to
the
value
of
the
property
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
Excerpt
Text:
I
would
like
to
comment
on
proposed
40
CFR
312.22.
40
CFR
312.21
defines
the
results
of
an
inquiry
by
an
environmental
professional.
40
CFR
312.22
defines
four
additional
requirements
of
an
all
appropriate
inquiry
and
requires
that
this
information
must
be
provided
to
the
environmental
professional
responsible
for
the
inquiry.
The
mandatory
provision
of
these
criteria
is
inappropriate.
The
four
criteria
of
an
all
appropriate
inquiry
mentioned
in
proposed
40
CFR
312.22
do
not
require
the
judgement
of
an
environmental
professional
to
interpret.

I
recommend
the
following
change
in
40
CFR
312.22.
312.11
Additional
Inquiries
(
a)­
Persons
identified
under
312.1(
b)
may
provide
the
following
information
to
the
environmental
responsible
for
conducting
the
activities
listed
in
312.21.

Response:
As
a
result
of
our
consideration
of
the
issues
raised
by
commenters,
today's
final
rule
modifies
the
requirements
of
§
312.22
"
additional
inquiries"
by
stating
(
in
paragraph
(
a))
that
"
persons...
may
provide
the
following
information
[
i.
e.,
the
information
for
which
the
prospective
landowner
or
brownfields
grantee
is
responsible]
to
the
environmental
professional..."
The
proposed
rule
provided
that
such
information
"
must
be
provided"
to
the
environmental
professional.
Although
we
expect
that
most
prospective
landowners
and
grantees
will
furnish
available
information
or
knowledge
about
a
property
to
an
environmental
professional
he
or
she
hired
when
such
information
could
assist
the
environmental
professional
in
ascertaining
the
environmental
conditions
at
a
property,
we
affirm
that
compliance
with
the
statutory
criteria
does
not
require
that
such
information
be
disclosed.
Ultimately,
CERCLA
liability
rests
with
the
owner
or
operator
of
a
facility
or
property
owner
and
it
is
the
information
held
by
the
property
owner
or
operator
that
may
be
reviewed
in
a
court
of
law
when
determining
an
owner
or
operator's
liability
status,
regardless
of
whether
all
information
was
disclosed
to
an
environmental
professional
during
the
conduct
of
all
appropriate
inquiries.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
5
Excerpt
Text:
It
is
probably
reasonable
to
require
that
the
environmental
cleanup
lien
search
(
proposed
312.22
(
a)(
1))
be
provided
to
the
environmental
professional,
but
once
again,
it
is
not
a
statute
requirement
and
it
does
not
require
the
judgement
of
an
environmental
professional.

Response:
Please
see
response
to
comment
0234,
excerpt
1.
434
Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
9
Excerpt
Text:
312.25
Searches
for
recorded
environmental
cleanup
liens
This
section
should
clearly
state
that
it
is
the
responsibility
of
the
purchaser
to
evaluate
the
presence
of
environmental
liens.

Response:
Please
see
response
to
comment
0105,
excerpt
3.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
11
Other
Sections:
NEW
­
3.3
­
Review
of
historical
sources
of
information
NEW
­
3.5
­
Review
of
federal,
state,
tribal,
and
local
government
records
Excerpt
Text:
1)
FAA
believes
that
EPA
should
allow
the
EP
flexibility
to
determine
whether
title
history,
fire
insurance
maps,
institutional
controls,
environmental
liens,
and
other
requirements
are
applicable
at
the
subject
property.
For
many
FAA
site
assessments,
these
sources
are
not
applicable,
especially
to
remote
properties
in
Alaska
and
other
low
population
areas.
Potential
contamination
from
adjoining
properties
in
such
instances
is
non­
existent.
FAA
suggests
that
EPA
should
allow
more
flexibility
in
the
contents
of
an
AAI
for
properties
in
remote,
undeveloped,
and
unpopulated
areas.

Response:
The
final
rule
does
not
require
that
any
specific
type
of
historic
information
be
collected.
In
particular,
the
rule
does
not
require
that
persons
obtain
a
chain
of
title
document
for
the
property.
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
13
Excerpt
Text:
3)
Would
environmental
lien
information
show
up
in
databases
currently
utilized
by
most
EPs
to
conduct
environmental
site
assessments?
Please
provide
clarification
on
this
issue.
435
Response:
With
regard
to
commenters
who
requested
that
EPA
provide
guidance
on
where
to
search
for
environmental
cleanup
liens,
we
advise
that
prospective
purchasers
seek
the
advice
of
a
local
realtor,
real
estate
attorney,
title
company,
or
other
real
estate
professional.
Environmental
cleanup
liens
may
be
recorded
as
part
of
the
land
title
records
or
as
part
of
other
state
or
local
government
land
or
real
estate
records.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
16
Excerpt
Text:
­
Recorded
Environmental
Cleanup
Liens
The
Brownfields
Revitalization
Act
provides
that
"
searches
for
recorded
environmental
cleanup
liens
that
are
filed
under
Federal,
State,
or
local
law"
shall
be
one
of
the
criteria
used
in
promulgating
the
All
Appropriate
Inquiry
regulation.
42
U.
S.
C.
§
20
9601(
35)(
B)(
iii)(
IV).
The
language
of
the
statue
is
crystal
clear,
that
it
is
recorded
liens
that
are
to
be
searched.
All
fifty
states
have
recording
acts
that
specify
a
centralized
location
(
usually
one
in
each
county)
where
instruments
may
be
validly
recorded.
See
Curtis
J.
Berger
&
Quintin
Johnstone,
Land
Transfer
and
Finance
712
(
4th
ed.
1993).

ASTM
E1527­
00
requires
searches
for
liens
recorded
in
the
"
place
where
land
title
records
are,
by
law
or
custom,
recorded
for
the
local
jurisdiction
in
which
the
property
is
located."
ASTM
E1527­
00
§
7.3.4.
This
makes
sense
because
under
the
law
of
the
fifty
states
it
is
the
only
place
where
liens
can
be
validly
recorded.

EPA
argues
that
ASTM
E1527
may
not
be
used
because
"
liens
may
be
filed
in
places
other
than
recorded
land
title
records
and
therefore
a
more
comprehensive
standard
is
necessary
to
match
the
cope
intended
by
the
statute."
69
Fed.
Reg.
at
52575.
This
is
simply
not
what
the
statute
says,
it
says
recorded
liens.
Liens
may
arise
under
federal
and
state
law.
For
example
a
windfall
lien
arises
under
CERCLA
itself
and
may
be
filed
pursuant
to
federal
law,
but
the
place
and
manner
of
recording
is
a
matter
of
state
law
by
long
custom
and
practice.

There
is
no
indication
that
Congress
intended
to
preempt
or
disrupt
the
law
of
the
states
in
an
area
long
reserved
to
the
states.
In
fact,
recording
acts
predate
the
Constitution.
Land
Transfer
at
713.
It
would
also
be
illogical
to
disrupt
longstanding
and
well
established
industry
practice.
If
any
one
fact
is
commonly
known
throughout
the
real
estate
industry
it
is
the
following:
if
you
want
your
lien
to
achieve
priority
and
provide
record
notice
you
had
better
record
in
the
county
recorders
office.
The
proposed
new
requirement
would
upset
a
centralized
and
very
reliable
system
for
notice
of
liens.

We
believe
ASTM
E1527­
00
satisfies
the
statutory
criteria
for
cleanup
liens
while
the
proposed
436
rule
does
not.
In
light
of
the
information
presented
here,
we
urge
EPA
to
reconsider
this
issue.

Response:
Environmental
cleanup
liens
may
be
recorded
as
part
of
the
land
title
records
or
as
part
of
other
state
or
local
government
land
or
real
estate
records.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.

As
outlined
in
the
preamble
to
the
proposed
rule,
the
Agency
determined
that
the
ASTM
E1527­
2000
standard
differed
from
the
statutory
criteria
in
a
few
instances.
As
reflected
in
the
Agency's
discussions
of
these
differences
in
the
preamble
to
the
proposed
rule
and
in
the
Agency's
economic
impact
analysis
for
the
proposed
rule,
the
changes
included
in
the
regulatory
requirements
to
ensure
that
the
AAI
standards
are
reflective
of
Congressional
intent
do
not
represent
economically
significant
differences
over
previous
generally
accepted
good
commercial
and
customary
practices.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
8
Excerpt
Text:
Finally,
EPA
criticizes
the
ASTM
standard
for
limiting
the
scope
of
searches
for
recorded
environmental
cleanup
liens
to
recorded
land
title
records.
The
focus
of
the
ASTM
standard
is
to
require
searches
of
"
reasonably
ascertainable"
records.
See
ASTM
El
527­
00
§
5.2.1.
If
EPA
is
to
limit
the
cost
of
compliance
with
the
AAI
regulation,
the
Agency
should
not
be
requiring
property
owners
to
search
records
where
there
is
little
likelihood
of
finding
information
on
environmental
liens.
The
EPA
preamble
contains
the
cryptic
claim
that
"
in
some
instances,
liens
may
be
filed
in
places
other
than
recorded
land
title
records
and
therefore
a
comprehensive
standard
is
necessary
to
match
the
scope
intended
by
the
statute."
69
Fed.
Reg.
at
52575.
That
may
well
be
true,
but
EPA
provides
no
indication
where
those
other
places
may
be
located.
If
EPA
believes
that
searching
recorded
land
title
records
is
insufficient,
the
final
rule
should
provide
specific
information
on
what
the
property
owner
is
looking
for
at
these
other
places
and
where
that
information
can
be
found.

Response:
We
advise
that
prospective
landowners
and
grantees
seek
the
advice
of
a
local
realtor,
real
estate
attorney,
title
company,
or
other
real
estate
professional.
Environmental
cleanup
liens
may
be
recorded
as
part
of
the
land
title
records
or
as
part
of
other
state
or
local
government
land
or
real
estate
records.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
12
437
Other
Sections:
NEW
­
3.3.2
­
Review
of
chain
of
title
documents
should
be
made
a
requirement
Excerpt
Text:
­
The
proposed
standards
for
searching
for
recorded
environmental
cleanup
liens.

­­
Intertox
agrees
that
the
existence
of
an
environmental
lien
may
be
an
indicator
of
environmental
concern.
We
also
agree
that
this
search
is
likely
more
easily
accommodated
by
the
purchaser
or
an
agent
of
the
purchaser.
However,
we
believe
the
proposed
rule
should
specifically
identify
title
companies
as
the
"
agent
of
the
purchaser."
Title
companies
are
the
most
experienced
and
most
likely
able
to
procure
a
recorded
environmental
lien.
While
it
is
true
that
recorded
title
documents
are
becoming
more
available
online
from
county
assessor
offices,
a
title
company
is
still
the
most
qualified
to
obtain
an
environmental
lien.

Response:
While
a
title
company
may
be
the
best
option
in
many
circumstances,
it
is
not
the
only
option
and
the
decision
on
how
to
obtain
this
information
remains
with
the
prospective
landowner
or
grantee.

Commenter
Organization
Name:
CONNOR
Comment
Number:
0398
Excerpt
Number:
6
Excerpt
Text:
­
Subpart
C
­
Standards
and
Practices,
Part
312.25
(
Searches
for
recorded
environmental
cleanup
liens),
Subpart
b
­­" 
must
be
provided
to
the
Environmental
Professional"
­
please
identify
who
is
responsible
for
collecting
the
information
prior
to
providing
it
to
the
Environmental
Professional.

Response:
The
decision
of
who
conducts
the
search
is
best
left
up
to
the
judgment
of
the
prospective
landowner
or
grantee
and
environmental
professional.
The
final
rule
provides
in
§
312.22
that
the
search
for
recorded
environmental
cleanup
liens
can
fall
outside
the
inquiries
conducted
by
the
environmental
professional.
The
search
for
recorded
environmental
cleanup
liens
is
not
included
as
part
of
the
requirements
governing
the
results
of
an
inquiry
by
an
environmental
professional
(
§
312.21).
Therefore,
the
search
may
be
conducted
by
the
prospective
landowner
or
grantee,
his
or
her
attorney
or
agent,
or
the
environmental
professional.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
6
Other
Sections:
NEW
­
3.3
­
Review
of
historical
sources
of
information
Excerpt
Text:
438
The
need
for
a
chain
of
title
search
and
a
property
lien
search,
although
not
specifically
called
for
the
proposed
rule,
will
be
necessary
to
establish
the
past
ownership
and
use
to
the
degree
called
for
under
AAI.
The
average
cost
for
a
chain
of
title
is
between
$
250
to
$
500.
This
is
a
tremendous
cost
addition
on
a
percentage
basis
for
a
Phase
I
and
typically
yields
no
useful
information
as
to
potential
environmental
issues
to
a
property.

Response:
The
final
rule
does
not
require
that
any
particular
type
of
historical
document
be
found
or
used
for
any
particular
property.
Although
a
chain
of
title
search
may
provide
valuable
information
on
previous
ownership
and
uses
of
a
property,
the
prospective
landowner,
grantee,
and
environmental
professional
may
be
able
to
find
this
information
from
other
sources
(
e.
g.,
interviews
with
current
and
past
owners,
other
government
records).
The
rule
allows
for
the
environmental
professional
to
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
objectives
and
performance
factors
for
the
inquiries.

The
requirements
to
search
historical
records
and
environmental
cleanup
liens
are
not
new
requirements.
These
searches
also
are
required
in
the
ASTM
E1527­
2000
standard,
therefore
they
do
not
represent
incremental
costs
to
the
final
rule.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
9
Excerpt
Text:
With
respect
to
searches
for
environmental
liens,
I
am
not
aware
of
any
other
reasonably
ascertainable
source
to
identify
the
existence
of
environmental
liens
if
not
recorded
in
land
title
records.
EPA
states
that
"
in
some
instances,
liens
may
be
filed
in
places
other
than
recorded
land
title
records."
The
place
of
these
filings,
and
the
mechanism
for
obtaining
this
information
does
not
appear
to
be
known
to
the
general
public.
Further,
if
an
additional
resource
is
required
to
be
searched
for
every
AAI
conducted,
the
time
and
cost
of
doing
so
does
not
appear
to
have
been
factored
into
the
economic
analysis.

Therefore,
it
is
my
recommendation
that
EPA
accept
as
"
reasonably
ascertainable"
a
search
for
environmental
liens
found
in
recorded
land
title
records.

Response:
Prospective
landowners
and
grantees
may
want
to
seek
the
advice
of
a
local
realtor,
real
estate
attorney,
title
company,
or
other
real
estate
professional.
Environmental
cleanup
liens
may
be
recorded
as
part
of
the
land
title
records
or
as
part
of
other
state
or
local
government
land
or
real
estate
records.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.
439
Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
2
Excerpt
Text:
Regarding
the
heading
of
What
Are
the
Proposed
Requirements
for
Searching
for
Recorded
Environmental
Cleanup
Liens?
on
page
52562
of
the
proposed
rule:

­
it
states
" 
recorded
environmental
cleanup
liens
be
performed
either
by
the
purchaser
or
through
the
inquiry
of
the
environmental
professional "
and
" 
the
search 
may
be
more
efficiently
or
most
cost­
effectively
performed
by
the
purchaser
or
an
agent
of
the
purchaser."

­
While
the
preceding
statements
may
be
true,
the
purchaser
generally
hires
an
Environmental
Professional
(
EP)
to
perform
the
necessary
services
to
complete
the
All
Appropriate
Inquiries
and
would
expect
the
EP
to
perform
this
service.
Our
concern
is
that
the
fee
for
this
service
is,
at
best,
hard
to
predict
and
thus
propose.
The
inclusion
of
researching
environmental
liens
will
result
in
substantially
higher
proposed
fees
for
those
EP's
who
are
willing
to
include
them
in
a
proposal
which
could
result
in
losing
the
job
to
a
less
"
judicious"
competitor.

Response:
The
decision
of
who
conducts
the
search
is
best
left
up
to
the
judgment
of
the
prospective
landowner
or
grantee
and
environmental
professional.
The
final
rule
provides
in
§
312.22
that
the
search
for
recorded
environmental
cleanup
liens
can
fall
outside
the
inquiries
conducted
by
the
environmental
professional.
The
search
for
recorded
environmental
cleanup
liens
is
not
included
as
part
of
the
requirements
governing
the
results
of
an
inquiry
by
an
environmental
professional
(
§
312.21).
Therefore,
the
search
may
be
conducted
by
the
prospective
landowner
or
grantee,
his
or
her
attorney
or
agent,
or
the
environmental
professional.
440
3.5
Review
of
Federal,
State,
Tribal,
and
Local
Government
Records
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
8
Excerpt
Text:
Some
of
the
records
searches
are
clearly
unnecessary,
e.
g.,
delisted
NPL
sites.
NPL
sites
extend
to
wherever
the
contamination
migrated.
They
are
not
delisted
until
cleaned.
If
the
site
is
delisted,
it
is
irrelevant
to
an
"
all
appropriate
inquiry
search."
Similarly,
"
records
of
former
CERCLIS
sites
with
no
further
remedial
action
controls
(
one
half
mile)"
are
irrelevant
to
the
evaluation
of
a
prospective
brownfield
site.

Overall,
the
records
search
is
so
far
beyond
what
has
long
been
recognized
as
commercially
appropriate
(
the
standard
EPA
adopted
in
this
negotiated
rule
making)
that
it
unconscionable,
especially
when
one
considers
that
the
failure
to
review
a
record
could
be
grounds
for
EPA
to
denied
liability
exemption,
and
that
records
searches
cost
money.
As
costs
mount,
developers
will
find
that
greenfield
development
is
much,
much
cheaper
than
brownfield
development,
killing
the
Brownfield
Program.

Response:
The
requirements
in
the
final
rule
to
search
government
records
are
very
similar
to
the
records
searches
included
in
the
ASTM
E1527­
2000
standard.
Information
on
delisted
NPL
sites
and
former
CERCLA
sites
may
provide
the
prospective
landowner
with
valuable
information
with
regard
to
institutional
or
engineering
controls
that
may
be
in
place
in
or
around
the
subject
property.
This
information
also
could
alert
the
environmental
professional
to
look
for
evidence
of
residual
contamination.

Liability
protection
would
not
be
denied
by
EPA,
but
rather
by
a
court
and
only
after
a
preponderance
of
evidence
shows
that
the
property
owner
did
not
comply
with
the
statutory
criteria
required
for
the
protections.
All
appropriate
inquiries
represent
only
one
of
many
criteria
with
which
a
property
owner
must
comply
in
order
to
obtain
the
liability
protections.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
10
Excerpt
Text:
While
the
proposed
rule
is
very
similar
to
the
current
ASTM
practice,
I
feel
that
this
is
a
missed
opportunity
to
eliminate
some
of
the
data
searches
that
typically
prove
to
be
of
minor
importance.
That
would
include
RCRA
generators,
which
yields
little
information
that
couldn't
be
obtained
from
neighborhood
observation
and
the
ERNS
list
that
is
typically
so
limited
in
detail
that
it
is
useless.
441
Response:
The
final
rule
provides
that
the
data
collection
efforts
be
conducted
in
conformance
with
the
objectives
and
performance
standards
of
312.20
(
e)
and
312.20(
f).
Although
some
of
the
required
records
searches
may
not
be
useful
for
all
property
types,
the
Agency
believes
that
when
considered
in
their
entirety
the
list
of
government
records
provides
a
strong
list
of
information
sources
for
the
variety
of
property
types
that
may
be
subject
to
the
all
appropriate
inquiries
requirements.

Commenter
Organization
Name:
Carvalho,
Michael
Comment
Number:
0257
Excerpt
Number:
2
Excerpt
Text:
EPA's
proposed
rule
also
requires
that
registries
and
publicly
available
lists
of
engineering
and
institutional
controls
be
reviewed
for
all
sites
within
one­
half
mile
of
the
subject
site
(
§
312.26).
Apart
from
the
fact
that
such
lists
are
not
currently
available
in
a
practically
reviewable
form,
no
comprehensive
database
for
this
information
exists
in
most
states
or
at
the
federal
level.
Most
AAI
practitioners
recognize
that
the
historic
(
and
largely
political)
failure
of
EPA
to
address
Brownfields
on
a
national
level
left
states
with
little
choice
but
to
embark
on
their
own
experiments.
In
many
cases,
such
experimentation
fostered
creative
and
critical
thinking
that
lead
to
significant
reforms.
If
adopted,
EPA's
proposed
AAI
Regulation
will
require
states
to
rethink
and
re­
tool
their
processes
and
procedures
for
collecting
and
disseminating
information
relating
to
engineering
and
institutional
controls.
According
to
a
national
environmental
data
provider,
EPA's
Environmental
Data
Standard
Council
is
setting
out
a
standard
for
Institutional
Control
tracking
and
offering
state
agencies
grant
money
to
adopt
the
standard
and
create
their
own
tracking
systems.
It
is
widely
acknowledged
that
such
a
database
is
at
least
5
years
away
­
assuming
that
funding
remains
available.
With
the
current
fiscal
crises
in
many
states,
there
can
be
little
disagreement
that
the
proposed
rule
will
materially
impact
existing
state
programs
by
creating
significant
resource
allocation
issues.

Response:
The
final
rule
requires
that
government
records
and
available
lists
for
institutional
and
engineering
controls
be
searched
only
for
information
on
such
controls
at
the
subject
property.
All
appropriate
inquiries
investigations
do
not
have
to
include
searches
for
institutional
and
engineering
controls
in
place
at
nearby
and
adjoining
properties.
We
made
this
change
because
we
agree
with
commenters
who
pointed
out
that
information
on
institutional
and
engineering
controls
may
be
difficult
to
find
as
there
are
no
available
national
sources
of
this
information.
Only
a
few
states
have
available
lists
of
institutional
controls.
In
addition,
the
information
that
may
be
inferred
from
knowledge
of
institutional
and
engineering
controls
that
are
in
place
at
adjoining
and
nearby
properties,
i.
e.,
that
there
was
a
response
action,
a
remedial
action,
or
corrective
action
taken
at
the
site,
can
be
inferred
from
information
obtained
from
other
sources
(
e.
g.,
CERCLIS,
RCRIS,
state
records
of
response
actions).

Commenter
Organization
Name:
FAA
442
Comment
Number:
0334
Excerpt
Number:
18
Excerpt
Text:
INSTITUTIONAL
CONTROLS
1)
Identifying
institutional
controls
may
or
may
not
be
useful
in
judging
whether
threatened
or
actual
releases
have
occurred
at
a
subject
property
or
nearby
properties.
For
example,
if
there
are
known
institutional
controls
on
drilling
in
an
area,
then
the
situation
that
led
to
the
imposition
of
those
controls
would
be
recorded
in
federal
or
state
databases
anyway.
FAA
believes
that
the
requirement
for
EPs
to
identify
institutional
controls
on
a
subject
property
is
redundant
and
should
be
removed
from
the
proposed
AAI
regulations.

Response:
It
is
important
that
prospective
landowners
obtain
information
on
institutional
and
engineering
controls
in
place
at
the
property
being
acquired.
It
also
may
be
important
to
locate
information
on
such
controls
in
place
at
nearby
properties.
To
obtain
the
liability
protections
afforded
under
CERCLA
(
i.
e.,
innocent
landowner,
contiguous
property
owner,
bona
fide
prospective
purchaser),
the
statute
requires,
as
part
of
the
"
continuing
obligations,"
that
the
property
owner
comply
with
all
land
use
restrictions
and
not
impede
the
effectiveness
of
institutional
controls.
Therefore,
it
is
important
that
information
on
institutional
and
engineering
controls
be
obtained
by
prospective
landowners,
even
though
information
about
such
controls
may
not
have
been
routinely
obtained
as
part
of
due
diligence
practices
prior
to
today's
final
rule
(
we
note
that
the
current
interim
standard
does
include
provisions
for
searching
for
"
activity
and
use
limitations").

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
5
Excerpt
Text:
Proposed
Section
312.20(
d)(
2)(
vi):
Institutional
controls
may
be
in
place
on
a
property
but
not
approved
by
a
regulatory
agency.
DEQ
believes
that
people
may
be
mislead
or
have
a
false
sense
of
protection
if
there
are
institutional
controls
on
the
property.
DEQ
believes
EPA
should
include
a
disclaimer
stating
that
the
presence
of
an
institutional
control
on
the
property
does
not
equate
to
regulatory
approval
of
those
controls.

Response:
All
appropriate
inquiries
requires
that
government
records
be
searched
for
registries
or
publicly
available
lists
of
institutional
controls
and
land
use
restrictions
applicable
to
the
subject
property.
If
the
institutional
controls
are
not
"
approved"
we
would
not
expect
that
they
would
be
recorded
in
government
records.
It
is
important
that
prospective
landowners
obtain
information
on
institutional
and
engineering
controls
in
place
at
the
property
being
acquired.
It
also
may
be
important
to
locate
information
on
such
controls
in
place
at
nearby
properties.
To
obtain
the
liability
protections
afforded
under
CERCLA
(
i.
e.,
innocent
landowner,
contiguous
property
owner,
bona
fide
prospective
purchaser),
the
statute
requires,
as
part
of
the
"
continuing
obligations,"
that
the
property
owner
comply
with
all
land
use
restrictions
and
not
impede
the
443
effectiveness
of
institutional
controls.
Therefore,
it
is
important
that
information
on
institutional
and
engineering
controls
be
obtained
by
prospective
landowners,
even
though
information
about
such
controls
may
not
have
been
routinely
obtained
as
part
of
due
diligence
practices
prior
to
today's
final
rule
(
we
note
that
the
current
interim
standard
does
include
provisions
for
searching
for
"
activity
and
use
limitations").

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
25
Excerpt
Text:
312.26(
b)(
4):
What
is
a
"
public
health
record."
The
goal
should
be
related
to
releases
of
hazardous
substances
or
petroleum,
not
roach
counts.
This
paragraph
should
be
deleted.

Response:
Public
health
records
may
include
information
on
releases
to
the
environment
that
caused
public
health
concerns
or
health
damages.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
11
Excerpt
Text:
­
iii.
The
new
requirements
for
reviewing
local
government
records
and
an
"
Adjoining
and
Nearby
Property
Analysis"
are
not
authorized
or
permitted
by
the
Brownfields
Revitalization
Act
and
contradict
customary
practice.

Another
unclear
requirement
of
the
new
rule
is
the
provision
stating
that
purchasers
"
must
seek
to
identify
through
the
conduct
of
the
standards
and
practices
set
forth
in
this
subpart.
.
.
[
p]
roperties
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."
69
Fed.
Reg.
at
52577.
This
adjoining
property
analysis
is
subject
to
the
"
performance
based"
standard
in
the
same
way
that
investigation
of
the
subject
property
is
performance
based.
69
Fed.
Reg.
52562.
In
other
words,
the
environmental
professional
must
either
prove
a
negative,
that
there
are
no
environmental
conditions
indicative
of
concern
with
respect
to
adjoining
properties
or
must
qualify
her
report.

In
performing
the
adjoining
property
analysis,
the
environmental
professional
must
search
a
long
list
of
records,
including
a
mandatory
search
of
unspecified
local
government
records.
Proposed
§
312.26.
Local
government
records
could
include
not
only
records
of
cities
and
counties,
but
school
districts,
special
districts,
joint
powers
authorities,
utility
districts
(
utility
districts
may
well
have
relevant
records
of
sewer
incidents
involving
releases
of
hazardous
substances),
and
many
others.
In
California
alone,
there
are
over
7000
local
government
entities.
Even
if
"
local
government"
were
limited
to
cities
and
counties,
their
records
are
often
not
standardized
or
organized
in
any
way
that
lends
itself
to
systematic
searches.
This
makes
fair
game
for
a
plaintiff
444
seeking
to
show
that
an
adjoining
property
analysis
did
not
measure
up
to
the
performance
based
standard.

In
view
of
the
uncertainty
created
by
the
proposed
adjoining
property
analysis/
local
record
requirement,
it
is
easy
to
see
why
current
generally
accepted
good
commercial
and
customary
standards
and
practices
avoids
an
open­
ended
local
government
records/
adjoining
property
analysis.
ASTM
E1527
makes
review
of
local
government
records
optional,
and
then
to
"
enhance
and
supplement"
federal
and
state
records,
and
only
if
such
local
records
are
"
generally
obtained,
pursuant
to
local
good
commercial
or
customary
practice."
ASTM
E1527­
00
§
7.2.2.
Moreover,
no
record
is
expected
to
be
reviewed
that
is
not
geographically
indexed.
ASTM
E1527
§
3.3.27
[
Footnote:
There
is
some
indication
in
the
preamble's
explanation
of
this
section
that
the
committee
may
have
intended
that
the
review
of
records
with
respect
to
adjoining
properties
be
restricted
to
a
specific
list
of
records­
not
including
any
local
records­­
that
are
generally
geographically
indexed.
Under
this
reading,
an
additional
search
involving
local
government
records
would
be
conducted
only
if
specific
indications
of
contamination
showed
up
within
that
initial
list
of
records.
69
Fed.
Reg.
at
563.
However,
the
text
of
the
proposed
rule
requires
that
"[
w]
ith
regard
to
nearby
or
adjoining
properties,
the
review
of 
local
government
records.
.
.
should
include
identification
of
the
following:
(
1)
Properties
for
which
there
are
government
records
of
reported
releases
or
threatened
releases."
Proposed
§
312.26.
The
general
requirement
of
§
312.26
is
also
stated
as
reviewing
federal,
tribal,
state,
and
local
records
of
the
subject
property
and
adjoining
properties
"
for
the
purposes
of
achieving
the
objectives
and
performance
factors
of
§
312.20(
d)
and
(
e)."
Proposed
§
312.26(
a).
Therefore
the
text
of
the
rule
would
require
searching
unspecified
local
government
records
of
adjoining
properties
for
reported
releases
or
threatened
releases
and
as
needed
to
identify
conditions
indicative
of
releases
or
threatened
releases
with
respect
to
the
subject
property.
We
do
not
know
if
these
ambiguities
are
the
result
of
intentionally
vague
compromise
language.
In
any
event
we
suggest
that
the
text
of
the
rule
should
be
revised
to
make
clear
exactly
what
is
required.
If
a
tiered
approach
was
indeed
intended,
we
would
suggest
something
along
the
lines
of
the
following:
"
search
this
list
of
records
first,
and
only
if
indications
of
a
release
are
found
among
these
records,
then
expand
the
search
to
gain
more
complete
information
regarding
the
release."

Current
generally
accepted
practice
with
regards
to
adjacent
properties
is
represented
by
the
requirements
of
ASTM
E1527
§
7.2,
which
employs
the
checklist
approach
to
specifically
enumerated
record
sources.
The
proposed
adjoining/
nearby
property
analysis
is
entirely
new
to
environmental
site
assessment
practice.
See,
e.
g.,
Client
Alert
at
3.
We
believe
that
the
proposed
adjoining/
nearby
property
analysis
does
not
comply
with
the
requirements
of
the
Brownfields
Revitalization
Act
to
promulgate
standards
to
"
carry
out
all
appropriate
inquiries"
in
accordance
with
"
generally
accepted
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601(
35)(
B).
Nor
do
we
think
it
complies
with
Congressional
intent
to
clarify
the
obligations
of
prospective
purchasers,
but
rather
further
obscures
what
purchasers
must
do
to
obtain
liability
protection.

The
local
records
review
criteria
of
the
Brownfields
Revitalization
Act,
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
V),
is
directly
addressed
by
ASTM
E1527
§
7.2.2
in
a
way
that
conforms
to
the
intent
of
the
statute.
We
believe
that
the
open­
ended
performance
based
approach
to
local
445
records
of
the
proposed
rule
is
unworkable
and
not
consistent
with
the
intent
of
Congress.

Response:
The
government
records
searches
included
in
the
final
rule
are
very
similar
to
the
government
records
searches
included
in
the
ASTM
E1527­
2000
standard,
which
also
includes
requirements
to
search
government
records
for
information
about
adjoining
and
nearby
properties.
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
clearly
provides
EPA
with
the
authority
to
develop
standards
and
practices
for
the
conduct
of
all
appropriate
inquiries
that
include
the
collection
of
information
about
the
potential
environmental
conditions
of
nearby
properties
that
may
have
an
impact
on
the
subject
property.
The
statutory
criteria
for
the
review
of
government
records
includes:
"
reviews
of
Federal,
State,
and
local
government
records .
concerning
contamination
at
or
near
the
facility."
In
addition,
one
purpose
of
conducting
all
appropriate
inquiries
is
to
obtain
protection
from
liability
as
a
contiguous
property
owner.
The
definition
of
a
contiguous
property
owner
under
CERCLA
is
"[
a]
person
that
owns
real
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
a
hazardous
substance
from,
real
property
that
is
not
owned
by
that
person "

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
11
Excerpt
Text:
In
§
312.26
"
Reviews
of
Federal,
Tribal,
State,
and
local
government
records"
(
b)(
4),
we
recommend
striking
"
public
health
records"
entirely
from
this
section.

Rationale:
­
Public
health
records
are
not
typically
found
in
accessible
databases
and
are
not
normally
reviewed
under
current
ASTM
practices.
­
Although
public
health
records
may
occasionally
provide
useful
information
relevant
to
an
environmental
release,
the
review
of
public
health
records
should
be
conducted
only
in
those
instances
where
major
data
gaps
exist
and
should
be
left
to
the
EP's
judgment.
­
If
the
EP
is
required
to
review
public
health
records
in
order
to
meet
compliance
with
this
regulation,
the
cost
of
the
assessment
report
is
certain
to
escalate.

Response:
Public
health
records
may
include
information
on
releases
to
the
environment
that
caused
public
health
concerns
or
health
damages.
The
search
for
public
health
records
should
be
conducted
in
conformance
with
the
performance
factors
of
312.20(
f).

Commenter
Organization
Name:
Dannatt,
Georgina
Comment
Number:
PM­
0359­
0004
Excerpt
Number:
3
Excerpt
Text:
446
My
second
area
of
comment
is
regarding
review
of
federal,
tribal,
state
and
local
government
records.
At
some
point
in
the
last
few
years,
many
providers
have
come
to
think
that
the
review
of
actual
records,
actual
agency
records,
are
now
optional
and
not
included
in
the
Phase
One
assessment.
Too
many
companies
obtain
a
commercially
available
listing
of
government
databases,
or
conduct
their
own
database
search
online,
and
that
is
their
only
inquiry
into
government
records.
Their
assumption
is
that
if
a
site
is
not
listed
with
a
problem,
there
are
no
issues.
Actual
review
of
agency
files
is
not
done,
because
it's
time­
consuming
and
therefore
adds
to
the
consultant's
cost,
or
else
access
cannot
be
obtained
in
the
time
frame
allotted
for
the
assessment.

I
believe
more
emphasis
must
be
put
on
actual
review
of
records
and
case
files.
Information
such
as
violations,
agency
site
inspection
reports,
and
lists
of
chemicals
used
by
previous
industrial
tenants
can
usually
only
be
obtained
through
review
of
the
local
file.
The
extent
of
soil
and
groundwater
contamination
is
rarely
listed
on
a
government
database,
and
without
file
review,
no
one
really
knows
if
the
subject
property
has
been
impacted
by
a
neighboring
site.

Response:
EPA
appreciates
the
commenter's
concerns.
The
final
rule
does
not
require
that
actual
government
records
be
obtained
and
reviewed.
The
Agency
is
concerned
that
such
a
requirement
would
be
overly
burdensome
and
in
some
cases
only
data
bases
of
the
information
included
in
government
records
may
be
accessible
to
the
public.
We
also
note
that
the
search
of
government
records
or
data
bases
should
merely
be
used
as
a
screening
mechanism
for
identifying
adjoining
or
nearby
properties
that
may
represent
potential
environmental
concerns
to
the
subject
property.
After
identifying
nearby
properties
that
may
have
on­
going
releases
or
previously
had
releases
of
hazardous
substances,
the
environmental
professional
should
seek
additional
information
regarding
the
potential
for
these
properties
to
affect
the
property
that
is
the
subject
of
the
all
appropriate
inquiries
investigation.
447
3.5.1
Review
of
Tribal
Records
Commenter
Organization
Name:
Hartline,
Joe
Comment
Number:
0118
Excerpt
Number:
1
Excerpt
Text:
It
is
not
clear
what
the
value
is
of
mandating
that
tribal
records
be
searched.
EPA
Region
4
tells
me
there
are
no
tribes
in
Georgia.
The
National
Geographic
recently
published
a
map
showing
three
areas
that
belong
to
tribes
in
Georgia.
So
what
source
is
correct?
Do
I
have
to
contact
a
tribe
in
Oklahoma
that
may
have
traditional
ties
to
a
property
in
Georgia?
What
likelihood
is
there
that
the
tribe
will
have
relevant
information?
I
propose
that
it
be
optional
for
an
environmental
professional
to
search
tribal
records.
The
professional
my
see
value
in
that
search
in
certain
parts
of
that
country,
but
not
in
others.

Response:
In
response
to
commenters
who
pointed
out
that
it
may
be
difficult
to
obtain
or
gain
access
to
tribal
government
records,
we
point
out
that
such
records
need
only
be
searched
for
and
reviewed
in
those
instances
where
the
subject
property
is
located
on
or
near
tribal­
owned
lands.
In
these
cases,
it
is
important
to
attempt,
within
the
scope
of
the
rule=
s
objectives
and
performance
standards,
to
review
such
records.
When
such
records
are
not
available,
necessary
information
should
be
sought
from
other
sources.
When
no
information
is
available
and
the
objectives
of
the
final
rule
cannot
be
met
and
the
result
is
a
lack
of
information,
the
lack
of
information
must
be
documented
as
a
data
gap
in
compliance
with
312.21(
c)(
2).

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
11
Excerpt
Text:
I
have
no
problem
adding
tribal
records
except
to
comment
that
from
my
experience
they
do
not
exist
in
any
usable
form.
EPA
or
the
Tribes
will
incur
considerable
cost
to
develop
a
usable
database.
I
question
the
value
of
including
such
a
database
until
it
exists
in
fact.

Response:
Please
see
response
to
comment
0118,
excerpt
1.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
16
Excerpt
Text:
Section
312.25(
a)
requires
the
EP
to
search
for
the
existence
of
environmental
cleanup
liens
that
are
filed
or
recorded
under
federal,
tribal,
state,
or
local
law.
Section
312.26
further
requires
searches
of
other
tribal
records.
A
tribal
government,
being
a
sovereign
nation,
would
neither
be
448
required
to
file
a
cleanup
lien,
nor
be
required
to
comply
with
The
Freedom
of
Information
Act.
Accordingly,
an
EP
may
not
be
able
to
complete
this
requirement
regardless
of
his/
her
efforts.
Therefore,
R&
W
recommends
the
deletion
of
any
reference
to
tribal
law
in
§
312.25(
a).

Response:
Please
see
response
to
comment
0118,
excerpt
1.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
9
Excerpt
Text:
The
Band
supports
the
inclusion
of
tribal
environmental
records
as
a
component
of
an
inquiry,
but
to
the
extent
of
all
tribal
records
being
accessible
to
a
general
search,
the
Band
supports
a
record
search
that
is
limited
to
the
scope
of
the
seven
types
of
records
enumerated
in
the
proposed
rule
at
§
312.26(
b)(
1)
through
(
7)
and
is
consistent
with
the
objectives
and
performance
factors
in
§
312.20(
d)
and
(
e).
As
a
general
premise,
the
Mille
Lacs
Band
treats
all
tribal
records
as
confidential
and
absent
a
reason
to
the
contrary,
the
Band
will
negotiate
access
to
any
necessary
information.
Although
the
Band
makes
every
effort
to
comply
with
all
federal
laws
and
regulations,
for
any
records
requests
that
go
beyond
the
scope
of
the
proposed
rules,
the
Band
may
ask
to
negotiate
access
and
also
ask
that
such
requests
be
directed
through
a
designated
contact
person
within
the
Mille
Lacs
Band
of
Ojibwe
Department
of
Natural
Resources.

Response:
Tribal
records
need
only
be
searched
for
and
reviewed
in
those
instances
where
the
subject
property
is
located
on
or
near
tribal­
owned
lands.
In
these
cases,
it
is
important
for
the
environmental
professional
to
attempt,
within
the
scope
of
the
rule=
s
objectives
and
performance
standards,
to
review
such
records.
When
such
records
are
not
available,
necessary
information
should
be
sought
from
other
sources.
When
no
information
is
available
and
the
objectives
of
the
final
rule
cannot
be
met
and
the
result
is
a
lack
of
information,
the
lack
of
information
must
be
documented
as
a
data
gap
in
compliance
with
§
312.21(
c)(
2).
The
Agency
points
out
that
in
those
cases
where
the
subject
property
is
located
on
or
near
a
tribal­
owned
land,
it
may
be
in
the
tribe's
best
interest
to
provide
the
required
information
to
the
environmental
professional
or
the
prospective
landowner
or
grantee.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
13
Excerpt
Text:
The
Mille
Lacs
Band
recommends
that
this
section
include
tribal
historical
documents
and
records
consistent
with
the
objectives
and
performance
factors
in
§
312.20(
d)
and
(
e).
As
a
general
premise,
the
Mille
Lacs
Band
treats
all
tribal
records,
including
historical
documents,
as
confidential
and
absent
a
reason
to
the
contrary,
the
Band
will
negotiate
access
to
449
any
necessary
information.
Although
the
Band
makes
every
effort
to
comply
with
all
federal
laws
and
regulations,
for
any
records
requests
that
go
beyond
the
scope
of
the
proposed
rules,
the
Band
may
ask
to
negotiate
access
and
also
ask
that
such
requests
be
directed
through
a
designated
contact
person
within
the
Mille
Lacs
Band
of
Ojibwe
Department
of
Natural
Resources.

Response:
Tribal
records
need
only
be
searched
for
and
reviewed
in
those
instances
where
the
subject
property
is
located
on
or
near
tribal­
owned
lands.
In
these
cases,
it
is
important
for
the
environmental
professional
to
attempt,
within
the
scope
of
the
rule=
s
objectives
and
performance
standards,
to
review
such
records.
When
such
records
are
not
available,
necessary
information
should
be
sought
from
other
sources.
When
no
information
is
available
and
the
objectives
of
the
final
rule
cannot
be
met
and
the
result
is
a
lack
of
information,
the
lack
of
information
must
be
documented
as
a
data
gap
in
compliance
with
§
312.21(
c)(
2).
The
Agency
points
out
that
in
those
cases
where
the
subject
property
is
located
on
or
near
a
tribal­
owned
land,
it
may
be
in
the
tribe's
best
interest
to
provide
the
required
information
to
the
environmental
professional
or
the
prospective
landowner
or
grantee.

Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
5
Excerpt
Text:
Section
312.25(
a)
requires
the
Environmental
Professional
to
search
for
the
existence
of
environmental
cleanup
liens
that
are
filed
or
recorded
under
federal,
tribal,
state,
or
local
law.
The
Grand
Rapids
Area
Chamber
of
Commerce
takes
issue
with
the
inclusion
of
"
tribal
law"
in
this
section.
A
tribal
government,
being
a
sovereign
nation,
would
not
be
required
to
file
a
cleanup
lien
or
have
to
comply
under
the
Freedom
of
Information
Act.
Accordingly,
an
Environmental
Professional
may
be
unable
to
complete
this
requirement
regardless
of
their
efforts.
Therefore,
the
Grand
Rapids
Area
Chamber
of
Commerce
recommends
the
deletion
of
any
reference
to
tribal
law
in
§
312.25(
a).

Response:
Please
see
response
to
comment
0118,
excerpt
1.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
14
Excerpt
Text:
Also,
it
is
our
experience
that
few
if
any
tribal
records
are
reviewed
for
an
environmental
site
assessment
except
in
those
instances
when
such
an
assessment
occurs
on
tribal
land.
If
this
recommendation
remains
in
the
final
rule
we
suggest
that
the
U.
S.
EPA
identify
what
types
of
tribal
records
are
generally
available
and
are
considered
a
"
government
record."
450
Response:
Please
see
response
to
comment
0118,
excerpt
1.
451
3.5.2
Adjustments
to
Search
Distances
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
7
Excerpt
Text:
Search
radius
for
regulatory
data
which
is
similar
to
the
current
ASTM
standard
seems
to
be
appropriate.

Response:
EPA
thanks
the
commenter
for
the
stated
support.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
11
Excerpt
Text:
Although
I
have
seen
a
chart
which
was
prepared
by
others
than
EPA,
what
is
the
proposed
search
radius
criteria
for
the
typical
databases
(
RCRA,
CERCLA,
LUST,
etc.)?

Response:
In
the
case
of
government
records
searches
for
nearby
properties,
the
final
rule
includes
minimum
search
distances
(
e.
g.,
properties
located
either
within
one
mile
or
one­
half
mile
of
the
subject
property)
for
obtaining
and
reviewing
records
or
data
bases
concerning
activities
and
facilities
located
on
nearby
properties.
The
search
distances
are
based
upon
our
best
judgment
regarding
the
potential
impacts
that
incidents
or
circumstances
at
an
adjoining
property
may
have
on
the
subject
property.
With
the
exception
of
the
required
searches
for
institutional
and
engineering
controls,
the
search
distances
finalized
in
today's
rule
are
the
search
distances
that
were
proposed
in
the
proposed
rule.
For
example,
government
records
identifying
properties
listed
on
the
NPL
must
be
searched
to
obtain
information
on
NPL
sites
located
within
one
mile
of
the
subject
property.
NPL
sites
located
beyond
one
mile
of
a
property
most
likely
will
have
little
or
no
impact
on
the
environmental
conditions
at
the
subject
property.
In
the
case
of
two
types
of
records,
records
of
hazardous
waste
handler
and
generator
records
and
permits,
records
of
registered
storage
tanks,
the
final
requirements
specify
that
such
records
only
be
searched
for
information
specific
to
the
subject
property
and
adjoining
properties
(
the
rule
contains
no
requirement
to
search
for
these
two
types
of
government
records
for
other
nearby
properties).
The
final
rule
requires
that
available
lists
of
institutional
controls
and
engineering
controls
only
be
searched
for
information
on
the
subject
property.
The
final
rule
allows
the
environmental
professional
to
adjust
the
search
distances
for
reviewing
government
records
of
nearby
properties
based
upon
his
or
her
professional
judgment.

Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
452
Excerpt
Number:
5
Excerpt
Text:
§
312.26(
d):
We
would
suggest
adding
"
Demonstrated
expert
knowledge
of
the
local
area
in
which
the
subject
property
is
located"
to
the
list
of
factors
for
determining
if
alternate
search
distances
are
appropriate.

"
Demonstrated
expert
knowledge
of
the
local
area"
could
be
defined
as
have
conducted
at
least
10
environmental
inquiries
in
the
immediate
geographical
area
(
i.
e.,
within
5
miles)
where
the
subject
property
is
located
within
a
5
year
period.

REASON:
It
would
be
expeditious,
and
make
for
a
better
report,
if
an
Environmental
Professional
can
simply
state
that
"
search
distances
used
were
modified
from
standard
AAI
specifications,
and
are
known
to
be
appropriate
for
the
subject
property,
based
upon
demonstrated
expert
knowledge
of
the
local
area
of
the
subject
property".

Response:
The
final
rule
allows
the
environmental
professional
to
adjust
the
search
distances
for
reviewing
government
records
of
nearby
properties
based
upon
his
or
her
professional
judgment.
The
list
of
factors
provided
in
the
final
rule
upon
which
the
environmental
professional
may
base
his
or
her
decision
to
adjust
the
search
distances
includes
geologic,
hydrogeologic,
or
topographic
conditions
of
the
subject
property
and
surrounding
environment;
land
use
or
development
densities;
the
property
type;
existing
or
past
uses
of
surrounding
properties;
and
other
relevant
factors.
The
combination
of
these
factors
is
very
similar
to
the
commenter's
suggested
factor.
Therefore,
EPA
sees
no
reason
to
amend
the
list
of
factors
as
suggested
by
the
commenter.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
12
Excerpt
Text:
12
Steve
Myers
Data
Accuracy
312.26(
d)
and
52562­
64
(
search
radii)
If
the
reason
for
altering
search
radii
are
documented
but
incorrect
from
a
logical
and/
or
technical
standpoint,
would
this
invalidate
an
owner's
ability
to
claim
an
'
Innocent
Landowner'
defense.

Response:
An
incorrect
reason
for
adjusting
the
search
radii
for
a
government
records
search
most
likely
would
not
in
itself
result
in
a
property
owner's
inability
to
claim
the
innocent
landowner
defense.
In
all
likelihood,
a
release
from
the
person's
property
would
first
have
to
be
found
and
result
in
the
expenditure
of
funds
to
remove
or
remediate
the
release.
A
determination
regarding
the
property
owner's
liability
and
potentially
the
adequacy
of
the
all
appropriate
inquiries
investigation
would
then
have
to
be
made
by
a
court.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
453
Excerpt
Number:
13
Excerpt
Text:
Similarly,
the
requirement
under
the
AAI
rule
to
identify
NFRAP
(
No
Further
Remedial
Action
Planned)
sites
to
the
same
distance
as
active
release
sites
(
½
­
mile)
is
also
overly
burdensome.
EPA
has
taken
measures
to
reduce
the
sheer
volume
of
sites
that
appear
on
the
CERCLIS
by
archiving
those
sites
where
no
further
remedial
was
warranted.
This
certainly
could
mean
that
contamination
may
be
present,
but
not
to
such
an
extent
that
would
require
concern
out
to
½
­
mile
from
a
subject
property.
I
would
recommend
that
EPA
consider
adopting
either
¼
mile
radius
or
adjacent
property
only
search.

Response:
Information
regarding
NFRAP
sites
is
still
available
in
CERCLIS.
This
requirement
is
the
same
as
the
government
records
search
required
under
the
interim
standard
(
ASTM
E1527­
2000).

Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
2
Excerpt
Text:
The
new
minimum
search
distance
proposed
is
to
extensive.
We
propose
adopting
the
current
ASTM
1527­
00
search
distance.
The
proposed
search
distances
add
unjustified
additional
costs
for
the
research,
as
well
as
there
being
no
guarantee
that
the
data
will
be
available.
To
many
state
data
inconsistencies
or
no
data
at
all.

Response:
The
minimum
search
distance
requirements
are
very
similar
to
the
government
records
search
distances
required
under
the
interim
standard
(
ASTM
E1527­
2000).
The
final
rule
requires
that
all
appropriate
inquiries
include
a
search
for
institutional
controls
for
the
subject
property
only
(
and
not
include
a
search
for
institutional
controls
at
surrounding
properties).

Commenter
Organization
Name:
anonymous
institution
Comment
Number:
0315
Excerpt
Number:
3
Excerpt
Text:
The
Rule
also
proposes
that
the
environmental
professional
can
adjust
the
search
radii
using
his/
her
judgment
based
on
the
site
geology
or
other
relevant
considerations.
In
our
experience,
environmental
professionals
have
abused
this
section
of
the
ASTM
Phase
I
Assessment.
Specifically,
search
radii
are
inaccurately
narrowed
based
on
"
distance"
or
the
inferred
groundwater
direction,
in
an
effort
to
reduce
the
need
for
a
regulatory
file
review
which
slows
the
Phase
I
due
diligence
process
and
is
costly
to
the
environmental
professional.
Furthermore,
groundwater
direction
cannot
be
definitively
determined
without
three
monitoring
wells
and
subsurface
strata
vary
greatly
from
reference
material
which
focus
on
regional
trends.
Allowing
liberal
adjustments
of
the
search
radii
will
further
foster
an
environment
in
which
database
reports
are
ordered
by
environmental
professionals
with
reduced
radii
in
order
to
save
money.
454
Radii
flexibility
will
reduce
the
need
for
valuable
file
reviews,
discussions
with
regulatory
authorities
or
case
managers,
the
pursuit
of
indemnity
agreements,
and
will
result
in
an
increase
in
liability
for
the
User.
At
a
minimum,
the
Rule
should
state
that
radii
adjustments
should
be
evaluated
on
a
property
by
property
basis
and
the
report
must
clearly
state
the
reasoning
behind
any
adjustment
so
that
the
User
is
aware
of
the
rationale
utilized.

Response:
Although
the
final
rule
allows
the
environmental
professional
to
adjust
the
minimum
search
distance
for
the
government
records
search
based
upon
several
site­
specific
factors,
the
final
rule
requires
environmental
professionals
to
document
the
rationale
for
making
any
modifications
to
the
required
minimum
search
distances
included
in
section
312.26
of
the
regulation.
EPA
believes
that
the
final
rule
allows
for
flexibility
but
does
not
promote
liberal
adjustments
to
save
money,
since
environmental
professionals
will
have
to
document
their
rationales
for
adjusting
the
search
distances.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
16
Excerpt
Text:
The
Band
agrees
with
the
proposed
language
that
allows
an
Environmental
Professional
to
use
his
or
her
professional
judgment
to
modify
the
search
distance
from
the
subject
property
boundary
line.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
rule
provision.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
12
Excerpt
Text:
2)
FAA
agrees
with
EPA
that
it
would
be
appropriate
to
allow
the
EP
to
adjust
search
distances
for
adjoining
and
nearby
properties.
However,
EPA
does
not
explain
in
the
proposed
rule
whether
adhering
to
ASTM
standard
search
radii
has
led
to
EPs
missing
information
on
actual
or
threatened
releases
in
the
past.
Perhaps
the
EPA
standard
should
suggest
that
if
the
data
obtained
using
the
proposed
standard
search
distances
suggest
a
potential
threat
of
release
from
sources
greater
than
the
standard
search
radius,
the
EP
should
consider
greater
search
radii
for
analysis
and
interpretation
of
available
data.

Response:
The
search
of
government
data
bases
is
meant
to
provide
information
about
nearby
properties
that
may
pose
a
potential
concern
to
the
property
because
of
the
properties'
proximity
and
use.
Facilities
located
more
than
a
half
mile
or
mile
from
the
subject
property
may
not
pose
threats
to
the
subject
property
due
to
their
substantial
distance
from
the
property.
Therefore,
rather
than
455
increase
the
search
distances
for
records
of
nearby
properties,
EPA
would
recommend,
as
the
commenter
seems
to
suggest,
that
environmental
professionals
only
search
for
additional
information
for
properties
that
are
further
away,
if
evidence
of
a
release
is
found
at
the
subject
property
and
no
potential
sources
of
the
release
can
be
found
after
completing
all
of
the
records
searches
as
required
by
the
final
rule.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
8
Excerpt
Text:
Proposed
Section
312.26(
c)(
3)(
i):
DEQ
believes
that
researching
records
of
RCRA
small
and
large
quantity
generators
should
not
be
limited
to
adjoining
properties.
DEQ
believes
that
the
radius
of
search
should
be
one­
quarter­
mile.
The
potential
property
owner
should
be
aware
of
any
facilities
in
the
area.

Response:
EPA
disagrees
with
the
commenter.
The
final
rule
requires
that
searches
of
government
records
be
performed
to
located
RCRA
large
and
small
quantity
generators
at
surrounding
properties.
It
is
not
likely
that
such
facilities
pose
substantial
threats
to
a
property
if
located
further
away
from
the
subject
property.
However,
EPA
would
recommend
that
environmental
professionals
search
for
additional
information
for
properties
that
are
further
away
if
evidence
of
a
release
is
found
at
the
subject
property
and
no
potential
sources
of
the
release
can
be
found
after
completing
all
of
the
records
searches
as
required
by
the
final
rule.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
26
Excerpt
Text:
312.26(
c):
When
ASTM
set
search
distances
for
various
lists
of
environmental
sites,
it
was
very
conservative
because
there
was
not
a
lot
of
experience
of
the
potential
effects
of
a
listed
site
on
a
property
being
assessed.
Since
1992
experience
and
studies
e.
g.,
the
Lawrence
Livermore
petroleum
effects
study,
have
shown
effects
to
be
generally
much
more
geographically
limited
(
recognizing
that
there
are
geological
conditions
where
even
1527
distances
are
inadequate).

Response:
The
search
of
government
data
bases
is
meant
to
provide
information
about
nearby
properties
that
most
likely
could
pose
a
potential
concern
to
the
property
because
of
the
properties'
proximity
and
use.
Facilities
located
more
than
a
half
mile
or
mile
from
the
subject
property
may
not
pose
threats
to
the
subject
property
due
to
their
substantial
distance
from
the
property.
Therefore,
rather
than
increase
the
search
distances
for
records
of
nearby
properties,
EPA
would
recommend
that
environmental
professionals
only
search
for
additional
information
for
properties
that
are
further
away,
if
evidence
of
a
release
is
found
at
the
subject
property
and
no
potential
sources
of
the
release
can
be
found
after
completing
all
of
the
records
searches
as
456
required
by
the
final
rule.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
29
Excerpt
Text:
312.26(
c)(
2)(
iv):
What
is
the
concern
relating
to
a
CERCLIS­
NFRAP
site
that
is
further
than
an
adjoining
site
away
from
the
Property?
This
is
giving
the
same
weight
to
an
NFRAP
site
as
to
an
active
CERCLIS
site.

312.26(
c)(
3)(
i):
add
"
or
comparable
state
or
tribal
generators."

312.26(
c)(
3)(
iii):
delete
"
registered".
Many
jurisdictions
do
not
require
the
registration
of
farm
or
heating
oil
tanks
but
these
can
obviously
have
an
effect
on
a
property
even
if
only
an
adjoining
site.
If
the
information
concerning
these
tanks
is
available,
it
should
be
included.

Response:
Identifying
NFRAP
sites
and
CERCLIS
sites
may
provide
the
environmental
professional
with
information
regarding
the
location
of
properties
where
remedial
actions
have
taken
place
and
residual
contamination
may
exist.
The
final
rule
requires
that
government
records
be
searched
for
information
on
properties
within
one
mile
of
the
subject
property
that
are
NPL
sites
or
tribal­
and
state­
equivalent
sites.
The
final
rule
requires
that
government
records
be
searched
for
information
on
properties
within
one­
half
mile
of
the
subject
property
that
are
former
CERCLIS
sites
with
NFRAP
notices.

EPA
believes
that
the
commenter's
request
to
amend
312.26(
c)(
3)(
i)
is
not
necessary
because
the
final
rule
at
312.26(
c)(
3)(
ii)
requires
a
search
of
government
records
for
federally­
permitted,
tribal­
permitted,
or
state­
permitted
(
or
registered)
landfills
and
solid
waste
management
facilities.
In
addition,
section
312.26(
c)(
4)
requires
a
review
of
additional
government
records
with
regard
to
sites
identified
under
312.26
(
c)(
1)
through
(
c)(
3)
that
may
be
necessary
in
the
judgment
of
the
environmental
professional
to
meet
the
objectives
and
performance
factors.

Although
releases
from
non­
registered
storage
tanks
may
affect
the
environmental
conditions
of
a
property,
information
about
non­
registered
storage
tanks
most
likely
will
not
be
found
in
government
data
bases.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
13
Excerpt
Text:
­
The
proposed
standards
for
reviewing
federal,
state,
tribal
and
local
government
records.

­­
The
proposed
standards
for
reviewing
federal,
state,
tribal,
and
local
government
records
are
457
fairly
similar
to
the
existing
ASTM
standard.
However,
shrinking
the
minimum
impact
distance
to
½
mile
is
more
reasonable
considering
the
likelihood
of
contaminant
migration.
Especially
beneficial
is
allowing
latitude
in
determining
impact
distances
by
the
environmental
professional.
We
disagree
however,
that
reviewing
actual
records
is
not
necessary.
The
fact
that
a
site
of
concern
appears
on
a
database
and
is
within
½
mile
radius
of
the
subject
site
is
not
proof
of
environmental
concern.
Accurate
and
pertinent
determinations
of
adjacent
environmental
liability
can
only
be
assessed
by
reviewing
Phase
I,
II,
and
III
environmental
site
assessments.
It
is
that
level
of
detail
that
will
more
precisely
characterize
environmental
liabilities
of
the
site
under
investigation.

Response:
EPA
thanks
the
commenter
for
the
support
and
information.
EPA
agrees
that
the
government
records
search
is
best
viewed
only
as
a
screening
tool
for
identifying
nearby
properties
that
could
impact
the
subject
property.
Once
such
properties
are
identified,
additional
information
may
need
to
be
obtained
to
assess
the
types
and
extent
of
any
impacts.
Although
it
may
be
prudent
for
prospective
property
owners
to
undertake
additional
and
more
extensive
inquiries,
including
Phase
II
and
Phase
III,
to
identify
the
extent
of
any
potential
impacts
and
ensure
that
once
the
property
is
purchased
the
property
owner
can
comply
with
the
statutorily­
imposed
continuing
obligations,
such
inquiries
are
beyond
the
scope
of
all
appropriate
inquiries.
458
3.5.2.1
Search
Distance
for
Institutional
and
Engineering
Controls
Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
12
Excerpt
Text:
The
Review
of
Institutional
Controls
(
IC's)
identified
with
in
½
mile
of
the
property
represents
a
considerable
expansion
of
effort
beyond
current
industry
practice.
Especially
as
the
number
of
IC's
increase
with
time.
Most
IC's
are
very
specific
to
the
subject
properties
and
don't
address
adjacent
properties.
The
most
common
form
of
IC
is
a
risk­
based
closure
that
allows
residual
contamination
to
remain
on
the
property.
In
highly
industrialized
areas
these
IC
will
become
plentiful.
Requiring
the
EP
to
review
every
site
specific
IC
identified
is
burdensome
and
likely
to
provide
little
useful
information.
IC
review
should
be
limited
to
the
subject
property
and
any
adjoining
properties
as
appropriate.

Response:
The
final
rule
requires
that
government
records
and
available
lists
for
institutional
and
engineering
controls
be
searched
only
for
information
on
such
controls
at
the
subject
property.
All
appropriate
inquiries
investigations
do
not
have
to
include
searches
for
institutional
and
engineering
controls
in
place
at
nearby
and
adjoining
properties.
We
made
this
change
because
we
agree
with
commenters
who
pointed
out
that
information
on
institutional
and
engineering
controls
may
be
difficult
to
find
as
there
are
no
available
national
sources
of
this
information.
Only
a
few
states
have
available
lists
of
institutional
controls.
In
addition,
the
information
that
may
be
inferred
from
knowledge
of
institutional
and
engineering
controls
that
are
in
place
at
adjoining
and
nearby
properties,
i.
e.,
that
there
was
a
response
action,
a
remedial
action,
or
corrective
action
taken
at
the
site,
can
be
inferred
from
information
obtained
from
other
sources
(
e.
g.,
CERCLIS,
RCRIS,
state
records
of
response
actions).

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
4
Excerpt
Text:
§
312.26
(
c)
(
2)
(
iii)
establishes
the
obligation
to
conduct
a
search
of
registries
or
publicly
available
lists
of
engineering
and
institutional
controls
within
one­
half
mile
of
the
subject
property.

Comment:
This
is
an
unreasonable
requirement,
and
one
that
will
be
impossible
to
achieve
within
a
reasonable
transaction
schedule
and
budget.
Presently,
commercial
data
base
vendors,
such
as
EDR,
have
only
limited
geographical
coverage
on
this
topic.
It
not
clear
that
even
EDR's
coverage
encompasses
the
full
range
of
engineering
and
institutional
controls
that
could
be
inplace
in
a
given
area.
As
noted
in
the
EPA's
preamble
(
FR,
page
52559,
Para.
6),
institutional
controls
encompass
not
only
environmental
cleanup
liens,
but
also
zoning
restrictions,
building
or
excavation
permits,
well
drilling
prohibitions,
easements
and
covenants.
In
addition,
while
459
the
preamble
notes
(
FR,
page
52562,
Para.
2)
that
the
proposed
rule
does
not
require
that
persons
obtain
a
chain
of
title,
this
may
in
fact
be
necessary
in
order
to
determine
if
a
property
has
engineering
or
institutional
controls
in
place.
Clearly,
the
scope
can
be
quite
broad.

A
one­
half­
mile
radial
search
broadly
encompasses
about
5,000
acres.
In
an
urban
area,
it
would
not
be
unreasonable
to
assume
an
average
property
size
of
one­
quarter
acre.
This
translates
to
over
20,000
separate
properties
within
the
one­
half
mile
area
of
interest.
Even
if
municipal
records
on
this
issue
were
organized
by
street
address,
the
effort
required
to
match
the
institutional
control
records
against
the
radial
area
of
interest
is
enormous.
A
one­
half­
mile
radius
might
easily
involve
more
than
one
jurisdiction,
which
only
further
increases
the
effort
required
to
research
this
issue.

If
you
are
going
to
impose
this
requirement,
we
recommend
limiting
the
radius
search
to
the
subject
property
plus
the
abutting
properties.
A
one­
half
mile
radius
is
unreasonable
and
probably
of
no
relevance,
particularly
in
an
urban
environment.

Response:
The
final
rule
requires
that
government
records
and
available
lists
for
institutional
and
engineering
controls
be
searched
only
for
information
on
such
controls
at
the
subject
property.
All
appropriate
inquiries
investigations
do
not
have
to
include
searches
for
institutional
and
engineering
controls
in
place
at
nearby
and
adjoining
properties.
We
made
this
change
because
we
agree
with
commenters
who
pointed
out
that
information
on
institutional
and
engineering
controls
may
be
difficult
to
find
as
there
are
no
available
national
sources
of
this
information.
Only
a
few
states
have
available
lists
of
institutional
controls.
In
addition,
the
information
that
may
be
inferred
from
knowledge
of
institutional
and
engineering
controls
that
are
in
place
at
adjoining
and
nearby
properties,
i.
e.,
that
there
was
a
response
action,
a
remedial
action,
or
corrective
action
taken
at
the
site,
can
be
inferred
from
information
obtained
from
other
sources
(
e.
g.,
CERCLIS,
RCRIS,
state
records
of
response
actions).

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
17
Other
Sections:
MODIFIED
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
The
requirement
of
§
312.26
to
search
registries
or
publicly
available
information
for
brownfield
sites,
engineering
controls,
and
institutional
controls
is
simply
not
feasible.
Such
records
are
typically
kept
in
a
property­
by­
property
basis,
e.
g.,
recorded
in
title
records
for
each
property.
Surely,
Congress
did
not
intend
searching
title
records
for
every
parcel
of
real
estate
within
onehalf
mile
for
each
proposed
transaction.
Similarly,
the
Economic
Impact
Analysis
did
not
include
any
costs
to
address
these
requirements
that
are
above
the
current
E
1527­
00
practice.
Therefore,
the
Analysis
understates
the
impact
of
this
Proposed
Rule.

Response:
See
response
to
comment
number
0314,
excerpt
4.
460
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
18
Excerpt
Text:
Lastly,
remedial
actions
involving
institutional
controls
and
engineering
controls
are
typically
nearly
completion.
If
the
sources
of
contamination
addressed
by
these
measures
posed
a
material
threat
to
the
property
subject
to
the
AAI
investigation,
the
property
would
be
subject
to
such
controls.
R&
W
requests
that
the
EPA
limit
the
requirement
to
search
for
records
of
brownfield
sites,
engineering
controls,
and
institutional
controls
to
the
property
that
is
subject
to
the
AAI
investigation.

Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
Edwards,
Amy
Comment
Number:
0333
Excerpt
Number:
2
Excerpt
Text:
My
third
comment
concerns
the
need
to
search
within
one­
half
mile
of
a
site
for
institutional
and
engineering
controls
in
registries
or
publicly
available
lists
(
312.26(
c)(
2)(
ii)
and
(
iii)).
Information
about
institutional
controls
is
not
"
readily
available"
at
the
present
time
in
many
jurisdictions,
and
requiring
a
half
mile
search
for
this
information
would
significantly
increase
the
cost
of
conducting
routine
environmental
due
diligence.
I
appreciate
the
drafters'
goal
of
trying
to
increase
the
number
of
databases
and
registries
that
collect
information
about
institutional
controls;
having
more
sources
of
information
about
institutional
controls
will
be
beneficial
in
the
long
run.
In
the
interim,
however,
as
these
sources
of
information
continue
to
evolve,
I
would
suggest
that
the
rule
contain
some
kind
of
cautionary
language
that
the
EP
and
the
user
need
to
use
"
commercially
reasonable
efforts"
to
try
to
obtain
this
information.

Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
28
Excerpt
Text:
312.26(
c)(
2)((
ii
and
iii):
What
possible
effect
will
an
engineering
or
institutional
control
beyond
an
adjoining
site
have
on
the
Property
being
assessed?
What
would
be
required
of
a
property
owner
or
buyer
based
on
a
control
at
a
site
½
mile
from
the
property
assessed?
This
search
distance
should
be
limited
to
the
property
and
adjoining
sites.
461
Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
4
Excerpt
Text:
B.
Records
Search
for
Properties
with
Institutional
Controls.
Proposed
section
312.26(
c)(
2)(
iii)
requires
a
search
of
governmental
records
or
databases
to
identify
properties
with
institutional
controls
up
to
a
distance
of
Vi
mile
from
the
subject
property.
Although
US
WAG
agrees
that
AAI
should
include
a
search
of
records
to
identify
nearby
properties
subject
to
institutional
controls,
we
believe
that
searching
up
to
V2
mile
from
the
subject
property
is
not
necessary
to
protect
human
health
and
the
environment.
Moreover,
the
Vi
mile
requirement
is
considerably
beyond
current
industry
practice
and
will
significantly
increase
costs
with
little
additional
useful
information.
It
appears
EPA
has
not
considered
this
additional
cost
in
the
economic
analysis
of
this
proposal.

Institutional
controls
typically
are
specific
to
the
property
they
affect,
and
as
the
distance
to
the
subject
property
increases,
the
potential
impact
on
the
subject
property
rapidly
disappears.
In
industrialized
areas,
particularly
in
areas
targeted
for
Brownfields
redevelopment,
institutional
controls
are
commonplace,
often
relating
to
leaking
underground
storage
tanks,
and
requiring
the
environmental
professional
to
review
every
identified
institutional
control
within
a
Vi
mile
radius
of
the
subject
property
would
be
highly
burdensome.
To
be
sure,
proposed
section
312.26(
d)
allows
the
environmental
professional
to
modify
this
distance
based
on
professional
judgment
and
taking
into
account
seven
factors
specified
in
the
rule,
but
such
a
modification
must
be
documented
and
that
will
make
the
environmental
professional
reluctant
to
exercise
this
discretion
to
modify
the
search
distance.
See
69
Fed.
Reg.
at
52563­
64.
We
recommend
that
EPA
modify
the
proposal
rule
to
limit
the
search
for
institutional
controls
to
the
subject
and
adjoining
property.

Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
7
Excerpt
Text:
Record
searches
are
also
expanded
under
the
Proposed
Rule.
AAIs
now
must
identify
engineering
and
institutional
controls
on
or
within
one­
half
mile
of
the
property
(
emphasis
added).
Thus,
traditional
methods
of
title
searching
will
not
suffice
under
the
Proposed
Rule's
standards.
Engineering
and
institutional
controls
are
not
necessarily
found
in
chain
of
title
searches
as
these
controls
can
be
recorded
by
other
instruments,
such
as
land
purchase
contracts,
easements
and
other
agreements.
Thus,
potential
purchasers
will
need
to
hire
a
title
company
to
462
do
a
full
title
exam,
not
only
for
the
subject
property
but
for
the
properties
within
a
one­
half
mile
radius,
increasing
the
cost
greatly.
Assuming
an
EP
can
identify
all
such
controls
for
the
subject
property,
how
far
must
the
EP
go
to
find
them
for
property
within
one­
half
mile
of
the
subject
property?
What
relevance
do
controls
on
properties
one­
half
mile
away
have
on
the
evaluation
of
the
subject
property?
Given
the
fact
that
these
controls
will
be
difficult,
and
may
be
impossible
to
find
for
the
subject
property,
not
to
mention
properties
within
a
one­
half
mile
radius,
wouldn't
it
be
an
automatic
data
gap
if
no
controls
were
found?

Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
4
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Review
of
Industrial
Controls
within
½
mile
of
the
property
is
a
considerable
expansion
of
the
effort
beyond
the
current
industry
practice
that
significantly
increases
costs
without
yielding
information
useful
to
the
process.
IC's
are
very
specific
to
the
properties
they
affect.
The
most
common
form
of
an
institutional
control
is
a
risk
based
closure
that
allows
for
residual
contamination
to
remain
on
site
given
the
current
site
specific
property
use.
In
many
areas
these
IC
are
plentiful,
particularly
with
respect
to
leaking
underground
storage
tanks.
Requiring
review
of
every
site
specific
IC
identified
within
½
mile
is
overly
burdensome,
the
cost
of
which
is
not
factored
into
the
economic
analysis.
It
is
recommended
that
the
requirement
be
limited
to
searching
for
IC
on
the
subject
site
and
the
adjoining
properties.

Response:
See
response
to
comment
number
0314,
excerpt
4.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
7
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Institutional
Controls
­
Review
of
ICs
identified
within
½
­
mile
of
the
property
is
a
considerable
expansion
of
effort
beyond
the
current
industry
practice
that
significantly
increases
costs
without
yielding
information
useful
to
the
process.
ICs
are
very
specific
to
the
properties
they
affect.
The
most
common
form
of
an
institutional
control
is
a
risk­
based
closure
that
allows
for
residual
contamination
to
remain
on
site
given
a
current
site­
specific
property
use.
In
a
highly
industrialized
area,
these
ICs
are
plentiful,
particularly
with
respect
to
leaking
USTs.
Requiring
the
EP
to
review
every
site­
specific
IC
identified
within
½
­
mile
is
overly
burdensome,
the
cost
of
which
is
not
factored
into
the
economic
analysis.
I
recommend
that
the
requirement
be
limited
to
searching
for
ICs
on
the
subject
site
and
adjoining
properties.
463
Response:
See
response
to
comment
number
0314,
excerpt
4.
464
3.5.3
Government
Records
May
Not
Be
Reasonably
Ascertainable
Commenter
Organization
Name:
Beaver,
Christine
Comment
Number:
0074
Excerpt
Number:
4
Excerpt
Text:
With
regard
to
the
local
agency
record
searches,
it
is
my
experience
that
the
ability
to
obtain
information
is
often
complicated
by
a
lack
of
cooperation,
and
creates
data
gaps.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).

Commenter
Organization
Name:
Beaver,
Christine
Comment
Number:
0074
Excerpt
Number:
5
Excerpt
Text:
Another
example,
is
searching
for
records
at
the
New
York
City
Buildings
Department
in
Queens
County
is
such
an
exhaustive
process
(
due
to
the
filing
system,
constraints
on
the
number
of
files
that
are
permitted
to
be
reviewed
at
one
time,
and
the
inability
to
access
archived
records
on
certain
days
and
hours)
that
we
generally
conclude
under
ASTM
1527­
00
standards
that
it
was
not
reasonably
ascertainable
to
review
these
records
given
time
and
cost
constraints.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).
465
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
7
Excerpt
Text:
Sec.
312.26
requires
a
review
of
government
agency
records.
So
long
as
the
records
are
available
electronically,
or
upon
request
of
the
agency
under
the
Freedom
of
Information
Act
or
other
public
records
law
requiring
the
agency
to
allow
inspection
of
the
records
on
demand,
the
burden
is
reasonable.
The
regulation,
however,
doesn't
limit
the
records
to
those
readily
available.
A
prospective
brownfield
developer
should
not
have
to
hire
a
librarian
or
historic
documents
research
to
paw
through
government
files
to
fulfill
"
all
appropriate
inquiry"
requirements.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).

Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Excerpt
Number:
4
Excerpt
Text:
§
312.26
(
b)
should
indicate,
"...
should,
to
the
extent
records
are
available
and
reasonably
accessible,
include:"

REASON:
Availability,
accessibility
and
formatting
of
state
and
local
records
varies
widely
from
one
jurisdiction
to
another.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
466
report
of
findings
in
compliance
with
§
312.20(
f).

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
10
Excerpt
Text:
312.26
Reviews
of
Federal,
State,
tribal
and
local
government
records
This
section
should
state
what
is
considered
to
be
a
reasonable
period
time
for
the
consultant
to
await
information
that
is
requested
from
the
various
federal,
state,
tribal,
and
local
agencies
on
the
basis
of
a
site's
appearance
on
the
environmental
database(
s)
that
are
reviewed.
We
contend
that
a
reasonable
period
of
time
for
access
to
the
requested
information
is
10
business
days,
however,
given
the
greater
lengths
of
time
many
such
agencies
take
to
respond
to
information
requests,
it
is
likely
that
many
responses,
not
to
mention
the
desired
information,
will
not
be
obtainable
within
the
10
business
day
period.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
10
Excerpt
Text:
In
§
312.26
"
Reviews
of
Federal,
Tribal,
State,
and
local
government
records"
(
b),
the
requirements
to
review
local
government's
records
AND
databases
on
the
subject
and
adjoining
properties
are
overly
burdensome.
The
following
revisions
would
address
this
concern:

­(
b)
"
With
regard
to
the
subject
property,
the
review
of
federal,
tribal,
state,
and
local
government
records
or
databases
of
such
government
records
and
local
government
records
and
data
bases
of
such
records
should
include
identification
of
the
following:"

Rationale:
­
Local
government
records
are
generally
not
easily
accessible
or
practicably
reviewable;
therefore,
the
requirement
should
be
to
review
local
government's
records
OR
databases.
467
­
Changing
the
"
and"
to
an
"
or"
would
make
it
consist
with
the
language
and
premise
of
§
312.26
(
a)
and
(
c).

­
The
review
of
government
records
should
be
limited
to
the
readily
available
information
already
provided
in
an
EDR
or
similar
reports.

Response:
The
final
rule
at
§
312.26(
b)
requires
the
review
of
federal,
tribal,
and
state
government
records
or
databases
of
such
government
records.

The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).

Commenter
Organization
Name:
Anonymous
Comment
Number:
0427
Excerpt
Number:
1
Excerpt
Text:
In
regards
to
databases
required
to
review
for
a
site.
The
records
requested
to
be
examined
for
each
piece
of
property
are
going
to
increase
the
expense
of
a
professional
review
of
a
property.

Tribal
records
for
one
are
mostly
non­
existent,
and
not
easily
obtainable,
nor
are
local
records
always
easily
reviewed.

Public
health
records
to
be
searched
_
This
is
kind
of
open.
What
public
health
records
exactly??
There
are
literally
tons!

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).
468
3.5.4
The
Agency
Should
Provide
More
Guidance
on
How
Best
to
Obtain
Information
about
Institutional
and
Engineering
Controls
Commenter
Organization
Name:
Edwards,
Amy
Comment
Number:
0333
Excerpt
Number:
1
Excerpt
Text:
The
proposed
AAI
rule
does
an
excellent
job
of
establishing
as
one
of
the
objectives
of
"
all
appropriate
inquiries"
the
need
to
identify
institutional
and
engineering
controls
as
potential
indications
of
"
conditions
indicative
of
releases
or
threatened
releases"(
312.20(
d)(
1)(
v)
and
(
vi)).
This
information
is
important
not
only
for
satisfying
the
threshold
step
of
establishing
that
one
has
conducted
"
all
appropriate
inquiries",
but
also
in
later
taking
"
reasonable
steps"
­
in
this
case,
satisfying
one's
ongoing
obligation
"
not
to
impede
the
effectiveness
or
integrity
of
any
institutional
control
employed
in
connection
with
a
response
action"
(
69
Fed.
Reg.
52559)
and
thereby
qualifying
for
one
or
more
of
the
"
landowner
liability
protections"
established
pursuant
to
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Pub.
L.
107­
118).

My
first
comment
concerns
the
best
way
in
which
to
find
information
about
institutional
and
engineering
controls
that
may
have
been
placed
on
a
site.
The
proposed
rule
imposes
this
burden
upon
both
the
environmental
professional
and
the
person
commissioning
the
report,
a
requirement
that
I
support.
Information
about
institutional
and
engineering
controls
is
not
routinely
requested
or
obtained
as
part
of
current
environmental
due
diligence
practices,
even
though
awareness
of
these
restrictions
is
critically
important
in
ensuring
their
long­
term
durability
and
enforceability.

The
key
question
is
how
best
to
find
this
information.
The
proposed
rule
mentions,
inter
alia,
requesting
a
"
chain
of
title"
report
(
312.24(
a);
see
also
69
Fed.
Reg.
52559).
However,
during
the
six
years
we
spent
crafting
and
later
revising
the
ASTM
E
2091­
00
Standard
Guide,
as
well
as
during
my
two
years
of
service
as
an
advisor
to
the
National
Conference
of
Commissioners
on
Uniform
State
Laws
while
it
developed
the
Uniform
Environmental
Covenants
Act,
it
became
very
clear
that
a
routine
"
chain
of
title"
report
frequently
will
not
contain
information
about
institutional
or
engineering
controls.
It
is
my
understanding
that
this
practice
has
evolved
because
title
companies
frequently
do
not
insure
"
environmental
conditions",
so
they
may
not
"
flag"
institutional
or
engineering
controls
in
their
"
chain
of
title"
reports.
I
have
been
advised
that
title
companies
DO
have
an
obligation
to
highlight
in
their
reports
"
restrictions
of
record
on
title",
even
when
those
restrictions
have
been
recorded
because
of
underlying
environmental
conditions.
Thus,
there
appears
to
be
a
misunderstanding
or
lack
of
communication
between
the
real
estate
and
environmental
communities
in
terms
of
how
best
to
request
this
information.
I
would
suggest
that
the
rule
provide
greater
guidance
on
how
best
to
obtain
information
about
institutional
and
engineering
controls.

Based
upon
the
conversations
that
I
have
had
with
representatives
of
title
search
companies
and
the
real
estate
bar,
it
is
my
understanding
that
persons
requesting
information
about
institutional
or
engineering
controls
should
let
their
title
search
company
know
that
they
are
looking
for
469
"
restrictions
of
record
on
title".
This
information
is
also
sometimes
referred
to
as
a
"
historical
environmental
title
search"
by
some
title
search
companies.
Information
about
institutional
controls
is
also
routinely
recorded
in
local
land
records,
so
the
EP
and
the
person
commissioning
the
AAI
report
should
be
directed
to
check
those
records.
Similarly,
the
computerized
database
search
companies
are
beginning
to
collect
this
information,
and
a
number
of
states
are
beginning
to
create
registries
to
track
this
information,
so
these
sources
of
information
should
be
consulted
as
well.

My
second
comment
concerns
how
to
search
for
institutional
controls
that
are
not
"
restrictions
of
record
on
title".
The
proposed
rule
correctly
notes
that
there
are
several
different
types
of
institutional
controls,
including
easements
and
covenants
(
i.
e.,
proprietary
controls),
zoning,
permits
and
orders,
and
well
advisories.
Only
proprietary
controls
typically
appear
in
a
"
chain
of
title"
report
or
a
"
historical
environmental
title
search"
because
they
constitute
"
restrictions
of
record
on
title";
the
other
types
of
restrictions
do
not.
Database
companies
and
registries
likewise
do
not
typically
track
these
other
types
of
institutional
controls.
Accordingly,
it
will
be
important
to
define
in
the
final
rule
where
the
EP
and
the
purchaser
must
look
to
satisfy
AAI,
as
these
other
types
of
institutional
controls
are
not
"
readily
available"
at
the
present
time.
As
part
of
a
Phase
I
Environmental
Site
Assessment
(
ESA)
today,
an
EP
does
not
typically
look
at
the
underlying
Record
of
Decision
to
determine
whether
zoning
or
excavation
permits
might
have
been
used
as
an
institutional
control
at
the
site.
To
require
that
an
EPA
or
purchaser
examine
the
underlying
administrative
record
to
determine
whether
an
institutional
control
should
have
been
implemented
at
a
site,
as
recommended
by
EPA's
Common
Elements
Guide,
will
unnecessarily
and
dramatically
increase
the
cost
of
AAI.
I
would
encourage
the
agency
to
drop
all
such
implied
requirements
from
the
final
rule.

Response:
EPA
thanks
the
commenter
for
the
information
and
advice
on
how
to
search
for
institutional
controls.
EPA
incorporated
much
of
the
commenter's
advice
into
the
preamble
for
the
final
rule.
470
3.5.5
The
Agency
Should
Provide
the
Definition
of
Engineering
Controls
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
1
Excerpt
Text:
The
term
"
engineering
controls"
is
used
throughout
the
standard,
however
it
is
not
defined.
What
is
the
definition
of
"
engineering
controls"
relative
to
this
standard?

Response:
Engineering
controls
are
physical
modifications
to
a
property
(
e.
g.,
capping,
slurry
walls)
to
reduce
or
eliminate
the
potential
for
exposure
to
hazardous
substances
at
the
property.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
6
Excerpt
Text:
It
is
also
requested
that
the
term
"
engineering
controls"
be
defined
in
§
312.10.
The
Agency
adequately
discussed
the
nature
of
the
term
"
institutional
controls"
on
page
52559
of
the
preamble
and
defined
it
in
§
312.10,
but
failed
to
convey
exactly
what
the
Agency's
intention
is
for
the
term
"
engineering
controls".
Although
the
term
"
engineering
controls"
is
specifically
used
in
the
proposed
rule
at
§
312.26(
c)(
2)(
ii),
it
has
not
been
defined
and
is
arguably
a
generic
term
in
the
environmental
field.
Again,
it
would
be
beneficial
to
the
regulated
community
to
completely
understand
what
the
Agency
intends
by
the
use
of
this
term
moving
forward
under
the
final
rule.

Response:
Engineering
controls
are
physical
modifications
to
a
property
(
e.
g.,
capping,
slurry
walls)
to
reduce
or
eliminate
the
potential
for
exposure
to
hazardous
substances
at
the
property.
471
3.5.6
Record
Listings
Should
Be
Replaced
by
Specific
Government
Facility
Listings
Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
3
Excerpt
Text:
Regarding
the
heading
of
What
Are
the
Proposed
Requirements
for
Reviewing
Federal,
State,
Tribal,
and
Local
Government
Records?
on
page
52562
of
the
proposed
rule:

­
it
states
"
The
proposed
rule 
would
require
that 
government
records
be
searched
for
information ".

­
While
we
agree
that
these
records
should
be
identified,
researching
these
records
can
be,
as
noted
in
your
"
For
example,
in
the
case
of
NPL
sites "
example,
a
very
time
consuming
exercise
that
cannot
be
predicted
at
the
time
an
EP
proposes
to
perform
an
All
Appropriate
Inquiries
project
for
a
client.

­
We
would
suggest
that
specific
government
facility
listings
[
similar
to
what
is
recommended
in
ASTM
1527]
be
part
of
the
All
Appropriate
Inquiry
in
lieu
of
researching
records
associated
with
these
listings
as
the
number
of
facilities
and
the
time/
effort
required
to
perform
this
research
would
initially
be
unknown.
The
researching
of
records
will
in
the
vast
majority
of
cases,
require
professional
labor
in
a
locality
that
is
different
(
oftentimes
substantially
so)
than
the
property
being
evaluated.

Response:
The
final
rule
provides
that
if
information
required
to
meet
the
objectives
of
the
all
appropriate
inquiries
cannot
be
found
or
collected
in
compliance
with
the
performance
factors,
which
include
gathering
information
that
is
publicly
available,
obtainable
from
its
source
within
reasonable
time
and
cost
constraints,
and
which
can
be
practicably
reviewed
(
see
§
312.20(
f)(
1)),
then
the
environmental
professional
should
document
the
lack
of
availability
of
the
information
as
a
data
gap.
If
required
information
cannot
be
found
or
collected
in
compliance
with
the
objectives
and
performance
factors
and
such
information
represents
data
gaps
that
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
then
the
data
gaps
and
their
significance
should
be
noted
in
the
written
report
of
findings
in
compliance
with
§
312.20(
f).
472
3.6
Visual
Inspections
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
8
Excerpt
Text:
Requirements
for
on­
site
inspections
are
also
appropriate.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
proposed
requirements.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
11
Excerpt
Text:
312.27
Visual
inspections
of
the
facility
and
of
adjoining
properties
We
support
this
section.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
this
provision
of
the
rule.
473
3.6.1
Visual
Inspection
of
the
Subject
Property
Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
7
Excerpt
Text:
Proposed
standard
for
conducting
visual
inspections.

a)
Page
#
52580
b)
View:
Visual
inspection
of
the
property
is
one
of
the
most
critical
aspects
of
the
AAI
process.
It
is
vital
to
inspect
all
areas
of
the
Subject
and
inside
all
Subject
Buildings.
Without
such
complete
access
and
inspection
the
AAI
process
should
be
considered
incomplete.
At
a
minimum
the
property
should
be
inspected
from
all
sides
from
the
adjoining
properties.
However
this
should
not
be
considered
adequate
and
the
EP
should
make
recommendations
that
a
re­
inspection
with
full
and
complete
access
should
be
conducted.
Inability
to
access
the
property
should
be
qualified
and
provide
an
opinion
on
relevance.

c)
Assumptions:
Without
full
and
complete
access
of
the
property,
AAI
cannot
be
properly
achieved.
The
following
risks
could
be
easily
overlooked;
internal
floor
drains,
hazardous
waste
storage,
chemical
staining,
chemical
spillage,
exterior
signs
of
USTs
(
i.
e.
vent
pipes),
surface
staining,
stressed
vegetation,
etc.

d)
Burden:
This
should
not
place
an
unreasonable
burden
on
the
EP.
This
is
a
main
part
of
any
Phase
I.

Response:
EPA
thanks
the
commenter
for
the
stated
support
and
input
regarding
this
provision
of
the
rule.
474
3.6.1.1
The
Agency
Should
Clarify
Whether
the
Visual
Site
Inspection
Must
Be
Performed
by
an
EP
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
6
Excerpt
Text:
Can
someone
under
the
supervision
of
the
environmental
professional
perform
a
site
visit?
§
312.27(
a)
is
not
clear
on
the
personnel
requirement
of
the
site
visit.

Response:
Yes.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
only
recommends
that
this
task
be
performed
by
an
environmental
professional.

Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
5
Excerpt
Text:
Visual
Inspections
of
the
facility
and
adjoining
properties.

Along
with
review
of
results
and
developing
conclusions,
the
site
inspection
is
one
of
the
most
important
elements
of
AAI.
It
is
a
key
inquiry
task
requiring
the
breadth
of
education,
experience,
and
judgment
of
an
EP
to
recognize
the
variety
of
physical
and
visual
evidence
that
may
indicate
a
release
or
threat
of
release.
This
evidence,
generally
visible
in
nature,
is
very
difficult
to
accurately
and
effectively
transfer
to
a
non­
participating
third
party
(
i.
e.
the
EP)
for
effective
evaluation
and/
or
quality
assurance.
Therefore,
I
strongly
recommend
that
the
EP
be
required
by
the
rules
to
perform,
not
just
supervise,
the
site
inspections.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
CES
Comment
Number:
0262
475
Excerpt
Number:
1
Excerpt
Text:
Nearly
all
of
the
discrepancies
between
what
the
EPA
requires
of
the
ASTM
E1527
document
and
the
proposed
regulation
have
been
met.
The
ASTM
E50
Committee
and
the
EPA
have
developed
a
strong
definition
of
an
environmental
professional
(
EP),
however,
a
key
area
of
weakness
in
CERCLA
defense
remains:
the
involvement
of
the
EP
in
conducting
the
on­
site
visual
inspection
(
site
reconnaissance).

The
proposed
regulation
states
in
strong
language
that
the
EPA
highly
recommends
that
the
EP
be
involved
in
the
on­
site
and
adjacent
site
reconnaissance
when
conducting
AAI,
but
falls
short
in
specifying
that
involvement.
The
proposed
regulation
states
that
the
EP
should
be,
at
a
minimum,
involved
in
the
"
planning"
of
the
site
reconnaissance.
If
this
language
were
to
stand,
there
will
be
no
net
change
between
what
is
currently
in
ASTM
E1527­
00
and
what
will
occur
when
40
CFR
§
312
takes
effect.
Approximately
95%
of
all
Recognized
Environmental
Conditions
(
REC)
are
identified
during
the
site
reconnaissance
portion
of
the
Phase
I
ESA,
and
only
5%
are
discovered
during
the
historical
research
and
property
records
review.

CES
has
conducted
Phase
I
ESAs
since
1990,
and
are
intimately
familiar
with
the
work
products
and
practices
of
our
industry.
There
are
usually
15­
20
key
areas
of
a
company
that
requires
evaluation
when
conducting
a
Phase
I
ESA.
This
number
increases
based
on
the
complexity
of
the
process
or
the
size
of
the
structure.
An
experienced
individual
is
required
to
identify
the
byproducts
of
a
particular
process,
what
wastes
are
generated,
and
where
shortcuts
would
be
made
by
a
company
trying
to
avoid
financial
responsibilities
in
the
due
diligence
process.
The
language,
as
it
is
proposed,
will
continue
the
practice
conducting
the
Phase
I
ESA
and
conducting
AAI
under
40
CFR
§
312
without
the
full
benefit
of
the
EP
being
involved
in
the
key
components
of
the
process.
There
are
two
primary
methodologies
for
conducting
a
Phase
I
ESA:
real
estate
agents,
brokers
and/
or
landowners
preparing
the
report,
or
selecting
a
consulting
firm
to
write
the
report.
The
definition
of
"
planning"
will
be
met
if
the
real
estate
agent/
broker
and/
or
landowner
conducts
the
Phase
I
ESA
and
provides
a
copy
to
an
EP
for
review.
This
is
unacceptable
as
the
broker/
agent/
landowner
is
not
qualified
to
identify
an
REC,
and
the
EP
will
also
not
identify
the
REC
since
they
are
relying
on
information
provided
to
them
by
the
preparer
of
the
report.
Similarly,
a
consulting
firm
will
rely
on
less
experienced
staff
to
conduct
the
site
reconnaissance
and
prepare
the
report,
with
the
EP
(
usually
a
project
manager)
reviewing
the
report.
Again,
the
EP
is
looking
through
the
eyes
of
the
preparer
of
the
report,
and
will
not
be
able
to
identify
things
that
the
inexperienced
personnel
missed.
Both
of
these
examples
will
meet
the
definition
of
"
planning"
as
identified
in
the
proposed
regulation.

CES
recommends
that
the
"
planning"
requirement
be
lifted
from
the
regulation,
and
is
replaced
with
language
that
requires
the
EP
be
on­
site
with
the
individual
tasked
with
the
responsibility
for
preparing
the
report.
The
site
reconnaissance
typically
requires
1­
3
hours
to
conduct
in
90%
of
properties
depending
on
complexity,
and
will
not
negatively
impact
the
profitability
of
those
conducting
the
Phase
I
ESA
or
the
AAI
inquiry
under
40
CFR
§
312.
Secondly,
by
having
a
provision
for
State­
certified
EP
programs,
there
will
be
no
need
for
a
professional
engineer
or
geologist
on­
site
which
also
contributes
to
increased
costs.
Junior
staffers
in
consulting
firms
and
brokers/
agents
with
three
years
experience
that
have
been
certified
by
a
State
program
will
476
meet
the
definition
of
an
EP,
and
will
be
qualified
to
either
accompany
a
non­
EP
to
the
site
reconnaissance
and
oversee
its
completion
or
conduct
the
investigation
on
their
own.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
5
Excerpt
Text:
The
preamble
strongly
suggests
in
several
places
(
including
FR,
page
52565)
that
an
EP
must
conduct
at
least
the
site
inspection;
however
it
also
states
(
FR,
page
52565,
last
paragraph)
that
it
would
be
sufficient
for
an
EP
to
be
involved
in
the
planning
of
a
site
inspection.

Comment:
We
strongly
encourage
you
to
specifically
define
those
aspects
of
the
site
investigation
that
must
be
performed
by
an
EP.
The
proposed
rule
is
not
clear
on
this
issue.
While
we
are
in
support
of
an
EP
being
involved
in
the
assessment
process,
we
also
feel
that
the
EP
should
supervise
and
sign­
off
on
the
document,
but
not
necessarily
be
obligated
to
perform
any
one
step
of
the
investigative
process.
In
addition,
the
implication
of
the
EP
performing
the
site
inspection,
but
not
necessarily
any
other
portion
of
the
assessment,
would
result
in
fragmenting
the
investigation
between
multiple
people.
In
our
experience,
this
multi­
person
staffing
approach
leads
to
a
greater
potential
for
important
information
to
be
lost
or
misinterpreted,
and
for
conflicts
between
what
is
seen,
and
what
the
research
indicates,
to
go
unresolved.
A
single
investigator
who
not
only
conducts
the
records
research,
but
also
performs
the
site
inspection
and
interviews
with
facility
personnel
is
the
preferred
approach.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
McKerr,
Thomas
477
Comment
Number:
0347
Excerpt
Number:
13
Excerpt
Text:
Role
of
the
Environmental
Professional
in
the
Visual
Inspection.
The
preamble
states
that
"
It
is
EPA's
recommendation
that
the
visual
inspections
of
the
subject
property
and
adjoining
properties
be
conducted
by
an
individual
who
meets
the
proposed
regulatory
definition
of
an
environmental
professional."
Why
does
section
312.27
fink
out?
If
the
EP
does
not
personally
perform
the
site
inspection
and
can
justify
it,
then
require
the
EP
to
state
the
justification
and
explain
why
the
property
inspector
that
did
the
inspection
was
qualified..
312.27:
If
any
aspect
of
the
AAI
requires
the
personal
experience
of
the
Environmental
Professional,
this
is
it.
Leave
an
"
out":
if
the
Environmental
Professional
is
not
the
actual
inspector,
he/
she
should
explain
why
not
and
also
explain
why
the
person
that
actually
did
the
site
inspection
was
qualified
to
do
so.
The
rule
proposes
that
releases
that
"
generally
would
not
pose
a
threat
to
human
health
or
the
environment"
can
be
excluded
but
this
is
strictly
dependent
of
the
judgment
of
the
Environmental
Professional.
How
can
this
be
done
properly
if
he/
she
is
not
there?

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Potter
and
Adams
Comment
Number:
0351
Excerpt
Number:
3
Excerpt
Text:
Please
clarify
whether
the
EP
must
conduct
the
site
visit.
Section
312.10(
b)(
5)
does
allow
a
person
not
meeting
the
definition
of
EP
to
assist
in
the
conduct
of
AAI
when
under
the
supervision
or
responsible
charge
of
an
EP.
This
idea
is
supported
in
the
Preamble
section
III.
K.
3.,
however,
this
section
of
the
Preamble
also
clearly
states
that
EPA
recommends
the
visual
inspection
be
conducted
by
an
EP.
Clarification
on
this
matter
is
requested,
in
light
of
the
litigious
nature
of
the
assessment
industry.
As
noted
below,
the
incremental
cost
increase
of
requiring
site
visits
to
be
conducted
by
the
EP
is
not
accounted
for
in
the
cost
analysis.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
478
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Terracon
Comment
Number:
0355
Excerpt
Number:
1
Excerpt
Text:
The
proposed
40CFR
part
312.27
requires
that
the
inquiry
of
the
environmental
professional
must
include
a
visual
inspection
of
the
facility
and
adjoining
properties.
The
inquiry
of
the
environmental
professional
is
defined
at
312.21
as
"
by
an
environmental
professional,
or
conducted
under
the
supervision
or
responsible
charge
of,
an
environmental
professional?".
Therefore,
the
proposed
rule
allows
the
visual
inspection
to
be
conducted
by
either
the
environmental
professional
or
someone
acting
under
the
supervision
or
responsible
charge
of
an
environmental
professional.
In
our
view,
the
proposed
rule
relies
on
the
judgement
of
the
environmental
professional
how
the
visual
inspection
should
be
conducted.
We
agree
with
the
proposed
rule
as
written
and
believe
it
is
consistent
with
the
statutory
requirements
of
all
appropriate
inquiries.
However,
in
the
preamble
to
the
proposed
rule,
the
EPA
recommends
that
visual
inspections
be
conducted
by
individuals
who
meet
the
proposed
regulatory
definition
of
an
environmental
professional.
Additionally,
the
EPA
infers
that
individuals
other
than
environmental
professionals
may
not
conduct
"
sufficient
and
accurate"
environmental
inspections.
Furthermore,
the
EPA
argues
that
the
environmental
professional
conducting
the
visual
inspection
is
"
vital"
to
the
process.
We
believe
that
the
EPA's
comments
within
the
preamble
are
inconsistent
and
contradictory
to
the
proposed
regulation.
By
making
such
strong
statements
and
recommendations,
the
EPA
is
in
effect
imposing
a
requirement
that
is
not
promulgated
in
the
proposed
regulation.
The
EPA
should
clearly
state
within
the
preamble
of
the
final
rule
that
an
environmental
professional
is
not
required
to
conduct
the
visual
inspection
and
it
is
solely
up
to
the
judgement
of
the
environmental
professional
as
to
who
conducts
the
visual
inspection.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
clearly
states
that
the
on­
site
visual
inspection
does
not
have
to
be
conducted
by
the
environmental
professional.

Commenter
Organization
Name:
Osuch,
Debra
Comment
Number:
0365
Excerpt
Number:
2
479
Excerpt
Text:
312.27
Visual
Inspections
of
the
facility
and
adjoining
properties.

The
site
inspection
is
one
of
the
most
important
elements
of
AAI.
It
is
a
key
inquiry
task
requiring
the
experience
and
judgment
of
an
Environmental
Professional.
Therefore,
I
recommend
that
the
Environmental
Professional
be
required
by
the
rules
to
perform,
not
just
supervise,
the
site
inspections.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
9
Excerpt
Text:
Role
of
the
Environmental
Professional
in
the
On­
Site
Visual
Inspection
of
the
Property.
Although
visual
inspection
of
the
subject
and
adjoining
properties
is
the
responsibility
of
the
environmental
professional
(
as
defined
in
proposed
section
312.10),
EPA
recognizes
that
"[
a]
person
who
does
not
qualify
as
an
environmental
professional
.
.
.
may
assist
in
the
conduct
of
all
appropriate
inquiries
..
.
if
such
person
is
under
the
supervision
or
responsible
charge
of
a
person
meeting
the
definition
of
an
environmental
professional.
.
.
when
conducting
such
activities."
Proposed
section
312.10(
b)(
5).
US
WAG
agrees
with
EPA
that
the
visual
inspection
need
not
be
conducted
solely
by
the
environmental
professional
but
may
"
be
conducted
under
the
supervision
or
responsible
charge
of
an
environmental
professional."
69
Fed.
Reg.
at
52565.
This
is
consistent
with
other
recent
EPA
regulations
that
assign
ultimate
responsibility
to
a
professional
but
allow
the
professional's
agent
to
conduct
the
site
visit.
See,
e.
g.,
40
C.
F.
R
§
112.3(
d)(
l)(
ii);
67
Fed.
Reg.
47042,
47054
(
July
17,
2002)
(
requiring
SPCC
plan
to
contain
an
attestation
that
a
professional
engineer
or
his
agent
visited
and
examined
the
facility).
EPA
should
confirm
that
"
under
the
supervision
or
responsible
charge"
does
not
require
the
physical
presence
of
the
environmental
professional.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
480
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
clearly
states
that
the
on­
site
visual
inspection
does
not
have
to
be
conducted
by
the
environmental
professional.

Commenter
Organization
Name:
Kehres
Comment
Number:
0395
Excerpt
Number:
3
Excerpt
Text:
Along
with
review
of
results
and
development
of
conclusions,
the
site
inspection
is
one
of
the
most
important
elements
of
AAI.
It
is
a
key
inquiry
task
requiring
the
breadth
of
education,
experience,
and
judgment
of
an
EP
to
recognize
the
variety
of
physical
and
visual
evidence
that
may
indicate
a
release
or
threat
of
release.
This
evidence,
generally
visible
in
nature,
is
very
difficult
to
accurately
and
effectively
transfer
to
a
nonparticipating
third
party
(
i.
e.
the
EP)
for
effective
evaluation
and/
or
quality
assurance.

Therefore,
I
strongly
recommend
that
the
EP
be
required
by
the
rules
to
perform,
not
just
supervise
the
site
inspections.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Andrews,
Douglas
Comment
Number:
0399
Excerpt
Number:
4
Excerpt
Text:
2.
312.27
Visual
Inspections
of
the
facility
and
adjoining
properties.

Along
with
review
of
results
and
development
of
conclusions,
the
site
inspection
is
one
of
the
most
important
elements
of
AAI.
It
is
a
key
inquiry
task
requiring
the
breadth
of
education,
experience,
and
judgment
of
an
EP
to
recognize
the
variety
of
physical
and
visual
evidence
that
may
indicate
a
release
or
threat
of
release.
This
evidence,
generally
visible
in
nature,
is
very
difficult
to
accurately
and
effectively
transfer
to
a
non­
participating
third
party
(
i.
e.
the
EP)
for
effective
evaluation
and/
or
quality
assurance.
Therefore,
I
strongly
recommend
that
the
EP
be
required
by
the
rules
to
perform,
not
just
supervise,
the
site
inspections.
481
Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
16
Excerpt
Text:
EP
Should
do
the
Site
Inspection.

a)
Page
#
52565
b)
View:
The
Goal
of
AAI
is
to
increase
quality
of
the
Phase
I,
not
to
shortcut
the
process.
The
site
inspection
must
be
conducted
by
the
EP,
as
they
have
the
experience
to
properly
evaluate
the
property
and
risks.
Current
field
practices
often
send
junior
employees
out
to
conduct
the
site
inspection
and
draft
the
basic
Phase
I
report.
This
is
a
function
of
time
and
money.
Senior
employees
are
often
bound
by
time
constraints,
and
not
available
to
complete
each
Phase
I,
and
junior
employees
are
expensed
at
a
lower
overhead.
This
practice
does
not
increase
the
quality
of
the
Phase
I
report,
achieve
the
objectives
of
AAI,
and
is
prone
to
more
mistakes
being
missed
in
the
Phase
I
process
by
unqualified
staff.

c)
Assumptions:
The
EP
is
narrowly
defined
within
this
proposal
to
qualify
individuals
to
conduct
Phase
I
reports.
If
the
purchaser
needs
to
rely
on
the
Phase
I
to
prove
in
court
they
conducted
AAI,
the
Site
Inspection
should
be
performed
by
an
EP.
Anything
less
will
not
assure
the
EP
has
complete
knowledge
and
involvement
in
the
process,
and
would
negate
the
relevance
of
their
signature.

d)
Burden:
Having
EP's
conduct
the
Site
Inspection
of
the
Phase
I
will
increase
quality
and
cost.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
482
Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
2
Excerpt
Text:
Requiring
an
Environmental
Professional
to
personally
perform
a
site
visit
will
add
more
than
EPA's
projected
$
539.
Since
an
EP
in
training
requires
from
3
to
5
years
experience,
almost
all
site
visits
will
now
have
to
be
perform
by
a
minimum
of
2
persons,
the
EP
and
the
EP
in
training
so
that
the
EP
in
training
can
obtain
the
required
experience.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Tramm,
Kenneth
Comment
Number:
0425
Excerpt
Number:
1
Excerpt
Text:
The
proposed
40CFR
part
312.27
requires
that
the
inquiry
of
the
environmental
professional
must
include
a
visual
inspection
of
the
facility
and
adjoining
properties.
The
inquiry
of
the
environmental
professional
is
defined
at
312.21
as
".
by
an
environmental
professional,
or
conducted
under
the
supervision
or
responsible
charge
of,
an
environmental
professional.".

Therefore,
the
proposed
rule
allows
the
visual
inspection
to
be
conducted
by
either
the
environmental
professional
or
someone
acting
under
the
supervision
or
responsible
charge
of
an
environmental
professional.
In
our
view,
the
proposed
rule
relies
on
the
judgement
of
the
environmental
professional
how
the
visual
inspection
should
be
conducted.
We
agree
with
the
proposed
rule
as
written
and
believe
it
is
consistent
with
the
statutory
requirements
of
all
appropriate
inquiries.
However,
in
the
preamble
to
the
proposed
rule,
the
EPA
recommends
that
visual
inspections
be
conducted
by
individuals
who
meet
the
proposed
regulatory
definition
of
an
environmental
professional.
Additionally,
the
EPA
infers
that
individuals
other
than
environmental
professionals
may
not
conduct
"
sufficient
and
accurate"
environmental
inspections.
Furthermore,
the
EPA
argues
that
the
environmental
professional
conducting
the
visual
inspection
is
"
vital"
to
the
process.
We
believe
that
the
EPA's
comments
within
the
preamble
are
inconsistent
and
contradictory
to
the
proposed
regulation.
By
making
such
strong
statements
and
recommendations,
the
EPA
is
in
effect
imposing
a
requirement
that
is
not
promulgated
in
the
proposed
regulation.
The
EPA
should
clearly
state
within
the
preamble
of
the
final
rule
that
an
environmental
professional
is
not
required
to
conduct
the
visual
inspection
and
483
it
is
solely
up
to
the
judgement
of
the
environmental
professional
as
to
who
conducts
the
visual
inspection.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
clearly
states
that
the
on­
site
visual
inspection
does
not
have
to
be
conducted
by
the
environmental
professional.

Commenter
Organization
Name:
Hoskins,
Herbert
Comment
Number:
0428
Excerpt
Number:
3
Excerpt
Text:
Along
with
review
of
results
and
development
of
conclusions,
the
site
inspection
is
one
of
the
most
important
elements
of
AAI.
It
is
a
key
inquiry
task
requiring
the
breadth
of
education,
experience,
and
judgment
of
an
EP
to
recognize
the
variety
of
physical
and
visual
evidence
that
may
indicate
a
release
or
threat
of
release.
This
evidence,
generally
visible
in
nature,
is
very
difficult
to
accurately
and
effectively
transfer
to
a
non­
participating
third
party
(
i.
e.
the
EP)
for
effective
evaluation
and/
or
quality
assurance.
Therefore,
I
strongly
recommend
that
the
EP
be
required
by
the
rules
to
perform,
not
just
supervise,
the
site
inspections.

Response:
EPA
appreciates
the
commenter's
input.
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.

Commenter
Organization
Name:
Haley
and
Aldrich
Comment
Number:
0432
Excerpt
Number:
3
Excerpt
Text:
We
also
concur
that
environmental
professional
does
not
have
to
do
all
of
the
work,
just
oversee
and
design
the
assessment;
however,
it
is
EPAs
"
recommendation"
that
visual
inspections
of
the
subject
property
and
adjoing
properties
actually
be
conducted
by
an
environmental
professional.
484
We
agree
that
the
person
conducting
the
site
visit
should
have
adequate
education
and
experience
but
we
disagree
that,
in
the
case
of
the
site
visit,
five
years
of
experience
is
required.
Although
it
is
only
EPA's
"
recommendation"
that
the
EP
conduct
the
site
visit,
we
feel
that
in
order
to
adequately
follow
the
AAI
rule,
you
would
need
to
follow
EPA's
"
recommendations".
In
addition,
although
the
Preamble
states
that
it
is
just
the
"
recommendation"
of
EPA
that
the
EP
conduct
the
site
visit,
under
the
actual
rule
in
section
312.27
which
describes
the
site
visit,
it
states:
"
the
inquiry
of
the
environmental
professional
must
include "
indicating
it
is
the
EP
who
must
conduct
the
site
visit.
We
propose
instead
that
two
years
of
relevant
experience
be
required
for
the
person
conducting
the
site
visit
and
that
the
environmental
professional
be
involved
in
planning
for
the
on­
site
visual
inspection.

Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
clearly
states
that
the
on­
site
visual
inspection
does
not
have
to
be
conducted
by
the
environmental
professional.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
PM­
0127­
0012
Excerpt
Number:
1
Excerpt
Text:
I
think
there's
a
conflict
in
the
portion
of
the
documentation
that
calls
for
an
environmental
professional
to
do
the
visual
site
visit,
in
one
paragraph,
and
in
the
following
paragraph,
it
calls
that
the
environmental
professional
should
at
a
minimum
be
involved
in
the
planning
of
the
site
visit.

I
think
that
needs
to
be
clarified,
as
to
whether
or
not
the
environmental
professional
himself
or
themselves,
will
be
required
to
do
the
visual
site
inspection.

Typically,
that's
done
by
a
technician
type
person,
and
the
findings,
along
with
the
pictures,
are
brought
back
to
be
reviewed
by
the
environmental
professional
under
the
environmental
professional's
responsible
charge.

Requiring
a
professional
engineer,
a
professional
geologist
to
spend
five
hours
to
drive
to
the
site,
do
the
inspection,
take
the
pictures,
do
a
site
sketches,
it's
going
to
add
tremendously
to
the
cost
of
the
Phase
I.
Your
proposed
$
41
to
$
47
would
be
more
like
$
400
to
$
600,
increasing
the
cost
of
the
Phase
I.
485
Response:
EPA
continues
to
recommend
that
an
individual
meeting
the
definition
of
an
environmental
professional
conduct
the
on­
site
visual
inspection.
However,
based
upon
input
from
other
commenters
and
the
Agency's
concerns
regarding
the
burden
that
may
be
placed
upon
some
prospective
property
owners,
the
final
rule
does
not
require
that
the
on­
site
visual
inspection
be
performed
by
an
environmental
professional.
An
individual
not
meeting
the
definition
of
environmental
professional
but
under
the
supervision
or
responsible
charge
of
an
environmental
professional
may
perform
the
on­
site
visual
inspection
of
the
subject
property.
In
the
preamble
to
the
final
rule
EPA
clearly
states
that
the
on­
site
visual
inspection
does
not
have
to
be
conducted
by
the
environmental
professional.
486
3.6.1.2
Visual
Inspection
of
Very
Large
Properties
Commenter
Organization
Name:
R.
W.
Beck,
Inc.
Comment
Number:
0247
Excerpt
Number:
1
Excerpt
Text:
The
proposed
rule
requires
that
visual
on­
site
inspections
include
"
areas
where
hazardous
substances
may
be
or
may
have
been
used,
stored,
treated,
handled,
or
disposed."
Certain
Phase
I
ESAs
that
we
have
performed
have
been
conducted
for
very
large
properties,
on
the
order
of
100,000
acres
or
more.
These
properties
may
be
remote,
do
not
usually
have
restricting
physical
limitations
to
visual
inspection
(
except
for
snow
or
impassable
roads),
but
are
so
large
as
to
make
close
visual
inspection
impractical,
or
impossible
in
terms
of
the
time
constraints
imposed
for
providing
useful
information
to
the
prospective
purchaser.
Such
properties
(
in
the
case
of
timber
property)
have
reasonable
access
to
areas
where
hazardous
substances
may
have
been
used
(
e.
g.,
new
or
old
timber
roads
to
recent
or
historical
large­
scale
timbering
operations).
However,
roads
can
be
so
numerous,
that
again,
visual
inspection
of
all
roads
(
and
the
adjacent
areas
where
hazardous
substances
were
used
in
the
timbering
operation)
is
neither
practical,
nor
possible
in
terms
of
time
constraints.
Further,
it
would
not
be
unusual
for
such
a
100,000­
acre
property,
that
the
legal
boundary
with
adjoining
properties
can
approach
80
or
more
linear
miles,
often
in
remote,
or
inaccessible
areas.
Therefore,
while
"
every
effort"
would
be
made
to
conduct
the
onsite
inspection
for
AAI
purposes,
it
is
not
clear
what
level
of
visual
inspection
is
required
for
a
property
of
such
large
proportion,
in
order
to
meet
the
AAI
standard.
To
date,
such
efforts
have
been
performed
via
helicopter
(
which
does
not
allow
a
close
visual
inspection),
4­
wheel
drive
access,
or
walking
(
to
specific
areas
of
concern).
The
EPA
should
provide
additional
clarification
of
the
term
"
visual
inspection",
especially
at
very
large
properties.

Response:
The
final
rule,
as
did
the
proposed
rule,
requires
that
an
on­
site
visual
inspection
be
conducted
of
the
subject
property.
The
on­
site
visual
inspection
must
include
a
visual
inspection
of
the
areas
where
hazardous
substances
may
be
or
may
have
been
used,
stored,
treated,
handled,
or
disposed.
The
final
rule
requires
that
physical
limitations
to
the
visual
inspection
must
be
noted,
including
limitations
such
as
those
mentioned
by
the
commenter.

The
final
rule
provides
a
limited
exemption
from
the
on­
site
visual
inspection
in
the
unusual
circumstances
where
the
prospective
property
owner
or
environmental
professional
cannot
gain
access
to
the
property
due
to
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.
In
such
circumstances,
a
visual
inspection
must
be
conducted
from
an
"
off­
site"
vantage
point.
Documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
should
be
noted
in
the
written
report.

EPA
understands
that
visual
inspections
of
large
properties
may
be
difficult.
However,
the
Agency
advises
that
every
effort
should
be
made
to
visually
inspect
those
areas
where
hazardous
substances
may
be
or
may
have
been
used,
stored,
treated,
handled,
or
disposed.
The
prospective
487
property
owner
must
be
aware
of
any
releases
or
threatened
releases
from
these
areas
to
ensure
that
if
he
or
she
purchases
the
property
he
or
she
can
comply
with
the
statutorily­
imposed
continuing
obligations
to
retain
protection
from
CERCLA
liability.
488
3.6.2
Limited
Exemption
from
Conducting
an
On­
Site
Inspection
of
the
Subject
Property
Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
14
Excerpt
Text:
This
good
faith
exception
appears
to
be
an
extraneous
provision
for
very
limited
circumstances.
It
is
subject
to
misinterpretation
concerning
the
satisfaction
of
good
faith
effort.
It
would
better
be
handled
as
a
data
gap
under
the
current
AAI
rule
or
as
a
limitation
under
the
current
ASTM
practice.

Response:
The
definition
of
good
faith
in
the
final
rule
is
"
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."
EPA
believes
that
this
sets
a
high
standard
for
the
limited
exemption
to
the
requirement
to
perform
an
on­
site
visual
inspection
of
the
subject
property.

The
final
rule
provides
a
limited
exemption
from
the
on­
site
visual
inspection
only
in
the
unusual
circumstances
where
the
prospective
property
owner
or
environmental
professional
cannot
gain
access
to
the
property
due
to
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.
In
such
circumstances,
a
visual
inspection
must
be
conducted
from
an
"
off­
site"
vantage
point.
Documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
should
be
noted
in
the
written
report.
These
requirements
are
similar
to
the
requirements
to
document
data
gaps.

Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
6
Excerpt
Text:
2.
Unauthorized
Broad
and
Vague
Exceptions
to
Site
Inspection
Requirements
Section
223
of
the
Brownfields
law
requires
that
AAI
rules
must
include:

(
VI)
Visual
inspections
of
the
facility
and
of
adjoining
properties.

The
97
ASTM
standards
also
requires
visual
inspections
and
sets
forth
detailed
criteria
on
how
those
inspections
are
to
be
conducted.
Limitations
on
site
reconnaissance
are
limited
to
things
like
physical
barriers,
such
as
bodies
of
water
or
pavement.

The
proposed
final
draft
AAI
rules
in
section
312.27
contain
several
different
exceptions
to
the
visual
inspection
requirement.
These
broad
and
vague
exceptions
are
an
invitation
to
abuse,
and
the
exceptions
include
the
inability
to
obtain
access
to
the
property
provided
good
faith
efforts
489
have
been
made
to
obtain
such
access.
The
mere
refusal
of
a
voluntary
seller
does
not
qualify
for
the
exception­
but
this
provides
little
protection.
The
Brownfields
law
does
not
authorize
this
exception,
period.

These
exceptions
cut
a
hole
in
one
of
the
most
critical
requirements
in
the
Brownfields
law.
The
site
inspection
is
often
one
of
the
most
important
ways
that
the
condition
of
a
property
can
be
assessed
and
information
brought
to
light
that
may
not
have
come
to
the
attention
of
regulators.
Providing
broad
and
vague
exceptions
to
the
site
inspection
requirement
make
it
much
more
likely
sites
will
not
be
inspected.
This
would
allow
the
seller
to
receive
an
inflated
purchase
price
and
potentially
put
those
profits
out
of
reach
for
cleanup
costs.
At
the
same
time,
the
unsuspecting
purchaser
can
end
up
with
a
contaminated
property
that
may
be
difficult
to
manage.
This
property
may
be
unusable
for
its
planned
purpose
because
of
circumstances
that
may
have
been
easily
discoverable
upon
inspection.

At
the
same
time,
despite
less
than
adequate
investigation,
the
purchaser
may
obtain
an
exemption
from
liability
without
taking
steps
to
address
the
contamination
as
is
usually
required
in
the
Brownfields
Law.
A
purchaser
will
simply
claim
it
was
not
reasonable
to
expect
such
steps
to
be
taken
because
they
"
did
not
know"
about
the
problem.
The
result
is
that
the
taxpayer
is
more
likely
to
be
left
to
clean
up
the
site.

Response:
EPA
disagrees
with
the
commenter.
The
final
rule
provides
a
very
limited
exemption
from
the
requirement
to
perform
an
on­
site
visual
inspection
for
unusual
circumstances
and
only
after
all
"
good
faith"
efforts
are
made
to
gain
access
to
a
property.
The
limited
exemption
only
exempts
the
prospective
property
owner
(
or
grantee)
and
environmental
professional
from
performing
the
visual
inspection
"
on­
site."
In
ALL
cases,
a
visual
inspection
must
be
performed.

More
explicitly,
the
final
rule
provides
a
limited
exemption
from
the
on­
site
visual
inspection
only
in
the
unusual
circumstances
where
the
prospective
property
owner
or
environmental
professional
cannot
gain
access
to
the
property
due
to
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.
In
such
circumstances,
a
visual
inspection
must
be
conducted
from
an
"
off­
site"
vantage
point.
Documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
should
be
noted
in
the
written
report.
These
requirements
are
similar
to
the
requirements
to
document
data
gaps.

The
definition
of
good
faith
in
the
final
rule
is
"
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."
EPA
believes
that
this
sets
a
high
standard
for
the
limited
exemption
to
the
requirement
to
perform
an
on­
site
visual
inspection
of
the
subject
property.

EPA
asserts
that
the
commenter
is
incorrect
in
stating
that
"
despite
less
than
adequate
investigation,
the
purchaser
may
obtain
an
exemption
from
liability
without
taking
steps
to
address
the
contamination
as
is
usually
required
in
the
Brownfields
Amendments.
The
Small
490
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
"
Brownfields
Amendments")
establishes
many
conditions
with
which
a
property
owner
must
comply
to
obtain
protection
from
CERCLA
liability.
The
conduct
of
all
appropriate
inquiries
is
merely
an
initial,
pre­
acquisition,
requirement
for
obtaining
liability
protection.
Once
a
person
owns
a
property,
he
or
she
must
comply
with
continuing
obligations,
including
stopping
on­
going
releases
and
taking
appropriate
care
to
reduce
exposure
to
releases
and
threatened
releases
of
hazardous
substances.
A
person
cannot
simply
claim
he
or
she
is
not
responsible
or
did
not
know
of
the
contamination.
Innocent
landowners
and
contiguous
property
owners
must
establish
in
a
court
that
they
did
not
know
and
had
no
reason
to
know
of
contamination.
Bona
fide
prospective
purchasers
may
buy
property
with
the
knowledge
of
contamination,
but
must
identify
the
contamination
prior
to
purchase.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
19
Excerpt
Text:
The
Pre­
Amble
states,
"
The
mere
refusal
of
a
voluntary
seller
to
provide
access
to
the
subject
property
does
not
constitute
an
unusual
circumstance."
While
R&
W
acknowledges
a
voluntary
seller
should
readily
provide
access,
if
this
is
not
the
case,
does
the
EPA
expect
an
EP
to
trespass
and
violate
the
law?
R&
W
requests
that
the
EPA
eliminate
this
statement
or
provide
clarification
that
trespassing
is
not
the
intent
of
this
statement.

Response:
Prospective
property
owners
and
grantees
should
undertake
additional
steps,
whenever
possible,
to
gain
access
to
a
property
to
conduct
all
appropriate
inquiries,
if
the
current
property
owner
initially
refuses
access.
For
example,
prospective
property
owners
and
grantees
should
seek
the
assistance
of
local
and
state
government
officials.

Commenter
Organization
Name:
Congressmen
Dingell,
Boxer,
et
al
Comment
Number:
0332
Excerpt
Number:
5
Excerpt
Text:
Section
101(
35)(
B)
of
CERCLA
as
amended
by
section
223
of
the
Brownfields
law
also
requires
that
the
standards
and
practices
established
in
the
AAI
rule
shall
include
visual
inspections
of
the
facility
and
the
adjoining
properties.
Under
Section
312.27
of
the
proposed
AAI
rule,
EPA
proposes
unauthorized
and
ill­
advised
exemptions
to
this
requirement.
Actual
visual
inspection
of
a
facility
is
central
to
every
environmental
inquiry.
Interestingly,
EPA
acknowledges
this
fact
in
the
preamble
to
the
proposed
AAI
rule.
"
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"
(
69
Federal
Register
52564).
Despite
this
acknowledgment,
and
the
express
condition
in
the
Brownfields
law,
EPA
provides
unauthorized
and
potentially
broad
exemptions
to
this
requirement.
491
Exemptions
include
weather,
the
location
of
the
property,
and
refusal
by
the
seller
to
allow
access
despite
good
faith
efforts
by
the
purchaser.
The
opportunity
for
mischief
is
great.
An
owner's
refusal
to
allow
access
is
a
red
flag
in
any
transaction,
and
without
inspection,
the
risk
that
contamination
will
go
undiscovered
is
unacceptably
high.
Anyone
can
still
purchase
a
property
under
these
circumstances,
but
to
grant
a
waiver
from
liability
or
to
provide
other
federal
benefits
without
an
inspection
does
not
reflect
the
core
principles
of
the
Brownfields
law
­
that
environmental
protection
and
polluter
pay
principles
not
be
sacrificed.
EPA's
proposal
to
limit
inspections
of
adjoining
properties
is
also
not
authorized
by
the
law.

Again,
if
contamination
goes
undiscovered,
a
seller
who
has
refused
entry
on
the
property
may
profit
from
the
lack
of
disclosure
and
put
the
profits
out
of
reach
before
the
problem
is
discovered.
The
property
may
not
be
suitable
for
redevelopment,
and
it
may
not
qualify
as
a
Brownfields
site
where
that
is
an
issue,
though
it
may
be
treated
as
one
by
the
parties.
Purchasers
may
also
argue
that
they
are
entitled
to
environmental
liability
exemptions
without
taking
reasonable
steps
required
by
the
statute
to
mitigate
the
contamination,
as
long
as
they
do
not
discover
the
contamination.
In
fact,
in
EPA
Interim
Guidance
issued
on
March
6,
2003,
on
Limitations
on
CERCLA
Liability,
EPA
finds
that
"[
k]
nowledge
of
contamination
and
the
opportunity
to
plan
prior
to
purchase
should
be
factors
in
evaluating
what
are
reasonable
steps"
(
p.
11).
Thus,
a
party
that
does
not
find
contamination
is
potentially
rewarded
because
it
would
not
be
reasonable
to
require
that
they
take
steps
to
address
contamination
when
they
do
not
know
about
it.

Clearly,
the
exemptions
from
site
inspections
provide
an
opportunity
for
parties
to
make
it
easier
to
satisfy
the
AAI
standard,
and
if
they
satisfy
the
other
statutory
requirements,
they
escape
liability.
Thus,
a
party
that
never
does
an
adequate
inquiry
may
allow
the
contamination
to
go
unaddressed
indefinitely,
potentially
without
liability.
We
recognize
that
this
will
not
happen
in
every
case
and
that
multiple
factors
must
be
satisfied
before
liability
relief
is
granted.
Nevertheless,
to
allow
such
a
minimum
standard
for
AAI
undermines
an
important
safeguard
against
abuse
of
the
liability
exemption.

Response:
The
final
rule,
as
did
the
proposed
rule,
provides
no
exemption
from
the
visual
inspection
requirement.
In
very
limited
circumstances,
the
final
rule
provides
an
exemption
from
the
requirement
to
conduct
the
visual
inspection
on­
site.
The
final
rule
provides
a
limited
exemption
from
the
on­
site
visual
inspection
only
in
the
unusual
circumstances
where
the
prospective
property
owner
or
environmental
professional
cannot
gain
access
to
the
property
due
to
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.
In
such
circumstances,
a
visual
inspection
must
be
conducted
from
an
"
off­
site"
vantage
point.
Documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
should
be
noted
in
the
written
report.
These
requirements
are
similar
to
the
requirements
to
document
data
gaps.

The
commenter
is
incorrect
in
asserting
that
the
conduct
of
all
appropriate
inquiries
(
with
or
without
an
on­
site
visual
inspection)
results
in
waiver
from
liability.
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
"
Brownfields
Amendments")
establishes
492
many
conditions
with
which
a
property
owner
must
comply
to
obtain
protection
from
CERCLA
liability.
The
conduct
of
all
appropriate
inquiries
is
merely
an
initial,
pre­
acquisition,
requirement
for
obtaining
liability
protection.
Once
a
person
owns
a
property,
he
or
she
must
comply
with
continuing
obligations,
including
stopping
on­
going
releases
and
taking
appropriate
care
to
reduce
exposure
to
releases
and
threatened
releases
of
hazardous
substances.
A
person
cannot
simply
claim
he
or
she
is
not
responsible
or
did
not
know
of
the
contamination.
Innocent
landowners
and
contiguous
property
owners
must
establish
in
a
court
that
they
did
not
know
and
had
no
reason
to
know
of
contamination.
Bona
fide
prospective
purchasers
may
buy
property
with
the
knowledge
of
contamination,
but
must
identify
the
contamination
prior
to
purchase.
In
addition,
the
Brownfields
Amendments
provides
no
liability
protections
for
sellers
of
contaminated
properties.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
10
Excerpt
Text:
Inability
to
Gain
Access
to
the
Subject
Property
to
Conduct
Visual
Inspection
of
the
Subject
Property
Prior
to
Acquisition.
We
are
generally
in
agreement
with
EPA's
resolution
of
the
unusual
circumstance
where
the
purchaser
is
unable
to
gain
access
to
the
property
prior
to
acquisition.
See
proposed
section
312.27(
c);
69
Fed.
Reg.
at
52564­
65.
US
WAG
believes
that
once
the
purchaser
has
made
reasonable
efforts
to
gain
access,
embodied
in
the
phrase
"
good
faith
(
as
defined
in
§
312.10)
efforts",
the
purchaser
should
not
lose
his
eligibility
for
CERCLA
liability
protections.

Response:
If,
after
taking
all
good
faith
efforts,
a
prospective
landowner
or
grantee
cannot
gain
access
to
a
property,
then
the
environmental
professional
must
conduct
the
visual
inspection
from
another
vantage
point.
In
addition,
documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
must
be
noted
in
the
written
report.
Also,
if
data
gaps
result
because
access
could
not
be
gained,
the
data
gaps
and
their
significance
must
be
noted
in
the
written
report.
EPA
notes
that
the
mere
failure
to
gain
access
to
a
property
to
conduct
an
on­
site
visual
inspection
should
not
result
in
a
purchaser
(
or
grantee)
losing
his
or
her
eligibility
for
the
CERCLA
liability
protections,
as
long
as
he
or
she
is
in
compliance
with
the
other
statutory
requirements
for
obtaining
protection
from
liability.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
15
Excerpt
Text:
­
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.
493
­­
The
proposed
requirement
echoes
existing
standards
for
conducting
a
visual
reconnaissance
of
a
subject
property.
However,
Intertox
disagrees
that
the
onsite
inspection
can
provide
the
best
source
of
information.
At
best
the
onsite
inspection
reveals
indications
of
environmental
conditions
on
a
specific
day
and
point
in
time
and
may,
provided
the
environmental
professional
makes
inquiries,
reveal
documents
of
interest.
But
more
generally,
the
on­
site
inspection
is
a
"
snap­
shot­
in­
time"
and
must
be
supplemented
with
historical
resources
such
as
fire
insurance
maps,
city
directories,
and
aerial
photographs.
It
is
critical
that
good
faith
efforts
be
made
to
visually
inspect
the
subject
property,
however,
Intertox
recognizes
certain
limitations
(
i.
e.,
weather,
violent
animals,
and
disgruntled
property
owners,
operators,
and
occupants)
may
prevent
this.
Therefore,
we
disagree
that
the
mere
refusal
of
a
property
owner
does
not
constitute
an
unusual
circumstance.
It
is
our
experience
that
the
personal
safety
of
the
assessors
is
more
important
than
the
outcome
of
the
all
appropriate
inquiry
and
we
support
refusal
to
allow
entry
as
an
unusual
circumstance.

Response:
Prospective
property
owners
and
grantees
should
undertake
additional
steps,
whenever
possible,
to
gain
access
to
a
property
to
conduct
all
appropriate
inquiries,
if
the
current
property
owner
initially
refuses
access.
For
example,
prospective
property
owners
and
grantees
should
seek
the
assistance
of
local
and
state
government
officials.

Commenter
Organization
Name:
Sierra
Club
&
NET
Comment
Number:
0419
Excerpt
Number:
3
Excerpt
Text:
­­
The
Proposed
AAI
Rule
Contains
Loopholes
That
Allow
Site
Inspections
to
Be
Avoided
Altogether
Before
Sale
Or
Transfer
Of
A
Property
Section
312.27
of
the
proposed
AAI
rule
contains
several
vague
exceptions
to
the
visual
inspection
requirements
in
Section
223
of
the
Brownfields
Law.
The
Brownfields
Law
contains
no
such
exceptions.
Visual
inspection
is
at
the
very
heart
of
any
environmental
inquiry.
Without
a
site
inspection
by
qualified
personnel,
environmental
problems
can
remain
undiscovered
­
allowing
the
seller
to
get
a
higher
purchase
price
and
potentially
keeping
the
purchaser
in
the
dark
on
the
condition
of
a
property
which
may
grow
worse
overtime.

The
proposed
AAI
rule
will
encourage
purchasers
to
argue
they
have
no
duty
to
mitigate
contamination
that
is
not
documented
in
the
AAI
inquiry
while
retaining
a
liability
exemption
and
making
it
less
likely
that
contamination
will
be
identified
or
mitigated
by
the
purchaser
as
anticipated
by
the
Brownfields
Law.

Response:
The
final
rule,
as
did
the
proposed
rule,
provides
no
exemption
from
the
visual
inspection
requirement.
In
very
limited
circumstances,
the
final
rule
provides
an
exemption
from
the
requirement
to
conduct
the
visual
inspection
on­
site.
The
final
rule
provides
a
limited
exemption
from
the
on­
site
visual
inspection
only
in
the
unusual
circumstances
where
the
prospective
494
property
owner
or
environmental
professional
cannot
gain
access
to
the
property
due
to
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.
In
such
circumstances,
a
visual
inspection
must
be
conducted
from
an
"
off­
site"
vantage
point.
Documentation
of
efforts
undertaken
to
obtain
access
and
an
explanation
of
why
such
efforts
were
unsuccessful
should
be
noted
in
the
written
report.
These
requirements
are
similar
to
the
requirements
to
document
data
gaps.

The
commenter
is
incorrect
in
asserting
that
the
conduct
of
all
appropriate
inquiries
(
with
or
without
an
on­
site
visual
inspection)
results
in
encouraging
purchasers
to
argue
they
have
no
duty
to
mitigate
contamination
while
retaining
a
liability
exemption.
Purchasers
must
stop
ongoing
releases
regardless
of
whether
they
are
documented
in
the
all
appropriate
inquiries
report.
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
the
"
Brownfields
Amendments")
establishes
many
conditions
with
which
a
property
owner
must
comply
to
obtain
protection
from
CERCLA
liability.
The
conduct
of
all
appropriate
inquiries
is
merely
an
initial,
pre­
acquisition,
requirement
for
obtaining
liability
protection.
Once
a
person
owns
a
property,
he
or
she
must
comply
with
continuing
obligations,
including
stopping
on­
going
releases
and
taking
appropriate
care
to
reduce
exposure
to
releases
and
threatened
releases
of
hazardous
substances.
A
person
cannot
simply
claim
he
or
she
is
not
responsible
or
did
not
know
of
the
contamination.
Innocent
landowners
and
contiguous
property
owners
must
establish
in
a
court
that
they
did
not
know
and
had
no
reason
to
know
of
contamination.
Bona
fide
prospective
purchasers
may
buy
property
with
the
knowledge
of
contamination,
but
must
identify
the
contamination
prior
to
purchase.
In
addition,
the
Brownfields
Amendments
provides
no
liability
protections
for
sellers
of
contaminated
properties.
495
3.6.2.1
Physical
Limitations
Commenter
Organization
Name:
Beaver,
Christine
Comment
Number:
0074
Excerpt
Number:
1
Excerpt
Text:
With
regard
to
the
proposed
requirement
for
visual
inspection
of
the
subject
property,
it
should
be
noted
that
physical
limitations
could
include
a
building
that
is
in
structurally
poor
condition
making
it
unsafe
for
the
environmental
professional
to
gain
access
(
as
per
OSHA
regulations).
It
is
my
opinion
that
the
exemption
from
conducting
on
site
inspection
when
good
faith
efforts
result
in
inability
to
obtain
access
to
the
property
should
also
apply
to
a
property
where
the
building
is
in
structurally
poor
condition.

Response:
The
final
rule
does
not
require
environmental
professionals
to
enter
unsafe
buildings.
If
an
environmental
professional
concludes
that
the
on­
site
visual
inspection
cannot
be
completed
because
of
unsafe
conditions,
the
environmental
professional
should
document
the
limitations
and
the
data
gaps
associated
with
the
limited
access.
In
addition,
the
significance
of
any
data
gaps
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
must
be
noted
in
the
written
report.

Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
4
Excerpt
Text:
Regarding
the
heading
of
What
Are
the
Proposed
Requirements
for
Visual
Inspections
of
the
Subject
Property
and
Adjoining
Properties?
on
page
52564
of
the
proposed
rule:

­
it
states
" 
on­
site
inspection
of
the
subject
property
be
conducted
in
all
but
a
few
very
limited
cases
and
that
physical
limitations 
be
documented."

­
If
the
EPA
has
ideas
if
which
properties
fall
into
the
"
very
limited
cases"
they
should
be
listed
to
avoid
suppositions.

­
Regarding
the
issue
of
documenting
physical
limitations
(
such
as
snow
cover,
locked
doors,
flooding,
etc.),
how
do
these
limitations
come
into
play
with
the
statement
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."
Notwithstanding
the
economic
considerations,
would
not
a
prudent
EP
make
another
attempt
to
overcome
these
physical
limitations?

Response:
Examples
of
limited
circumstances
that
could
result
in
an
ability
to
claim
the
exemption
from
496
conducting
an
on­
site
visual
inspection
are
provided
in
the
final
rule,
and
were
provided
in
the
proposed
rule.
These
limited
circumstances
include
physical
limitations,
remote
and
inaccessible
location,
or
other
inability
to
obtain
access
to
the
property.

When
an
environmental
professional
signs
a
written
report
indicating
"[
I,
We]
have
developed
and
performed
the
all
appropriate
inquiries
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
Part
312,"
conformance
includes
conforming
with
any
applicable
exemptions
and
the
conditions
for
qualifying
for
the
exemptions.

EPA
agrees
with
the
commenter
that
it
would
be
prudent
for
an
environmental
professional
to
make
more
than
one
attempt
to
gain
access
to
a
property
to
conduct
a
visual
on­
site
inspection.
497
3.6.3
Visual
Inspection
of
Adjoining
Properties
Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
4
Excerpt
Text:
Adjacent
property
inspections
should
only
be
performed
from
inside
the
boundary
of
subject
tract
or
public
rights­
of­
way.
Visual
inspection
of
adjacent
properties
can
be
hindered
by
those
landowners
not
being
willing
to
grant
access.
Additional
this
can
become
extremely
expensive
because
and
time
consuming,
both
in
the
field
and
in
the
office,
report
writing.

Response:
The
final
rule
does
not
require
the
visual
inspection
of
adjoining
properties
to
be
conducted
onsite
Inspections
of
adjoining
properties
may
be
conducted
from
off­
site
vantage
points,
including
the
property
boundaries
and
public
rights­
of­
way.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
22
Excerpt
Text:
VISUAL
INSPECTIONS
OF
NEIGHBORING
PROPERTIES
1)
FAA
agrees
that
allowing
visual
inspections
of
neighboring
properties
from
the
shared
property
line
or
public
right­
of­
ways
is
a
good
idea.
Requiring
an
on­
site
inspection
of
adjoining
properties
is
a
very
bad
idea
­
especially
at
potentially
dangerous
property
(
e.
g.,
bad
neighborhoods,
hostile
neighbors,
construction
sites).

Response:
The
statute
(
at
§
101(
35)(
B)(
iii)(
VI))
clearly
requires
that
all
appropriate
inquiries
include
inspections
of
adjoining
properties.
The
final
rule
does
not
require
the
visual
inspection
of
adjoining
properties
to
be
conducted
on­
site.
Inspections
of
adjoining
properties
may
be
conducted
from
off­
site
vantage
points,
including
the
property
boundaries
and
public
rights­
ofway

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
16
Excerpt
Text:
­
Adjoining
property:
Why
does
it
have
to
be
a
public
thoroughfare?
Railroads
are
not
public
thoroughfares.
Delete
"
public"
or
change
to
"
public
and
private
thoroughfares."
498
Response:
"
Public"
rights­
of­
way
or
thoroughfares
were
provided
as
an
example
of
an
alternative
vantage
point.
Environmental
professionals
may
know
of
other
vantage
points
and
may
make
use
of
them.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
15
Excerpt
Text:
­
Visual
Inspections
of
Adjoining
Properties
The
criteria
provided
by
Congress
in
the
Brownfields
Revitalization
Act
include
"
Visual
inspections
of
the
facility
and
of
adjoining
properties."
ASTM
E1527­
00
§
8
"
Site
Reconnaissance"
provides
that
"
To
the
extent
that
current
uses
of
adjoining
properties
are
visually
and/
or
physically
observed
on
the
site
visit.
.
.
they
shall
be
identified
in
the
report,
and
current
uses
so
identified
shall
be
described."
ASTM
E1527­
00
§
8.4.1.3.
In
the
proposed
rule,
the
committee
allowed
visual
inspections
of
adjacent
properties
to
be
fulfilled
by
inspection
of
aerial
photographs.
Proposed
§
312.27(
a)(
2).
Review
of
aerial
photographs
showing
the
subject
property
and
adjacent
properties
is
already
customary
practice
under
ASTM
E1527­
00
§
7.3.4.1.
The
committee
also
recognizes
that
on­
site
access
to
adjacent
properties
is
not
required
and
that
visual
inspection
from
the
subject
property
or
public
right
of
way
may
not
yield
an
entire
view
of
the
adjacent
property.
We
see
no
reason
why
existing
ASTM
practice
and
the
wording
of
ASTM
section
8.4.1.3
does
not
fulfill
the
statutory
criteria
of
including
visual
inspections
of
adjoining
properties.

To
the
extent
EPA
desires
additional
comfort
it
could
change
the
word
"
that"
to
"
practicable"
and
change
the
word
"
are"
to
the
words
"
shall
be"
in
the
above
quoted
sentence
from
ASTM
section
8.4.1.3.

Response:
EPA
appreciates
the
commenter's
input.
The
statute
(
at
§
101(
35)(
B)(
iii)(
VI))
clearly
requires
that
all
appropriate
inquiries
include
inspections
of
adjoining
properties.
EPA's
point,
in
the
preamble
to
the
proposed
rule,
was
that
the
ASTM
E1527­
2000
does
not
explicitly
require
the
inspection
of
adjoining
properties
in
all
circumstances.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
6
Excerpt
Text:
EPA
is
mistaken
when
it
states
that
"
ASTM
E­
1527­
2000
does
not
mandate
visual
inspections
of
adjoining
properties."
Ibid.
Section
8.4.1.3
of
the
ASTM
standard
requires
visual
inspections
of
adjoining
properties.
In
addition,
section
8.4.1.5
requires
identification
of
property
uses
beyond
adjoining
properties
if
in
the
environmental
professional's
judgment
the
uses
are
likely
to
499
indicate
recognized
environmental
conditions
on
the
subject
property.
The
standard
also
requires
that
historical
uses
of
adjoining
properties
"
shall
be
described
in
the
report
if
they
are
likely
to
indicate
recognized
environmental
conditions
in
connection
with
the
adjoining
properties
or
the
property."
ASTM
El527­
00
§
8.4.1.4.

Response:
EPA
appreciates
the
commenter's
input.
The
statute
(
at
§
101(
35)(
B)(
iii)(
VI))
clearly
requires
that
all
appropriate
inquiries
include
inspections
of
adjoining
properties.
EPA's
point,
in
the
preamble
to
the
proposed
rule,
was
that
the
ASTM
E1527­
2000
does
not
explicitly
require
the
inspection
of
adjoining
properties
in
all
circumstances.

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
10
Excerpt
Text:
The
current
wording
requires
a
visual
inspection
of
adjoining
properties,
from
the
subject
property
line,
public
rights­
of­
way,
or
other
vantage
point
(
such
as
aerial
photography).
The
Agency
is
urged
to
consider
the
following
points:
There
is
potential
for
trespass
to
occur
in
an
effort
to
meet
this
requirement,
regardless
of
the
Agency's
intentions
Visibility
can
be
obstructed
at
available
vantage
points,
due
to
woodlands,
topographic
features,
and
size
of
the
adjoining
property
Aerial
photography
is
frequently
of
insufficient
detail
to
allow
proper
observation
of
the
adjoining
property
to
meet
the
intent,
and
is
typically
only
useful
in
confirming
likely
conditions
The
size
of
the
adjoining
property
could
dictate
an
unusually
time
consuming
process
of
trying
to
guess
where
hazardous
substances
may
have
been
utilized/
stored
on
an
aerial
photograph
­
this
approach
has
very
little
benefit
for
the
effort
involved
and
could
likely
raise
needless
questions
rather
than
establishing
a
better
picture
of
the
adjoining
property.

Based
on
these
facts,
it
is
suggested
that
the
Agency
retain
this
as
a
suggested
approach
(
rather
than
required),
and
allow
the
environmental
professional
the
discretion
to
make
appropriate
determinations
for
the
performance
of
the
inquiry.
We
do
concur
that
past
and
present
uses
of
adjoining
properties
should
always
be
considered
in
the
AAI
process.
We
disagree
with
the
Agency
that
specific
standards
are
necessary
for
an
environmental
professional
to
complete
the
inquiry
in
this
regard.
As
stated
previously
in
our
comments,
please
note
that
the
environmental
professional
and
the
purchaser
have
the
burden
of,
and
the
potential
liability
from,
performing
AAIs.

Response:
The
statute
(
at
§
101(
35)(
B)(
iii)(
VI))
clearly
requires
that
all
appropriate
inquiries
include
inspections
of
adjoining
properties.
The
final
rule
does
not
require
the
visual
inspection
of
adjoining
properties
to
be
conducted
on­
site.
Inspections
of
adjoining
properties
may
be
conducted
from
off­
site
vantage
points,
including
the
property
boundaries
and
public
rights­
of­
500
way.
If,
due
to
circumstances
beyond
the
control
of
the
environmental
professional,
an
inspection
of
adjoining
properties
cannot
be
completed,
the
environmental
professional
should
consider
whether
or
not
data
gaps
will
result.
If
the
inability
to
visually
inspect
adjoining
properties
results
in
data
gaps,
they
should
be
noted
in
the
written
report,
as
well
as
the
significance
of
such
data
gaps
upon
the
environmental
professional's
ability
to
render
an
opinion
regarding
conditions
indicative
of
releases
or
threatened
releases
at
the
property.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
4
Other
Sections:
NEW
­
3.1.2
­
Interview
of
the
past
owners,
occupants,
employees,
and/
or
managers
of
the
subject
property
Excerpt
Text:
The
Proposed
Rule
notably
increases
the
content
requirements
under
Phase
I
ESAs.
An
environmental
professional
(
EP)
must
interview
past
owners,
operators
and
occupants
of
the
property,
not
just
the
current
owner,
and
if
the
property
is
abandoned,
the
EP
must
interview
owners
or
occupants
of
adjacent
properties.
What
if
the
adjacent
property
is
abandoned?
How
far
must
the
EP
go
to
track
down
past
owners,
operators
and
occupants?
How
far
back
in
a
line
of
owners,
operators
and
occupants
must
the
EP
go?

Response:
Prospective
property
owners,
grantees,
and
environmental
professionals
must
complete
the
all
appropriate
inquiries
activities
in
compliance
with
the
provisions
of
the
final
rule
while
seeking
to
meet
the
objectives
and
performance
factors
of
§
312.20(
e)
and
(
f).
Past
owners
and
occupants
of
the
subject
property
must
be
interviewed
if
necessary
to
meet
the
objectives
and
performance
factors.

If
all
properties
neighboring
an
abandoned
property
are
abandoned
and
there
is
no
chance
of
the
environmental
professional
locating
a
neighboring
property
owner,
the
inability
to
fulfill
the
requirement
should
be
noted
in
the
final
rule
and
all
data
gaps
that
result
from
the
environmental
professional
not
being
able
to
either
interview
an
owner
or
operator
of
the
property
or
interview
a
neighboring
property
owner
and
the
significance
of
all
data
gaps
should
be
noted
in
the
written
report.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
5
Excerpt
Text:
In
addition,
the
EP
must
visually
inspect
not
only
the
subject
property,
but
adjacent
properties
as
well.
How
is
this
to
be
accomplished
if
physical
or
visual
access
to
the
adjacent
properties
is
restricted?
The
inability
of
an
EP
to
find
such
persons
or
gain
such
access
must
be
identified
in
the
AAI
report
as
a
data
gap.
501
Response:
Prospective
property
owners,
grantees,
and
environmental
professionals
must
complete
the
all
appropriate
inquiries
activities
in
compliance
with
the
provisions
of
the
final
rule
while
seeking
to
meet
the
objectives
and
performance
factors
of
§
312.20(
e)
and
(
f).

If
there
is
no
opportunity
to
view
adjacent
properties
to
conduct
a
visual
inspection,
the
obstacles
should
be
noted
in
the
written
report
and
all
data
gaps
that
result
and
their
significance
also
should
be
noted.

If
all
properties
neighboring
an
abandoned
property
are
abandoned
and
there
is
no
chance
of
the
environmental
professional
locating
a
neighboring
property
owner,
the
inability
to
fulfill
the
requirement
should
be
noted
in
the
final
rule
and
all
data
gaps
that
result
from
the
environmental
professional
not
being
able
to
either
interview
an
owner
or
operator
of
the
property
or
interview
a
neighboring
property
owner
and
the
significance
of
all
data
gaps
should
be
noted
in
the
written
report.

Commenter
Organization
Name:
Thornhill,
James
Comment
Number:
0414
Excerpt
Number:
3
Excerpt
Text:
Visual
inspection
of
adjoining
properties
should
be
limited
as
in
Section
312.27(
a)(
2)
of
the
proposed
rule,
and
should
not
include
even
a
good
faith
effort
requirement
to
conduct
on
site
visual
inspections
of
adjoining
properties.
The
proposed
rule
requests
comments
on
this
component
on
page
52,565
of
the
preamble.
Physically
inspecting
adjoining
properties
would
require
increased
time
and
expense
to
negotiate
terms
of
access
for
multiple
sites.
This
is
simply
impractical
in
completing
due
diligence
in
a
timely
manner.

Use
of
aerial
photography
to
satisfy
the
review
of
adjoining
properties
needs
clarification
in
Section
312.37(
a)(
2).
The
rule
should
be
clarified
to
provide
that
recent
aerial
photography
(
e.
g.
last
2
to
5
years)
could
be
used
to
satisfy
the
component.
As
written,
it
is
unclear
whether
the
prospective
purchaser
is
to
have
the
property
flown
to
obtain
current
aerial
photographs.

Response:
The
final
rule
does
not
require
the
visual
inspection
of
adjoining
properties
to
be
conducted
onsite
The
use
of
aerial
photography
is
allowed
as
long
as
the
use
of
the
photography
allows
the
environmental
professional
to
perform
the
inquiries
in
compliance
with
the
objectives
and
performance
factors
of
§
312.20(
e)
and
(
f).

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
12
Excerpt
Text:
In
§
312.27
"
Visual
inspections
of
the
facility
and
of
adjoining
properties"
(
a)
(
2),
the
502
requirement
for
visual
inspections
of
adjoining
properties
to
include
" 
a
visual
inspection
of
areas
where
hazardous
substances
may
be
or
may
have
been
stored,
treated,
handled,
or
disposed"
is
often
not
possible
to
accomplish
without
obtaining
access
from
the
adjoining
property
owners.
We
recommend
striking
this
concept
entirely.

Rationale:
­
Because
it
is
not
EPA's
intent
to
create
a
regulation
that
requires
the
EP
to
attempt
to
gain
access
to
adjoining
properties
in
order
to
inspect
areas
of
where
hazardous
substances
may
be
or
may
have
been
stored,
treated,
handled,
or
disposed,
such
a
requirement
will
often
result
in
the
documentation
of
a
data
gap.
Further,
how
would
the
EP
be
able
to
determine
which
areas
within
adjacent
properties
contain
or
may
have
contained
hazardous
substances
without
conducting
interviews
or
other
intrusive
analyses
of
the
adjacent
properties
(
e.
g.,
an
area
within
a
storage
shed
on
an
adjacent
property
could
not
be
visually
inspected
from
off
site)?

­
This
requirement
seems
to
be
a
major
deviation
from
current
ASTM
practices
and
could
result
in
a
significant
cost
increase
per
assessment.

Response:
The
statute
(
at
§
101(
35)(
B)(
iii)(
VI))
clearly
requires
that
all
appropriate
inquiries
include
inspections
of
adjoining
properties.
The
final
rule
does
not
require
the
visual
inspection
of
adjoining
properties
to
be
conducted
on­
site.
Inspections
of
adjoining
properties
may
be
conducted
from
off­
site
vantage
points,
including
the
property
boundaries
and
public
rights­
ofway
If,
due
to
circumstances
beyond
the
control
of
the
environmental
professional,
an
inspection
of
adjoining
properties
cannot
be
completed,
the
environmental
professional
should
consider
whether
or
not
data
gaps
will
result.
If
the
inability
to
visually
inspect
adjoining
properties
results
in
data
gaps,
they
should
be
noted
in
the
written
report,
as
well
as
the
significance
of
such
data
gaps
upon
the
environmental
professional's
ability
to
render
an
opinion
regarding
conditions
indicative
of
releases
or
threatened
releases
at
the
property.
503
3.7
Inclusion
of
Specialized
Knowledge
or
Experience
Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
1
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
NEW
­
3.8
­
Considering
the
relationship
of
the
purchase
price
to
the
value
of
the
property
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
Excerpt
Text:
I
would
like
to
comment
on
proposed
40
CFR
312.22.
40
CFR
312.21
defines
the
results
of
an
inquiry
by
an
environmental
professional.
40
CFR
312.22
defines
four
additional
requirements
of
an
all
appropriate
inquiry
and
requires
that
this
information
must
be
provided
to
the
environmental
professional
responsible
for
the
inquiry.
The
mandatory
provision
of
these
criteria
is
inappropriate.
The
four
criteria
of
an
all
appropriate
inquiry
mentioned
in
proposed
40
CFR
312.22
do
not
require
the
judgement
of
an
environmental
professional
to
interpret.

I
recommend
the
following
change
in
40
CFR
312.22.
312.11
Additional
Inquiries
(
a)­
Persons
identified
under
312.1(
b)
may
provide
the
following
information
to
the
environmental
responsible
for
conducting
the
activities
listed
in
312.21.

Response:
EPA
agrees
with
the
commenter.
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
the
results
of
inquiries
for
which
he
or
she
is
responsible
to
the
environmental
professional.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
2
Excerpt
Text:
There
are
immense
practical
difficulties
implementing
the
mandatory
provision
of
"
specialized
knowledge
or
experience
of
the
defendant"
(
proposed
312.22
(
a)(
2))
to
the
environmental
professional.
What
should
I
do?
Give
my
client
a
short
test
on
environmental
science.
Claim
my
client
is
dumber
than
dirt
to
improve
their
chances
of
being
found
an
"
innocent
landowner".
I
would
interview
my
client
to
find
out
what
they
know
about
the
property
and
include
the
results
of
this
interview
in
my
report
but
that
interview
should
not
be
the
basis
of
the
"
innocent
landowner"
defense.
The
environmental
professional
has
no
way
of
ascertaining
the
truthfulness
of
what
they
are
being
told
by
their
client
(
I
am
assuming
that
the
purchaser
is
the
client
of
the
environmental
professional,
which
is
typically,
but
not
always,
the
case).
The
statute
(
CERCLA
101(
35)(
B)(
iii))
requires
that
the
"
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
(
101(
35)(
B)(
iii)(
VII))"
is
an
essential
part
of
the
all
appropriate
inquiry
criteria,
but
504
the
statute
does
not
mandate
that
this
criteria
is
part
of
the
report
of
the
environmental
professional.
In
fact,
"
The
results
of
an
inquiry
by
an
environmental
professional
(
101(
35)(
B)(
iii)(
I))"
is
listed
at
the
same
level
as
the
"
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
(
101(
35)(
B)(
iii)(
VII))".
There
was
clearly
no
statutory
mandate
to
include
this
criterion
in
the
report
of
the
environmental
professional.

Response:
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
information
regarding
his
or
her
specialized
knowledge
to
the
environmental
professional.
However,
any
specialized
knowledge
held
by
the
prospective
landowner,
grantee,
and
environmental
professional
remains
relevant
to
the
all
appropriate
inquiries
investigation.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
12
Excerpt
Text:
312.28
Specialized
knowledge
or
experience
on
the
part
of
the
defendant
We
support
this
section.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
this
provision.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
16
Excerpt
Text:
­
The
proposed
provisions
governing
the
inclusion
of
specialized
knowledge
or
experience
on
the
part
of
the
purchaser
and
the
environmental
professional.

­­
Specialized
knowledge
or
experience
is
one
of
the
things
that
separate
the
marketability
of
one
environmental
professional
over
another.
Their
ability
to
tout
special
knowledge
or
experience
means
that
the
all
appropriate
inquiry
playing
field
is
not
level.
Therefore,
we
support
the
use
of
specialized
knowledge
and/
or
experience
by
the
environmental
professional
provided
that
it
is
documented
in
the
all
appropriate
inquiry
report.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
this
provision.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
8
Excerpt
Text:
505
Prospective
purchaser
governing
including
of
specialized
knowledge.

a)
Page
#
52580
b)
View:
This
should
not
be
part
of
a
Phase
I
report.
The
EP
should
not
be
required
to
obtain
specialized
knowledge
from
the
purchaser
and/
or
prospective
purchaser,
as
their
communications
may
be
limited
or
non­
existent
with
the
purchaser.

c)
Assumptions:
The
purchaser
should
be
willing
to
provide
any
information
pertaining
to
a
site
that
could
be
negatively
affected.
They
should
not
withhold
specialized
knowledge.
However
the
EP
cannot
force
them
to
reveal
such
information,
and
therefore
this
should
not
be
a
performance
standard
of
the
AAI
Phase
I
report.

d)
Burden:
Including
this
section
would
create
an
unreasonable
burden
on
the
EP,
in
an
area
they
have
no
expertise,
and
in
a
situation
they
may
not
have
complete
information.
It
is
not
reasonable
to
require
the
EP
to
comment
on
this
topic
in
their
Phase
I
process.

e)
Alternative:
AAI
is
intended
to
preserve
certain
CERCLA
defenses
of
a
purchaser.
The
purchaser
should
be
educated
that
specialized
knowledge
is
one
consideration
in
the
application
of
these
defenses.
The
Phase
I
'
could'
have
a
narrative
paragraph
in
the
Executive
Summary
discussion
the
Purchaser's
responsibility
to
seek
legal
counsel
to
preserve
their
CERCLA
defenses
in
the
event
Purchaser
Specialized
Knowledge
would
indicate
a
potential
concern.

Response:
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
information
regarding
his
or
her
specialized
knowledge
to
the
environmental
professional.
However,
any
specialized
knowledge
held
by
the
prospective
landowner,
grantee,
and
environmental
professional
remains
relevant
to
the
all
appropriate
inquiries
investigation.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
13
Other
Sections:
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
NEW
­
3.10
­
Considering
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property
Excerpt
Text:
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"

Please
consider
including
the
need
to
define
the
term
"
Persons"
in
§
312.1
(
b)(
1),
should
be
further
defined,
either
in
the
preamble
or
in
§
312.10
Definitions.
Under
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"
should
not
include
every
individual
in
a
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
Tribe,
municipality,
commission,
political
subdivision
of
a
State,
or
any
506
interstate
body,
but
should
be
limited
to
those
persons
directly
involved
with
conducting
the
AAI
for
the
purpose
of
§
312.28,
§
312.30
and
§
312.31.
For
example,
specialized
knowledge
or
experience
cannot
mean
the
specialized
knowledge
or
experience
of
every
employee
in
a
corporation
of
25,000
employees.
Clarifying
language
and
instructive
examples
in
the
preamble
will
ensure
that
the
applicability
of
these
sections
is
practical.

Response:
The
term
"
person"
is
defined
in
CERCLA
at
section
101(
21)
as
"
an
individual,
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
municipality,
commission,
political
subdivision
of
a
State,
or
any
interstate
body."

It
is
difficult
for
EPA
to
predict
how
a
court
would
interpret
the
term
"
person"
or
who
a
court
may
define
as
"
the
defendant"
in
cases
involving
a
corporation.
507
3.7.1
Specialized
Knowledge
of
the
Current
Owner(
s)
of
the
Subject
Property
Commenter
Organization
Name:
Tweedale,
Tony
Comment
Number:
0045
Excerpt
Number:
2
Excerpt
Text:
Proposed
Sec.
312.29,
Requirements
for
Inclusion
of
Specialized
Knowledge.
I
am
a
CERCLA
law
neophyte,
but
it
is
worth
my
asking
you
why
your
preamble
(
and
therefore
the
rule
language)
doesn't
seem
to
require
the
inclusion
of
any
specialized
knowledge
on
the
part
of
the
current
owner(
s)
of
a
property.

Response:
The
prospective
purchaser
or
the
grantee
is
the
party
who
would
be
seeking
liability
protection
and
who
would
be
conducting
the
all
appropriate
inquiries
investigation.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
13
Excerpt
Text:
The
proposed
provisions
governing
the
inclusion
of
specialized
knowledge
or
experience
on
the
part
of
the
purchaser
and
the
environmental
professional
(
page
52566).

NSPE
agrees
with
EPA's
perspective
as
it
relates
to
the
specialized
knowledge
of
the
defendant.
In
this
rule,
it
appears
that
the
prospective
purchaser
has
an
affirmative
duty
to
update
the
inquiries
and
include
any
relevant
specialized
knowledge
held
by
the
current
purchaser
and
the
environmental
professional.
However,
it
seems
somewhat
inconsistent
for
the
innocent
purchaser
defense
to
be
made
available
to
some,
but
not
others,
even
if
both
parties
conducted
the
same
research
under
the
same
conditions
and
with
the
same
degree
of
diligence.
Holding
a
purchaser
to
a
higher
standard
just
because
the
purchaser
may,
or
may
not,
have
some
specialized
knowledge
would
seem
to
be
counterintuitive
as
it
pertains
to
CERCLA
liability.
If
a
party,
who
had
no
role
in
the
creation
of
the
environmental
situation,
possesses
some
specialized
and
valuable
knowledge
that
is
not
in
the
possession
of
another,
it
would
seem
appropriate
for
that
individual
to
be
able
to
use
that
knowledge
for
his
benefit
without
penalty
or
liability.
On
the
contrary,
if
another
person
possesses
little,
if
any,
specialized
knowledge
and
performed
all
appropriate
inquiries,
that
person
would
be
held
to
a
lower
standard
of
care.
While
it
may
seem
unfair
to
have
a
single
objective
standard,
regardless
of
specialized
knowledge,
it
likewise
seems
incongruous
to
have
inconsistencies
in
the
standards
as
they
apply
to
prospective
purchasers'
knowledge.
Some
uniformity
is
needed
and
the
information
required
under
all
appropriate
inquiries
is
adequate
without
application
of
a
subjective
knowledge
based
standard.

Response:
The
final
rule
requires
that
the
prospective
purchaser
or
grantee
and
the
environmental
professional
account
for
their
specialized
knowledge
of
the
subject
property,
the
area
508
surrounding
the
subject
property,
the
conditions
of
adjoining
properties,
and
any
other
experience
relevant
to
the
inquiry,
for
the
purpose
of
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
If
an
individual
has
specialized
knowledge
about
the
circumstances
of
a
property
that
should
lead
him
or
her
to
conclude
that
there
may
be
releases
or
threatened
releases
at
or
to
the
property,
such
information
should
not
be
ignored
by
the
parties
conducting
the
inquiry.
If
the
parties
do
not
have
any
specialized
knowledge
regarding
the
property
or
its
potential
conditions,
they
obviously
could
not
apply
such
knowledge.

In
the
SARA
amendments
to
Superfund
in
1986,
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
rule
changes
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986.
As
provided
in
the
preamble
to
the
proposed
rule,
existing
case
law
related
to
the
innocent
landowner
defense
shows
that
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.
509
3.8
Considering
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property
Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
3
Excerpt
Text:
Concerns
Regarding
Appraisal
Costs
Halting
Brownfield
Development
Representatives
of
the
Negotiated
Rulemaking
Committee
have
stated
that
that
they
feared
hundreds
of
thousands
of
appraisals
would
be
needed
and
would
"
halt"
brownfield
redevelopment.
We
disagree
with
this
position.

The
vast
majority
of
commercial
real
estate
transactions
utilize
financing.
In
virtually
all
lending
transactions,
an
appraisal
is
being
prepared
to
substantiate
the
loan
while
the
All
Appropriate
Inquiry
is
being
conducted.
Rather
than
avoid
the
appraisal
issue,
we
suggest
the
EPA
utilize
this
opportunity
to
encourage
a
link
between
environmental
issues
and
valuation
issues.
This
is
a
reasonable
and
productive
approach
to
protecting
the
public
good.

Underwriters
at
financial
institutions
tell
our
members
that
they
often
review
appraisals
disclaiming
any
environmental
issues;
while
at
the
same
time
they
review
other
reports
describing
contamination
issues
at
the
property.
If
the
lender
were
to
simply
subtract
remediation
costs
from
the
"
unimpaired
value,"
the
true
market
value
impact
of
environmental
conditions
may
not
be
accurately
addressed.
An
environmental
appraisal
considers
not
only
remediation
costs,
but
also
ongoing
costs,
responsibilities
and
stigma
(
market
resistance).

Competent
appraisers
understand
the
valuation
effects
of
environmental
issues
and
can
render
opinions
of
value
for
the
property
as
if
"
unimpaired"
as
well
as
an
opinion
of
value
in
consideration
of
the
environmental
impairment.
USPAP
actually
provides
that
the
"
impaired"
value
is
the
actual
base
value.
The
"
unimpaired"
value
must
invoke
a
hypothetical
condition,
meaning
the
state
of
appraised
condition
is
not
true,
but
is
assumed
to
be
true
for
the
appraisal.
This
kind
of
information
can
assist
prospective
purchasers
in
making
the
market
value/
purchase
price
determination.

Linkage
of
the
appraisal
being
prepared
for
other
purposes
to
All
Appropriate
Inquiry
is
simple,
reasonable
and
cost
efficient.
Generally,
only
a
slight
change
in
the
scope
of
work
would
be
needed
to
effect
this
change.
Our
organizations
have
a
large
body
of
knowledge
on
this
subject
and
can
help
establish
a
coordinated
solution.
Our
organizations
stand
committed
to
assist
you
in
this
endeavor,
and
we
recommend
the
EPA
encourage
this
inter­
communication
in
its
Final
Rule.

Response:
Please
note
that
the
negotiated
rulemaking
committee
was
assembled
from
a
diverse
group
of
stakeholders.
The
Agency
went
to
great
lengths
to
be
inclusive
in
this
process
so
industry
professionals,
environmental
justice
groups,
and
federal
government
partners
could
all
be
adequately
represented
and
have
voices
in
this
rulemaking
process.
Further,
the
recommendation
of
the
rulemaking
committee
was
to
not
require
that
an
appraisal
be
performed
as
part
of
all
510
appropriate
inquiries.
However
an
appraisal
conducted
for
the
subject
property
may
include
valuable
information
regarding
the
market
value
and
conditions
of
the
property
that
contribute
to
the
all
appropriate
inquiries
investigation.
The
evaluation
of
the
relationship
between
the
purchase
price
and
the
fair
market
value
of
the
property,
if
it
were
not
contaminated,
is
left
to
the
discretion
of
the
prospective
property
owner
or
grantee.
The
evaluation
may
or
may
not
need
in
depth
research
or
benefit
from
a
formal
appraisal,
depending
on
the
property.

EPA
agrees
with
commenter
that
there
is
an
opportunity
to
coordinate
appraisal
activities
in
a
better
organized
fashion.
It
is
the
Agency's
hope
that
the
appraisal
industry
will
be
recognized
by
environmental
professionals
and
owners/
grantees
of
property
as
valuable
partners
in
many
instances.
However,
we
reiterate,
using
an
appraisal
is
within
the
discretion
of
the
prospective
property
owner
or
grantee
and
in
some
instances,
the
environmental
professional,
where
this
duty
has
been
delegated
by
the
owner
and
accepted
by
the
EP.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
1
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
NEW
­
3.7
­
Inclusion
of
specialized
knowledge
or
experience
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
Excerpt
Text:
I
would
like
to
comment
on
proposed
40
CFR
312.22.
40
CFR
312.21
defines
the
results
of
an
inquiry
by
an
environmental
professional.
40
CFR
312.22
defines
four
additional
requirements
of
an
all
appropriate
inquiry
and
requires
that
this
information
must
be
provided
to
the
environmental
professional
responsible
for
the
inquiry.
The
mandatory
provision
of
these
criteria
is
inappropriate.
The
four
criteria
of
an
all
appropriate
inquiry
mentioned
in
proposed
40
CFR
312.22
do
not
require
the
judgement
of
an
environmental
professional
to
interpret.

I
recommend
the
following
change
in
40
CFR
312.22.
312.11
Additional
Inquiries
(
a)­
Persons
identified
under
312.1(
b)
may
provide
the
following
information
to
the
environmental
responsible
for
conducting
the
activities
listed
in
312.21.

Response:
The
Agency
agrees
with
the
commenter.
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
the
results
of
inquiries
for
which
he
or
she
is
responsible
to
the
environmental
professional.

Commenter
Organization
Name:
Maloy,
Richard
Comment
Number:
0255
Excerpt
Number:
2
Excerpt
Text:
511
Concerns
Regarding
Appraisal
Costs
Halting
Brownfield
Development
Representatives
of
the
Negotiated
Rulemaking
Committee
have
stated
that
they
feared
hundreds
of
thousands
of
appraisals
would
be
needed
and
would
"
half
Brownfield
redevelopment.
We
believe
that
this
could
not
be
further
than
the
truth.

The
vast
majority
of
commercial
real
estate
transactions
utilize
financing.
In
virtually
all
lending
transactions,
an
appraisal
is
being
prepared
to
substantiate
the
loan,
at
the
same
time
the
all
appropriate
inquiry
is
being
conducted.
Rather
than
avoid
the
appraisal
issue,
we
suggest
the
EPA
utilize
this
opportunity
to
encourage
a
link
between
environmental
issues
and
valuation
issues.
This
is
a
reasonable
and
productive
approach
to
protecting
the
public
good.

Lending
underwriters
tell
me
that
they
often
review
appraisals
disclaiming
any
environmental
issues;
while
at
the
same
time
they
review
other
reports
describing
contamination
issues
at
the
property
when
an
appraisal
is
being
performed
on
a
property
with
contamination
and
the
appraisal
has
disclaimed
any
environmental
issues,
the
fails
to
consider
important
details
of
remediation
costs,
ongoing
costs
and
stigma
(
market
resistance).

In
contrast,
competent
appraisers
understand
the
valuation
effects
of
environmental
issues
and
can
render
opinions
of
value
for
the
property
as
if
"
unimpaired"
as
well
as
an
opinion
of
value
in
consideration
of
the
environmental
impairment.
The
Uniform
Standards
of
Professional
Appraisal
Practice
actually
provides
that
the
"
impaired"
value
is
the
actual
value.
The
"
unimpaired"
value
must
invoke
the
hypothetical
condition
rule,
meaning
the
state
of
appraised
condition
is
not
true,
but
is
assumed
to
be
true
for
the
appraisal.
Linkage
of
the
appraisal
being
prepared
to
all
appropriate
inquiry
is
simple,
reasonable
and
cost
efficient.
Generally,
only
a
slight
change
in
the
scope
of
work
would
be
needed
to
affect
this
change.

The
Appraisal
Institute
is
the
most
respected
depository
of
knowledge
on
this
subject
and
can
help
establish
a
coordinated
solution.

Response:
Please
see
response
to
comment
0212,
excerpt
3.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
23
Excerpt
Text:
PROPERTY
VALUE
DETERMINATION
1)
The
requirement
to
analyze
the
significance
of
the
relationship
of
the
purchase
price
to
the
value
of
the
property
if
the
property
weren't
contaminated
is
a
questionable
parameter
in
the
overall
data
analysis.
If
the
subject
property
has
a
lower
price
than
similar
properties
nearby,
should
the
EP
automatically
assume
that
the
property
is
contaminated?
Similarly,
should
the
EP
or
purchaser
take
a
slightly
higher
price
as
an
indication
that
the
property
must
be
clean
and
512
therefore
the
investigations
may
be
less
rigorous?
FAA
believes
that
the
regulations
should
not
allow
the
purchase
price
of
the
property
to
enter
into
the
EPs
considerations
until
the
EP
is
satisfied
that
AAI
do
not
reveal
a
threatened
or
actual
release
at
the
subject
property.

Response:
A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
indicate
that
further
investigation
is
necessary.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
9
Other
Sections:
NEW
­
6.1
­
EPA
should
adopt
ASTM
standard
rather
than
develop
separate
regulations
Excerpt
Text:
­­
b.
Congress
intended
to
continue
the
ASTM
E1527,
§
5.4
"
actual
knowledge"
requirement,
not
impose
a
new
market
valuation
requirement.

EPA
states
that
the
new
market
valuation
requirement
of
§
312.29
is
required
by
the
Brownfields
Revitalization
Act
of
2001,
and
the
existing
ASTM
E1527
treatment
of
the
relationship
of
purchase
price
to
value
cannot
continue
because
"
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."
69
Fed.
Reg.
at
52575.

We
do
not
agree
with
EPA's
construction
of
the
statute.
The
"
statute's
criteria"
that
EPA
refers
to
is
"[
t]
he
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated."
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
VIII).
This
statutory
criteria
has
been
a
part
of
all
appropriate
inquiry
since
1986.
See
Pub.
L.
No.
99­
499,
100
Stat
1613
(
SARA
Amendments)
(
1986).
ASTM
E1527­
00,
§
5.4,
the
"
actual
knowledge"
requirement
regarding
the
relationship
of
the
purchase
price
to
the
value
of
the
property
if
the
property
was
not
contaminated,
was
developed
in
direct
response
to
the
statutory
criteria
cited
by
EPA.
See
ASTM
E1527­
93,
§
X1.2.4;
See
also
ASTM
E1527­
93,
§
5.4.

The
Brownfield
Revitalization
Act's
command
is
to
promulgate
a
regulation
"
to
carry
out
all
appropriate
inquiries"
in
accordance
with
"
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601(
B).
All
parties
concerned
with
this
rule,
including
EPA,
have
agreed
that
ASTM
E1527­
00
represents
current
good
commercial
and
customary
standards
and
practices.
Therefore,
by
definition
and
as
a
matter
of
law,
ASTM's
limitation
of
the
purchase
price
requirement
to
"
actual
knowledge"
does
satisfy
the
statutory
criteria.
Whereas
the
committee's
new
valuation
requirement
is
not
consistent
with
good
commercial
practice,
increases
uncertainty,
and
does
not
satisfy
the
statutory
criteria.
513
Upon
reconsideration,
we
hope
you
will
agree
with
us
and
will
retain
the
"
actual
knowledge"
standard
of
ASTM
E1527.

Response:
"
Good
commercial
and
customary
standards
and
practices"
are
not
exclusive
to
the
ASTM
E1527
standard.
That
is
to
say
that
there
is
not
just
one
method
that
satisfies
this
standard.
However,
that
is
not
the
only
charge
of
Congress.
In
addition
to
implementing
such
standards
and
practices,
EPA
must
comply
with
Congressional
intent
which
is
more
consistent
with
eliminating
the
limiting
nature
of
the
ASTM
standard's
"
actual
knowledge"
criteria.
Again,
the
Agency
went
to
every
effort
to
include
industry
leaders
in
its
development
of
the
proposed
rule,
in
part
to
allow
EPA
to
rely
on
professional's
judgment
regarding
"
good
commercial
and
customary
standards
and
practices."
EPA
reiterates
that
the
requirement
in
the
final
rule
to
consider
the
relationship
of
the
purchase
price
of
the
property
to
the
fair
market
value
of
the
property,
if
the
property
was
not
contaminated,
is
consistent
with
the
statute
in
that
it
is
not
limited
to
"
actual
knowledge,"
and
some
amount
of
research
or
evaluation
may
be
necessary
to
meet
the
requirement.
However,
the
activities
and
level
of
effort
necessary
to
evaluate
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property,
if
it
were
not
contaminated,
are
not
beyond
good
commercial
and
customary
practice.
Many
prospective
property
owners
conduct
property
appraisals
or
evaluate
the
market
value
of
a
property
by
way
of
another
commercial
or
customary
practice.
The
ASTM
E1527
standard
is
not
the
only
commercial
practice
that
would
meet
the
Congressional
standard.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
7
Excerpt
Text:
EPA
faults
the
ASTM
standard
for
limiting
the
inquiry
of
the
"
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated"
to
actual
knowledge
on
the
part
of
the
property
owner.
69
Fed.
Reg.
at
52575
(
quoting
CERCLA
§
101(
35)(
B)(
iii)(
IV)
(
internal
quotes
omitted).
Proposed
section
312.29(
a)
simply
requires
the
property
owner
to
"
consider
whether
the
purchase
price
of
the
subject
property
reasonably
reflects
the
fair
market
value
of
the
property,
if
the
property
is
not
contaminated."
The
regulatory
obligation
to
"
consider"
the
relationship
of
the
purchase
price
to
the
value
of
the
property
cannot
be
achieved
in
the
absence
of
"
actual
knowledge"
of
this
relationship.
EPA's
criticism
of
the
ASTM
standard
appears
to
be
an
unreasonable
stretch.
Nevertheless,
we
understand
that
the
ASTM
task
group
has
proposed
to
modify
the
language
in
a
way
that
removes
the
"
actual
knowledge"
phrase.
If
this
language
change
wins
approval
in
the
ASTM
consensus
process,
that
should
remove
EPA's
objection
to
this
provision.

Response:
Although
EPA
found
ASTM
E1527­
2000
noncompliant
with
Congress'
mandate
to
establish
All
Appropriate
Inquiries,
since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
514
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
fiveyear
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
Monger,
Chris
Comment
Number:
0448
Excerpt
Number:
1
Excerpt
Text:
Reducing
the
rqmts
to
eliminate
appraisals
is
probably
a
good
practice
in
many
instances.

However,
complicated
and
high
value
impact
situations
should
still
involve
an
appraisal
to
establish
a
good
framwork
and
to
greatly
reduce
potential
for
fraud
and
other
questionable
practices.

Response:
EPA
agrees
that
there
are
instances,
especially
in
transactions
that
are
complicated
and
consist
of
high
value
property,
where
an
appraisal
is
very
appropriate.
This
tool
is
always
available
and
the
Agency
anticipates
that
it
will
be
used
often.
Information
gained
during
an
appraisal
regarding
the
fair
market
value
of
the
property
and
the
environmental
conditions
of
the
property
may
provide
valuable
information
for
use
in
the
all
appropriate
inquiries
investigation.
515
3.8.1
The
EP
Should
Not
Be
Required
to
Consider
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property
Commenter
Organization
Name:
Marshtein,
Nina
G
Comment
Number:
0031
Excerpt
Number:
1
Excerpt
Text:
I
disagree
with
requiring
environmental
professionals
to
determine
the
"
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,"
We
are
not
appraisers
and
we
don't
have
the
qualifications
to
determine
the
value
of
land
based
on
your
definition
of
what
a
qualified
site
assessor
is.
I
feel
that
this
should
be
struck
from
the
proposed
regulation.

Response:
Please
note
that
the
evaluation
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property,
if
the
property
were
not
contaminated
need
not
be
performed
by
the
environmental
professional.
Sections
312.22(
a)(
3)
and
312.29
of
the
final
rule
designates
that
this
activity
is
the
responsibility
of
the
prospective
property
owner
or
grantee.

Commenter
Organization
Name:
None
Comment
Number:
0050
Excerpt
Number:
1
Excerpt
Text:
In
regard
to
312.29
(
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated),
I
do
not
feel
that
the
majority
of
persons
that
meet
the
proposed
definiton
of
an
Environmental
Professional
are
qualified
to
determine
the
value
of
a
property.
I
do
not
think
312.29
should
be
included
in
the
rule.

Response:
Please
see
response
to
comment
number
0031,
excerpt
1.

Commenter
Organization
Name:
Souther,
Timothy
G
Comment
Number:
0058
Excerpt
Number:
1
Excerpt
Text:
The
Thursday
August
26,
2004
proposed
regulations
include
one
provision
that
is
a
dramatic
departure
from
typical
environmental
site
assessment
(
ESA)
practice:
proposed
"
Section
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
Section
312.1(
b)
must
consider
whether
the
516
purchase
price
of
the
subject
property
reasonably
reflects
the
fair
market
value
of
the
property,
if
the
property
were
not
contaminated 

This
provision
presumes
that
the
fair
market
value,
the
purchase
price,
and
the
actual
presence
of
property
contamination
have
been
determined
prior
to
completion
of
the
all
appropriate
inquiry
(
AAI)
document
the
proposed
replacement
for
the
existing
ESA
document.
For
most
ESAs
I
have
been
involved
with,
these
determinations
are
not
necessarily
completed
at
the
time
of
the
ESA.
Many
ESAs
are
conducted
in
advance
of
listing
the
property
for
sale,
in
advance
of
completing
an
assessment
of
property
value,
and
in
advance
of
determining
if
there
is
actual
contamination
on
the
property.
Theoretically,
the
AAI
could
await
completion
of
these
steps
in
a
property
transaction.
Awaiting
completion
of
these
determination
is
impractical
because
it
puts
the
AAI
report
at
the
very
end
of
the
due
diligence
process
of
property
transactions
and
prevents
it
from
being
an
effective
planning
tool
for
the
seller,
buyer,
and
lender.
From
my
experience,
the
earlier
in
the
transaction
process
the
due
diligence
environmental
assessment
documentation
is
completed,
the
more
time
is
available
for
environmental
sampling
to
verify
the
presence
of
suspected
releases
and
potentially
for
negotiating
actions
to
remedy
any
verified
releases.

The
late
timing
of
the
AAI
report
would
not
be
a
problem
for
properties
that
the
qualified
environmental
professional
was
able
to
determine
there
is
no
contamination
of
the
property.
However,
it
is
unlikely
that
a
qualified
environmental
professional
can
determine
that
there
is
no
contamination
on
the
property
based
solely
on
an
AAI
scope
of
work.
The
AAI
process
will
only
identify
visual
or
recorded
evidence
of
releases
and
cannot
determine
the
actual
existence
of
or
lack
of
releases
on
the
property.
Appropriate
site
characterization
based
on
environmental
sampling/
analysis
completed
subsequent
to
the
environmental
site
assessment
is
typically
the
basis
for
a
finding
of
no
contamination
on
property.
As
such,
I
would
expect
this
AAI
requirement
to
be
a
significant
timing
problem
for
all
transaction
that
do
not
have
a
comprehensive
site
characterization
completed
prior
to
initiation
the
AAI
process.

Based
on
this
provision,
the
AAI
report
cannot
be
prepared
in
advance
of
the
purchase
price
negotiation
because
the
AAI
report
has
to
evaluate
the
purchase
price
against
the
fair
market
value.
This
again
is
a
timing
problem
because
the
results
of
the
AAI
cannot
be
used
in
negotiating
the
purchase
price,
if
that
is
appropriate
for
the
buyer,
seller,
and
lender.
Not
all
property
transactions
involve
CERCAL
liability
and
imposing
this
CERCAL
requirement
at
all
non­
residential
property
transactions
will
again
delay
the
AAI
report
until
late
in
the
transaction,
where
its
non­
CERCAL
benefits
of
the
report
would
be
difficult
to
consider
or
resolve
late
in
the
transaction.

In
addition
to
the
timing
problem,
the
proposed
regulation
assumes
that
the
property
is
being
transferred
as
a
single
property
with
a
single
price.
Many
property
transactions
involve
purchase
of
the
property,
the
property
improvements,
personal
property
on
the
premises
(
such
as
inventory),
and
may
include
intangibles
such
as
the
reputation
(
goodwill)
of
the
business.
These
transactions
will
not
necessarily
have
a
purchase
price
solely
for
the
contaminated
property,
as
envisioned
in
the
regulation.
Some
transactions
involve
a
single
purchase
price
for
several
properties
some
of
which
may
include
contamination.
Again,
this
transaction
would
not
involve
a
single
purchase
price
solely
for
the
contaminated
property(
s).
Some
transactions
involve
517
trading
property
for
other
non­
cash
assets
such
as
another
property
or
other
personal
property.
Such
transactions
may
not
have
an
established
purchase
value
for
either
property.
In
each
of
these
cases,
it
will
be
very
difficult
and
much
more
costly
than
estimated
by
EPA
to
determine
a
purchase
price
for
these
property
properties.
If
AAI
timing
and
AAI
costs
are
consideration
in
the
transaction,
establishing
a
purchase
price
for
these
transactions
would
likely
be
found
a
"
data
gap"
by
the
environmental
professional
pursuant
to
Section
312.21
of
the
proposed
regulation.

Based
on
this
provision,
the
AAI
report
cannot
be
prepared
until
the
fair
market
value
is
determined.
California
governmental
assessed
valuation
for
taxation
purposes
is
not
necessarily
representative
of
fair
market
value
(
Assessor's
Handbook,
California
Board
of
Equalization).
Assessed
valuation
does
not
provide
fair
market
valuation
for
tax­
exempt
or
tax­
immune
properties
and
does
not
use
the
fair
market
value
standard
for
valuation
of
some
properties.
Many
"
federally
related
property
transactions"
will
have
a
determination
of
the
fair
market
value
for
the
property
by
a
State­
licensed
Appraiser
as
part
of
the
due
diligence
process.
However,
the
appraisal
is
typically
completed
concurrent
with
environmental
site
assessment
and
which
would
require
that
the
AAI
report
be
delayed
until
late
in
the
transaction
after
the
appraisal
is
completed.
Some
transactions
do
not
require
determination
of
the
fair
market
value
by
an
Appraiser
and
no
valuation
of
the
fair
market
value
will
be
available
to
the
qualified
environmental
professional
in
that
case.
For
example,
the
State
of
California
has
a
long­
standing
Appraiser
licensing
process
(
California
Business
and
Professions
Code,
Division
4,
Part
3,
Sections
11300
et
seq.)
administered
by
the
California
Office
of
Real
Estate
Appraisers.
In
some
cases,
the
licensing
program
may
prevent
the
qualified
environmental
professional
from
providing
a
determination
of
fair
market
value,
which
would
automatically
result
in
this
provision
being
found
a
data
gap
by
the
environmental
professional.
Because
of
this
limitation,
fair
market
value
determinations
should
be
prepared
for
"
federally
related
property
transaction"
by
State
licensed
Appraisers
as
a
routine.
I
would
argue
that
such
evaluation
should
be
prepared
for
any
contaminated
property
by
a
State
licensed
Appraiser
in
accordance
with
established
professional
appraiser
standards.

EPA
indicates
that
determination
of
the
fair
market
value
of
the
property
can
be
made
by
comparing
the
"
price
paid
for
other
similar
properties
located
in
the
area"
or
by
contracting
with
"
a
real
estate
expert
familiar
with
properties
in
the
general
area 
to
provide
a
comparability
analysis."
This
would
not
be
determination
of
fair
market
value,
but
merely
a
rough
estimate
of
potential
property
value.
This
also
assumes
that
there
are
other
similar
properties
in
the
area
that
have
sold
recently,
that
the
purchase
price
for
those
properties
is
based
solely
on
a
cash
transaction,
and
that
the
information
is
readily
available.
This
information
may
be
available
for
some
transactions,
but
not
all.
For
some
transactions,
some
or
all
of
this
information
may
not
be
available
to
the
environmental
professional
to
evaluate
the
applicability
of
similar
property
transaction.
There
are
some
properties
that
are
sufficiently
unique
(
right­
of­
ways,
for
example)
that
there
will
be
no
similar
property
transactions
to
compare
with.

If
the
EPA
is
serious
about
including
a
professional
opinion
of
the
whether
the
purchase
price
of
the
subject
property
reasonably
reflects
the
fair
market
value
of
the
property,
the
EPA
needs
to
identify
in
the
AAI
regulation,
the
tasks
necessary
to:
determine
if
the
property
is
currently
contaminated
using
environmental
testing
or
other
definitive
means,
determine
the
purchase
518
price
under
many
transaction
scenarios,
such
as
described
above,
and
determine
the
fair­
market
value
of
the
property
in
accordance
with
State
Appraiser
licensing
requirements.

EPA
also
needs
to
accurately
estimate
the
potential
costs
of
these
tasks
and
discuss
the
costbenefits
of
the
delay
this
requirement
would
result
in
typical
transactions
(
those
with
no
evidence
of
contamination)
and
in
some
less
typical
transactions,
as
described
above.
The
estimate
of
incremental
costs
relative
to
the
typical
ESA,
as
described
in
the
preamble
to
the
proposed
regulation,
appears
inadequate
for
that
purpose.
I
do
not
believe
that
EPA
can
justify
this
AAI
requirement
on
a
cost­
benefit
basis.
Because
of
the
delay
aspects
of
this
requirement,
I
believe
this
requirement
is
inappropriate
for
many,
if
not
most,
property
transactions.

Alternatively,
I
would
suggest
that
this
provision
be
more
properly
addressed
as
a
subsequent
phase
of
environmental
site
assessment.
If
the
property
is
determined
to
be
contaminated
by
the
environmental
professional
based
on
previous
assessment,
comparison
of
purchase
price
with
fair
market
value
could
be
identified
as
"
additional
appropriate
investigation"
in
the
AAI
under
proposed
Section
312.31.
As
described
above,
I
believe
a
legally
supportable
comparison
of
purchase
price
and
fair
market
value
should
be
prepared
by
a
State
licensed
Appraiser.

Response:
At
the
onset
of
this
response
we
note
from
the
preamble
of
the
proposed
rule
that
"
§
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."
(
69
FR
52567).

A
proper
reading
of
this
language
should
make
it
easy
to
address
the
commentor's
timing
concerns.
The
comparison
in
prices
here
is
made
between
the
purchase
price
and
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
This
means
that
the
comparison
can
take
place
at
any
time,
and
doesn't
require
any
amount
of
contamination
to
be
detected.
The
purpose
of
this
comparison
is
to
look
at
the
difference
between
the
price
paid
and
the
market
value
of
the
property
as
an
indicator
of
possible
contamination.
If
the
prices
are
significantly
different,
this
should
indicate
to
the
purchaser
that
additional
inquiry
should
be
done
if
liability
protection
is
desired.

"
Market
Value"
is
defined
by
Barron's
Legal
Guides
Law
Dictionary
as
"
the
price
that
goods
or
property
would
bring
in
a
market
of
willing
buyers
and
willing
sellers
in
the
ordinary
course
of
trade 
Market
value
is
generally
established
on
the
basis
of
sales
of
similar
goods
or
property
in
the
same
locality,
but
where
there
have
been
no
such
prior
sales,
there
is
no
single
measure
of
value,
and
other
evidence
of
value
must
be
considered."
(
Gifis,
Steven
H.,
Law
Dictionary,
Third
Edition,
1991.)
Fair
market
value
is
generally
synonymous
with
market
value.

The
preamble
of
the
proposed
rule
suggests,
"
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."
(
69
FR
at
52567).
519
The
commenter
correctly
states
that
the
local
assessor's
office's
determination
as
to
the
value
of
the
property
for
tax
purposes
often
will
not
suffice.
The
Agency
cautions
the
use
of
this
tool
in
many
instances.
In
certain
circumstances
this
information
is
nonexistent,
or
outdated
and
hence
inaccurate.
However,
when
this
information
is
available,
it
may
be
used
as
an
accurate
gauge
in
some
instances
and
as
a
useful
indicator
in
others.
But,
as
the
above
quoted
law
dictionary
states,
often
times
"
there
is
no
single
measure
of
value,
and
other
evidence
must
be
considered."
We
leave
this
issue
to
the
discretion
of
those
performing
the
inquiry.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
3
Excerpt
Text:
Any
data
which
involves
the
comparison
of
the
"
actual
taxable
property
value"
versus
the
"
actual
sale
price"
is
not
a
reasonable
criteria
in
the
private
sector.
Perhaps
in
the
government
sector
those
prices
are
well
known,
but
private
markets
that
I
have
experienced
would
often
times
not
divulge
that
cost
data.
Clients
giving
public
knowledge
of
private
markets
is
not
often
well
received,
and
may
be
data
which
is
hard,
if
not
impossible,
to
obtain.

Response:
The
all
appropriate
inquiry
rule
does
not
require
a
comparison
between
"
actual
taxable
property
value"
and
"
actual
sale
price."
The
comparison
is
between
the
purchase
price
and
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
Also,
please
note
that
the
evaluation
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property,
if
the
property
were
not
contaminated
need
not
be
performed
by
the
environmental
professional.
Sections
312.22(
a)(
3)
and
312.29
of
the
final
rule
designates
that
this
activity
is
the
responsibility
of
the
prospective
property
owner
or
grantee.
Therefore,
the
prospective
property
owner
does
not
need
to
make
information
regarding
the
price
paid
for
the
property
or
its
value
available
to
the
environmental
professional
or
the
public
if
he
or
she
chooses
not
to.

Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Excerpt
Number:
6
Excerpt
Text:
This
section
should
clearly
indicate
that
it
is
NOT
the
responsibility
of
the
Environmental
Professional
to
evaluate
the
relationship
between
the
purchase
price
and
the
fair
market
price
of
the
subject
property.
Such
evaluations
are
not
within
the
scope
of
expertise
of
an
Environmental
Professional,
and,
and
in
many
states,
requires
possession
of
a
real
estate
appraisers
license.
Analysis
of
property
valuation
should
be
conducted
by
a
real
estate
appraiser.
It
should
be
solely
the
responsibility
of
the
person
defined
in
§
312.1
to
provide
any
information
regarding
property
valuation,
as
prepared
by
a
qualified
real
estate
appraiser,
to
the
Environmental
Professional.
520
Response:
Please
note
that
the
evaluation
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property,
if
the
property
were
not
contaminated
need
not
be
performed
by
the
environmental
professional.
Sections
312.22(
a)(
3)
and
312.29
of
the
final
rule
designates
that
this
activity
is
the
responsibility
of
the
prospective
property
owner
or
grantee.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
3
Excerpt
Text:
Similarly,
the
provision
of
"
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property
to
the
market
value
of
the
property,
if
the
property
was
not
contaminated"
(
proposed
312.22
(
a)(
3))
to
the
environmental
professional
is
problematical.
Most
environmental
professionals
are
not
real
estate
appraisers.
I
do
not
see
how
this
information
can
be
evaluated
by
the
environmental
professional.
Certainly
if
the
property
is
being
purchased
far
below
market
value,
I
should
be
suspicious
as
to
the
reason,
which
certainly
could
be
environmental
contamination.
There
are
many
reasons,
however,
that
a
property
does
not
sell
at
market
value.
The
job
of
the
environmental
professional
is
to
ascertain
whether
a
release
(
as
defined
under
CERCLA)
has
occurred.
I
really
have
no
use
for
the
market
value
comparison,
because
I
am
already
suspicious.
I
was
hired
to
be
suspicious
and
to
perform
a
site
assessment.
Sharing
the
appraisal
and
purchase
price
with
me,
the
environmental
professional,
will
not
help
me
do
my
job.
My
client
will
not
want
to
share
this
information
with
me
either.
I
foresee
many
clients
not
wanting
to
share
appraisal
and
purchase
price
information
with
the
environmental
professional
and
being
asked
to
identify
this
information
as
a
"
data
gap"
on
advice
of
the
client's
counsel.
I
believe
the
statute
makes
this
a
criteria
of
an
"
all
appropriate
inquiry"
to
be
used
in
court
to
establish
an
"
innocent
landowner"
defense.
In
the
situation
where
the
purchaser
paid
a
small
fraction
of
the
market
value
and
the
environmental
professional
failed
to
find
evidence
of
a
release,
there
would
be
a
conundrum
to
be
unraveled
in
court.
The
environmental
professional
is
in
no
position
to
evaluate
this
information
when
there
is
no
indication
of
a
release.
The
environmental
professional
is
able
to
estimate
remediation
costs
when
there
is
evidence
of
a
release,
but
in
absence
of
that
data,
the
purchase
price
of
the
property
and
its
market
value
in
the
absence
of
contamination
is
extraneous
information.
The
statute
(
CERCLA
101(
35)(
B)(
iii))
requires
that
the
"
The
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property
to
the
market
value
of
the
property,
if
the
property
was
not
contaminated
(
101(
35)(
B)(
iii)(
VIII))"
is
an
essential
part
of
the
all
appropriate
inquiry
criteria,
but
the
statute
does
not
mandate
that
this
criteria
is
part
of
the
report
of
the
environmental
professional.
In
fact,
"
The
results
of
an
inquiry
by
an
environmental
professional
(
101(
35)(
B)(
iii)(
I))"
is
listed
at
the
same
level
as
the
"
The
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property
to
the
market
value
of
the
property,
if
the
property
was
not
contaminated
(
101(
35)(
B)(
iii)(
VIII))".
There
was
clearly
no
statutory
mandate
to
include
this
criterion
in
the
report
of
the
environmental
professional.

Response:
As
stated
in
the
preamble,
the
assessment
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
is
the
responsibility
of
the
prospective
landowner
or
grantee.
The
information
may
521
be
provided
to
the
environmental
professional
overseeing
the
all
appropriate
inquiries
investigation
if
it
has
any
bearing
on
the
investigation
(
that
is
to
say
that
it
sheds
some
light
on
the
environmental
conditions
of
the
property).
If
the
owner
or
grantee
does
not
communicate
this
information
to
the
environmental
professional
or
does
not
otherwise
reach
an
agreement
with
the
EP
to
conduct
such
an
analysis
on
his
or
her
behalf,
this
should
be
reported
as
a
data
gap.

A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
require
further
investigation
above
and
beyond
what
would
normally
occur.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
4
Excerpt
Text:
The
difference
between
purchase
price
verses
regular
market
value
could
be
affected
by
other
factors.
It
seems
unreasonable
to
require
purchase
information
to
be
disclosed
to
the
environmental
professional
performing
the
all
appropriate
inquiry.

We
suggest
the
following
text
addition:
­
Purchaser
is
required
to
inform
environmental
professional
if
the
purchase
price
is
lower
than
fair
market
value
because
of
contamination
concerns.
Or
REMOVE
THIS
SECTION
FROM
THE
STANDARD
ENTIRELY.

Response:
As
stated
in
the
preamble,
the
assessment
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
is
the
responsibility
of
the
prospective
landowner
or
grantee.
The
information
may
be
provided
to
the
environmental
professional
overseeing
the
all
appropriate
inquiries
investigation
if
it
has
any
bearing
on
the
investigation
(
that
is
to
say
that
it
sheds
some
light
on
the
environmental
conditions
of
the
property).
If
the
owner
or
grantee
does
not
communicate
this
information
to
the
environmental
professional
or
does
not
otherwise
reach
an
agreement
with
the
EP
to
conduct
such
an
analysis
on
his
or
her
behalf,
this
should
be
reported
as
a
data
gap.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
13
Excerpt
Text:
312.29
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated.
This
section
should
clearly
state
that
it
is
the
responsibility
of
the
purchaser
to
evaluate
the
relationship
between
fair
market
value
of
the
property,
if
the
property
were
not
contaminated,
to
the
purchase
price.
522
Or
THIS
SECTION
SHOULD
BE
OMMITTED
FROM
ALL
APPROPRIATE
INQUIRY.

Environmental
professionals
are
not
qualified
to
evaluate
fair
market
value
of
the
property.
It
is
unreasonable
to
impose
the
role
of
real
estate
market
professional
on
to
the
environmental
professional.

Response:
As
stated
in
the
preamble,
the
assessment
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
is
the
responsibility
of
the
prospective
landowner
or
grantee.
The
information
may
be
provided
to
the
environmental
professional
overseeing
the
all
appropriate
inquiries
investigation
if
it
has
any
bearing
on
the
investigation
(
that
is
to
say
that
it
sheds
some
light
on
the
environmental
conditions
of
the
property).
If
the
owner
or
grantee
does
not
communicate
this
information
to
the
environmental
professional
or
does
not
otherwise
reach
an
agreement
with
the
EP
to
conduct
such
an
analysis
on
his
or
her
behalf,
this
should
be
reported
as
a
data
gap.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0294
Excerpt
Number:
2
Excerpt
Text:
312.29
The
requirement
to
assess
the
fair
market
value
of
the
property
may
be
in
conflict
with
USPAP
appraisal
regulations
for
financial
institutions.

Response:
The
all
appropriate
inquires
final
rule
does
not
require
that
an
appraisal
be
conducted
and
has
no
effect
on
requirements
imposed
by
lenders
on
borrowers.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
10
Excerpt
Text:
The
proposed
rule
§
312.29
(
a)
states
that
the
AAI
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.
This
section
(
b)
goes
on
to
state
that
if
this
is
not
the
case,
there
is
a
need
to
consider
whether
the
differential
is
due
to
the
presence
of
releases
or
threatened
releases.

Comment:
There
are
several
potential
reasons
why
a
purchase
price
may
not
reflect
fair
market
value.
These
include
a
highly
motivated
seller
(
needs
to
relocate,
needs
cash
flow,
seeking
to
avoid
bankruptcy,
trying
to
sell
before
the
market
dips,
stock
holder­
driven
sale,
etc.),
structural
issues
with
the
existing
building,
other
development
constraints
at
the
site
(
i.
e.
presence
of
wetlands),
an
uninformed
seller
(
doesn't
realize
that
the
property
may
be
worth
more
to
the
buyer)
or
any
number
of
reasons.
Asking
a
buyer
to
include
in
a
report
that
the
seller
may
see
a
statement
as
to
whether
they
are
getting
"
too
good
of
a
deal"
on
the
site,
is
counterproductive
to
523
the
pricing
negotiations
which
would
be
underway.
In
addition,
because
of
the
many
reasons
possible
for
the
selling
price
to
be
below
fair
market
value,
it
would
be
nearly
impossible
for
the
buyer
to
evaluate
whether
the
reason
behind
this
lower
price
is
because
of
potential
releases.
If
the
price
decrease
is
due
to
known
releases,
there
is
still
no
value
in
this
evaluation,
as
the
releases
are
already
known
to
exist
(
and
disclosure
is
required
under
most
jurisdictions),
without
the
benefit
of
the
price
comparison.
It
also
should
be
noted
that
an
EP
would
have
no
basis
or
qualifications
to
judge
the
veracity
of
the
buyer's
evaluation
of
this
pricing
issue.

Response:
The
Agency
understands
this
is
not
a
bright­
line
test
and
that
it
is
merely
an
indicator
of
potential
environmental
issues
affecting
the
subject
property.
There
is
no
requirement
for
the
purchaser
or
the
environmental
professional
to
share
the
all
appropriate
inquiry
report
with
the
seller.

It
is
not
the
EPA's
prerogative
to
judge
the
veracity
of
the
buyer's
evaluation
of
this
pricing
issue.
Any
evaluation
of
the
veracity
would
be
conducted
by
a
court
in
an
attempt
to
determine
if
the
buyer
qualifies
for
liability
protection.
This
provides
an
incentive
for
an
accurate,
thorough
analysis.

As
stated
in
the
preamble,
the
assessment
of
the
relationship
of
the
purchase
price
to
the
fair
market
value
is
the
responsibility
of
the
prospective
landowner
or
grantee.
The
information
may
be
provided
to
the
environmental
professional
overseeing
the
all
appropriate
inquiries
investigation
if
it
has
any
bearing
on
the
investigation
(
that
is
to
say
that
it
sheds
some
light
on
the
environmental
conditions
of
the
property).
If
the
owner
or
grantee
does
not
communicate
this
information
to
the
environmental
professional
or
does
not
otherwise
reach
an
agreement
with
the
EP
to
conduct
such
an
analysis
on
his
or
her
behalf,
this
should
be
reported
as
a
data
gap.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
5
Other
Sections:
NEW
­
3.8.4
­
The
rule
should
require
a
commercial
appraisal
by
a
real
estate
expert/
appraiser
Excerpt
Text:
Section
312.29
needs
to
be
completely
eliminated.
Trained
and
licensed
appraisers
should
be
the
only
ones
to
provide
property
market
value
analysis
Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.
524
Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
12
Excerpt
Text:
The
Mille
Lacs
Band
does
not
agree
with
the
proposed
requirement
in
this
section
in
its
entirety
as
to
providing
the
purchase
price
and
fair
market
value
and
their
relationship
of
those
properties
not
contaminated.

If
a
property
is
not
contaminated,
the
Band
does
not
see
a
valid
reason
for
why
both
dollar
values
must
be
indicated
in
an
all
appropriate
inquiry.
In
the
Band's
opinion,
there
are
numerous
variables
that
may
affect
a
purchase
price,
whether
that
purchase
price
is
above
or
below
a
market
value
price.
For
instance,
factors
that
may
affect
a
purchase
price
include,
but
are
not
limited
to,
appraisal,
negotiations
with
a
seller,
condition
of
structures
on
a
property,
and
so
forth.

The
Band
will
look
at
the
relationship
between
the
purchase
price
and
the
fair
market
value
through
the
use
of
a
cost
analysis,
and
will
provide
all
necessary
documentation
as
to
a
the
reasons
for
a
property's
purchase
price
(
whether
above
or
below
a
fair
market
value).

Response:
A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
require
further
investigation
above
and
beyond
what
would
normally
occur.
This
is
not
designed
to
be
a
bright­
line
test.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
17
Excerpt
Text:
The
Mille
Lacs
Band
does
not
agree
with
the
proposed
requirement
in
this
section
in
its
entirety
as
to
providing
the
purchase
price
and
fair
market
value
and
their
relationship
of
those
properties
not
contaminated.

If
a
property
is
not
contaminated,
the
Band
does
not
see
a
valid
reason
for
why
both
dollar
values
must
be
indicated
in
an
all
appropriate
inquiry.
In
the
Band's
opinion,
there
are
numerous
variables
that
may
affect
a
purchase
price,
whether
that
purchase
price
is
above
or
below
a
market
value
price.
For
instance,
factors
that
may
affect
a
purchase
price
include,
but
are
not
limited
to,
appraisal,
negotiations
with
a
seller,
condition
of
structures
on
a
property,
and
so
forth.

The
Band
will
look
at
the
relationship
between
the
purchase
price
and
the
fair
market
value
through
the
use
of
a
cost
analysis,
and
will
provide
all
necessary
documentation
as
to
a
the
525
reasons
for
a
property's
purchase
price
(
whether
above
or
below
a
fair
market
value).

For
properties
that
are
contaminated,
the
Mille
Lacs
Band
supports
providing
a
cost
analysis
of
the
relationship
and
a
list
of
reasons
of
why
there
may
be
a
discrepancy
between
a
purchase
price
and
a
fair
market
value,
but
not
the
actual
dollar
values.
Again,
the
reason
is
that
tribal
acquisition
plans
could
be
adversely
affected.

These
concerns
are
raised
because
it
is
uncertain
whether
the
all
appropriate
inquiry
reports
are
confidential
or
not.
Without
assurances
that
the
reports
are
confidential,
the
Mille
Lacs
Band
is
extremely
reluctant
to
provide
information
that
may
jeopardize
our
interests
and
ability
to
acquire
more
lands.
If
confidentiality
is
assured,
the
Band
is
willing
to
provide
all
relevant
information
necessary
to
comply
with
federal
laws
and
regulations.

Response:
A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
require
further
investigation
above
and
beyond
what
would
normally
occur.
This
is
not
designed
to
be
a
bright­
line
test.

Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
5
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
­
Proposed
§
312.29
"
The
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property,
if
the
Property
was
not
Contaminated"
Imposes
a
new
Requirement
for
a
Property
Valuation
Analysis
and
Unduly
Intrudes
Into
Market
Transactions
Proposed
§
312.29
requires
that
purchasers
"
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."
526
With
this
requirement
in
place,
failure
to
commission
a
valuation
analysis
of
the
property
would
expose
prospective
purchasers
to
subsequent
claims
that
the
purchase
price
was
below
market
and
should
have
alerted
the
purchaser
to
the
presence
of
contamination.
Although
the
preamble
of
the
proposed
rule
states
that
a
formal
appraisal
is
not
necessary,
it
states
that
the
intent
is
to
determine
if
the
"
price
paid
for
the
property
is
reflective
of
its
market
value,"
and
may
be
accomplished
by
retaining
a
"
real
estate
expert"
to
conduct
a
"
comparability
analysis"
(
page
52567).
It
is
often
difficult
to
ascertain
market
value
without
making
various
adjustments
to
comparable
sales,
such
as
size,
location,
availability
of
parking,
rail
or
truck
access,
etc.
Given
the
potential
exposure
to
second
guessing,
prudent
purchasers
will
probably
commission
appraisals,
and
in
any
event
it
is
not
likely
that
the
non­
appraisal
market
valuation
envisioned
by
proposed
rule
will
differ
much
in
scope
or
cost
from
a
formal
appraisal.
Therefore,
the
cost
of
an
appraisal
should
be
included
in
the
additional
costs
associated
with
the
rule
The
rulemaking
committee
may
believe
that
§
312.29
is
required
by
the
Brownfields
Act
of
2002,
which
does
recite
the
phrase
"
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated."
However,
this
element
of
All
Appropriate
Inquiry
remains
unchanged
since
1986
and
to
the
extent
that
EPA
may
believe
that
it
is
a
statutorily
required
element
of
future
All
Appropriate
Inquiries,
it
is
already
covered
by
ASTM
El
527.
ASTM
El
527
properly
limits
"
the
relationship
of
the
purchase
price
to
the
value
of
the
property"
to
"
actual
knowledge
that
the
purchase
price
is
significantly
less
than
the
purchase
price
of
comparable
properties."
ASTM
El527­
00
§
5.4
There
is
no
requirement
that
the
purchaser
ascertain
and
consider
the
price
of
comparable
properties
or
ascertain
and
consider
the
fair
market
value
of
the
subject
property.
Hence,
existing
practice
does
not
intrude
into
market
transactions
and
does
not
require
an
appraisal.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
The
requirement
goes
beyond
an
assessment
of
"
actual
knowledge."
The
relationship
between
the
purchase
price
and
the
value
of
the
property
must
be
determined,
regardless
of
the
level
of
knowledge
held
by
the
prospective
purchaser
or
the
grantee
prior
to
conducting
the
all
appropriate
inquiries.

The
commenter
accurately
points
out
that
the
preamble
of
the
proposed
rule
explains
that
an
appraisal
is
not
necessary
to
fulfill
this
requirement
of
an
all
appropriate
inquiry.
Because
this
is
a
flexible,
performance
based
approach,
there
very
well
may
be
times
when
an
appraisal
is
warranted,
but
in
most
cases
information
regarding
the
relationship
between
the
price
paid
for
a
property
and
the
market
value
of
the
property
should
be
available
from
other
sources.
The
final
rule
does
not
dictate
that
any
particular
methodology
be
used
to
fulfill
the
requirement.

The
Agency
disagrees
with
the
commenter's
assertion
that
non­
appraisal
market
valuation
will
not
differ
much
in
the
scope
or
cost
of
a
formal
appraisal.
In
many
instances
any
discrepancy
between
price
and
market
value
will
be
readily
apparent.
In
others
it
may
take
some
review.
Whatever
the
case,
the
Agency
believes
that
this
is
a
variable
that
a
prudent
environmental
527
professional
would
take
account
of
in
determining
the
possibility
or
extent
of
environmental
risk
of
a
property.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
8
Excerpt
Text:
­­
a.
The
new
valuation
requirement
is
inconsistent
with
customary
practice,
imposes
substantial
costs,
and
inappropriately
intrudes
into
market
transactions.

Proposed
§
312.29
requires
that
purchasers
"
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."

With
this
requirement
in
place,
failure
to
commission
a
valuation
analysis
of
the
property
would
expose
prospective
purchasers
to
subsequent
claims
that
the
purchase
price
was
below
market
and
should
have
alerted
the
purchaser
to
the
presence
of
contamination.
Although
the
preamble
states
at
page
52567
that
a
formal
appraisal
is
not
necessary,
it
states
that
the
intent
is
to
determine
if
the
"
price
paid
for
the
property
is
reflective
of
its
market
value,"
and
may
be
accomplished
by
retaining
a
"
real
estate
expert"
to
conduct
a
"
comparability
analysis."
It
is
often
difficult
to
ascertain
market
value
without
making
various
adjustments
to
comparable
sales,
such
as
size,
availability
of
parking,
rail
or
truck
access,
etc.
Given
the
potential
exposure
to
second
guessing,
prudent
purchasers
will
probably
commission
appraisals,
and
in
any
event
it
is
not
likely
that
the
non­
appraisal
market
valuation
envisioned
by
EPA
will
differ
much
in
scope
or
cost
from
a
formal
appraisal.
Therefore,
the
cost
of
an
appraisal
should
be
included
in
the
additional
costs
associated
with
the
rule
if
this
section
is
to
be
retained.

Prices
of
commercial
real
estate
fluctuate
for
any
number
of
reasons
and
it
is
ranging
rather
far
afield
for
EPA
to
require
purchasers
to
explain
why
a
particular
price
was
appropriate
in
a
particular
transaction.
It
is
also
often
difficult
to
explain
significant
inconsistencies
in
the
sale
prices
of
apparently
comparable
properties
that
have
no
environmental
conditions
of
concern.
Every
source
we
have
consulted
to
date
has
agreed
that
this
valuation
requirement
is
entirely
new
to
environmental
site
assessment
and
is
not
consistent
with
existing
generally
accepted
good
commercial
practice.
See,
e.
g.,
Latham
&
Watkins,
Client
Alert
All
Appropriate
Inquiry
("
Client
Alert"),
October
4,
2004
at
3,
available
at
http://
www.
lw.
com
(
noting
that
the
proposed
AAI
rule
will
force
purchasers
to
conduct
a
"
much
more
extensive
investigation,
including
for
the
first
time
a
property
valuation
analysis").
We
believe
that
the
new
rule
imposes
substantial
costs
and
improperly
intrudes
into
private
market
transactions.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
528
be
conducted
by
the
environmental
professional.

The
commenter
is
incorrect
in
asserting
that
"
failure
to
commission
a
valuation
analysis
of
the
property
would
expose
prospective
purchasers
to
subsequent
claims
that
the
purchase
price
was
below
market
and
should
have
alerted
the
purchaser
to
the
presence
of
contamination."
The
criterion
to
consider
the
relationship
of
the
purchase
price
of
the
property
to
the
fair
market
value
of
the
property,
if
not
contaminated
has
been
part
of
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.
The
Agency
does
not
advocate,
and
the
final
rule
does
not
require,
commissioning
an
elaborate
market
analysis
for
every
property.
In
addition,
as
explained
in
the
preamble
to
the
proposed
rule,
the
regulation
does
not
require
that
a
formal
appraisal
of
a
property
be
conducted.
As
noted
in
the
preamble
of
the
proposed
rule,
"
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."
(
69
FR
at
p.
52567).

If
there
is
a
price
discrepancy
between
the
purchase
price
and
the
market
value,
the
Agency
notes
that
the
rule
merely
requires
that
the
purchaser
consider
whether
the
difference
is
due
to
the
presence
of
contamination
at
the
property
or
note
that
the
difference
is
due
to
other
factors
or
circumstances.

Commenter
Organization
Name:
EAA
Comment
Number:
0366
Excerpt
Number:
4
Excerpt
Text:
From
312.29
regarding:
the
relationship
of
purchase
price
to
the
value
of
the
property...

The
EAA
objects
to
the
fact
that
both
directly
and
indirectly,
the
EC
is
being
placed
into
a
position
that
he/
she
is
neither
qualified
or
licensed
to
certify.
Specifically,
this
proposed
rule
places
the
EC
into
the
position
of
a
property
appraiser.
In
many
states,
a
license
is
required
to
valuate
a
property
in
any
way.
By
Certifying,
even
what
the
proposed
purchaser
disseminates
to
the
EC
places
him/
her
into
the
appraisal
position,
which
is
a
clear
violation
of
the
law
in
most
states.

The
EAA
feels
this
section
should
be
revisited
in
the
spirit
of
keeping
specialized
professions
within
the
scope
of
their
service
and
to
prevent
them
from
being
forced
to
break
the
law.

Our
membership
at
the
Environmental
Assessment
Association
is
pleased
that
legal
standards
and
clear
rules
and
techniques
are
being
developed
for
our
profession.
The
EPA
is
commended
for
that
effort.
We
at
EAA
wish
to
be
a
part
of
this
process,
and
pray
that
you
will
strongly
consider
our
objections
in
the
spirit
of
preserving
a
well
in
trenched
industry
manned
by
productive
and
diligent
professionals.
529
Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
17
Excerpt
Text:
­
The
proposed
requirements
for
considering
the
relationship
of
the
purchase
price
to
the
value
of
a
property,
if
the
property
was
not
contaminated.

­­
Intertox
is
opposed
to
any
requirement
to
consider
the
relationship
of
purchase
price
to
property
value.
This
is
the
purview
of
real
estate,
land
valuation,
and
appraisers
and
has
no
place
in
the
environmental
site
assessment
process.
Engineers,
geologists,
and
other
environmental
processional
are
neither
trained
nor
should
be
involved
in
assessing
property
value.
To
do
so
could
sway
or
impact
the
findings
of
an
all
appropriate
inquiry.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.

Commenter
Organization
Name:
Dean,
Frank
Comment
Number:
0411
Excerpt
Number:
1
Excerpt
Text:
First,
in
Section
312.29
regarding
the
"
relationship
of
the
purchase
price
to
the
value
of
the
property".
If
this
goes
through
as
written,
you
are
requiring
that
I
break
the
law
in
Ohio.
In
Ohio,
and
many
other
states,
in
order
to
legally
comment
upon
the
valuation
of
real
property
one
must
be
a
State­
licensed
Appraiser.
Section
312.29,
as
written,
would
require
that
I
break
the
law
in
Ohio,
unless
I
also
become
a
licensed
Appraiser.
This
creates
an
obvious
"
Catch­
22"
situation
with
competing
laws.
It
will
also
mean
that
you
will
have
NO
providers
in
states
requiring
that
Appraisers
be
licensed.
This
untenable
situation
must
be
re­
visited
and
modified
or
eliminated
to
remove
this
conflict
or
my
Clients
will
suffer
severe
economic
hardship
until
530
either
Appraisers
get
science
degrees,
or
geologists
can
be
licensed
as
Appraisers.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.
However,
the
rule
does
not
require
an
appraisal.
If
an
owner/
grantee
must
consult
an
appraiser,
there
is
no
conflict
with
the
all
appropriate
inquiries
final
rule.
The
Agency
has
left
the
decision
of
whether
or
not
to
perform
a
formal
appraisal
to
the
discretion
of
the
prospective
landowner
or
grantee.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
9
Excerpt
Text:
Proposed
requirement
for
considering
the
relationship
of
the
purchase
price
to
the
value
of
noncontaminated

a)
Page
#
52580
b)
View:
This
should
not
be
part
of
a
Phase
I
report.
The
EP
is
not
qualified
to
evaluate
and
identify
a
material
difference
between
the
Purchase
Price
and
Appraised
Value.
Furthermore
this
level
of
information
is
often
not
provided
to
the
EP.
It
therefore
should
not
be
a
requirement
of
the
EP's
Phase
I
report
to
evaluate
this
issue.

c)
Assumptions:
The
seller
and/
or
buyer
should
be
willing
to
provide
any
information
pertaining
to
a
site
that
could
be
negatively
affected.
They
should
not
withhold
specialized
knowledge.
However
the
EP
cannot
force
them
to
reveal
such
information,
and
therefore
this
should
not
be
a
performance
standard
of
the
AAI
Phase
I
report.

d)
Burden:
Including
this
section
would
create
an
unreasonable
burden
on
the
EP,
in
an
area
they
have
no
expertise,
and
in
a
situation
they
may
not
have
complete
information.
It
is
not
reasonable
to
require
the
EP
to
comment
on
this
topic
in
their
Phase
I
process.

e)
Alternative:
AAI
is
intended
to
preserve
certain
CERCLA
defenses
of
a
purchaser.
The
purchaser
should
be
educated
that
price
vs.
appraised
value
is
one
consideration
in
the
application
of
these
defenses.
The
Phase
I
'
could'
have
a
narrative
paragraph
in
the
Executive
Summary
discussion
the
Purchaser's
responsibility
to
seek
legal
counsel
to
preserve
their
CERCLA
defenses
in
the
event
purchase
price
is
significantly
lower
then
the
Appraised
Value.
531
Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
4
Excerpt
Text:
Proposed
Rule
§
312.29(
a)
requires
that
the
User,
and
not
the
EP,
evaluate
whether
the
purchase
price
of
the
property
reasonably
reflects
the
market
value
of
the
property
in
an
uncontaminated
condition.
Given
the
fact
that
the
EPs
are
not
required
to
have
any
education,
training
or
experience
in
property
valuation
and
are
not
necessarily
familiar
with
the
local
real
estate
market,
we
agree
that
the
price
versus
value
determination
should
be
made
by
the
User.
The
User
ultimately
negotiates
the
purchase
price
or
agrees
to
finance
the
project
at
the
purchase
price;
thus,
the
User
is
in
the
best
position
to
assess
the
relationship
between
the
purchase
price
and
the
market
value
at
the
time
of
purchase.

Response:
The
Agency
agrees
with
the
commenter.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.

Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
5
Excerpt
Text:
Regarding
the
heading
of
What
Are
the
Proposed
Requirements
for
the
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property,
if
the
Property
Was
Not
Contaminated?
on
page
52567
of
the
proposed
rule:

­
The
question
itself
makes
an
initial
assumption
that
any
significant
discrepancy
in
the
purchase
price
to
the
perceived
value
of
the
property
is
due
to
contamination
issues.
This
may
or
may
not
be
the
case.
­
The
EP
is
oftentimes
not
in
contact
with
the
person(
s)
that
have
knowledge
of
the
purchase
price
and
thus
this
information
may
not
be
available.
­
Thirdly,
there
may
be
many
circumstances
why
the
purchaser
may
be
reluctant
to
provide
reasons
for
a
price
vs.
value
discrepancies
(
such
as
how
the
real
estate
vs.
physical
assets
are
valuated).
This
disclosure
could
be
of
particular
concern
when
it
becomes
"
documented"
in
a
532
report.

Response:
If
there
is
a
price
discrepancy
between
the
purchase
price
and
the
market
value,
the
Agency
notes
that
the
rule
merely
requires
that
the
purchaser
consider
whether
the
difference
is
due
to
the
presence
of
contamination
at
the
property
or
note
that
the
difference
is
due
to
other
factors
or
circumstances.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.

Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
4
Excerpt
Text:
One
provision
in
the
proposed
AAI
rule
is
to
establish
whether
the
property
is
selling
at
significantly
less
than
fair
market
value,
presumably
due
to
an
environmental
impairment
deduction.
When
an
ESA
is
commissioned,
the
fair
market
value
may
not
be
known;
often
real
estate
appraisals
are
occurring
concurrently.
In
a
commercial
or
industrial
area,
where
the
majority
of
ESA's
are
conducted,
appraisals
can
vary
significantly
between
professional
appraisers,
depending
on
the
comparables
found
and
the
experience
of
the
appraiser.
It
is
not
uncommon
to
have
two
or
three
appraisals
conducted
by
various
firms
to
establish
a
property
value.
Although
we
understand
and
agree
with
the
intent
of
this
requirement,
as
a
practical
matter
the
fair
market
value
is
often
not
known,
and
the
potential
deduction
for
environmental
impairment
is
never
clear
until
an
RI/
FS
is
complete.
We
recommend
that
this
is
removed
as
a
requirement
for
AAI.

Response:
A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
require
further
investigation
above
and
beyond
what
would
normally
occur.
This
is
not
designed
to
be
a
bright­
line
test.

Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
533
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
3
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Although
the
proposed
rule
apparently
envisions
that
the
valuation
analysis
will
be
conducted
by
the
purchaser
rather
than
the
environmental
professional,
it
also
requires
the
report
of
the
environmental
professional
to
take
into
account
this
information.
The
Environmental
Professional
simply
has
no
business
in
this
part
of
a
real
estate
transaction.
In
the
private
sector,
the
purchase
price
of
a
property
is
confidential
to
the
buying
and
selling
parties
involved
in
the
transaction.
The
third
party
vendors
are
not
commonly
privy
to
this
information
and
are
not
expected
to
ask.
If
I
were
to
make
common
practice
of
asking
my
clients
about
the
financial
specifics
of
their
deal,
they
would
tell
me
that
it
is
none
of
my
business,
and
they
would
be
right.
Private
sector
transactions
as
they
are
being
conducted
are
just
that,
private.

In
any
event,
the
ICF
analysis
includes
a
modicum
of
time
for
the
Environmental
Professional
to
consider
this
market
value
information,
but
no
time
or
cost
allocation
for
the
purchaser
to
conduct
the
market
value
analysis.
The
actual
conduct
of
the
market
valuation
will
definitely
have
some
cost.
If
the
environmental
professional
were
to
be
responsible
for
considering
this
information
(
which
I
oppose)
it
would
surely
take
longer
than
the
half
hour
allotted
by
ICF
and
would
surely
come
into
play
in
virtually
all
transactions
because
the
purchaser
would
conduct
a
defensive
appraisal
for
fear
of
liability
exposure.

Beyond
this,
an
EP
is
not
in
an
informed
position
to
be
able
to
"
take
into
account"
such
comparable
price
analyses
of
multiple
parcels
of
real
estate
in
an
area
and
draw
an
experienced
conclusion
regarding
purchase
price.
But
that
is
what
proposed
section
312.21(
b)
would
require.
This
is
a
separate
industry
altogether.
I
urge
that
this
proposed
section
3.12.29
be
removed.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.
534
The
cost
of
conducting
this
activity
was
not
accounted
for
in
the
economic
analysis
for
the
proposed
rule
because
this
does
not
constitute
a
change
over
the
interim
standard
or
statutory
requirements.
The
criterion
to
consider
the
relationship
of
the
purchase
price
of
the
property
to
the
fair
market
value
of
the
property,
if
not
contaminated,
has
been
part
of
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Wohlers
Environ
Svcs
Comment
Number:
0435
Excerpt
Number:
2
Excerpt
Text:
The
proposed
rule
revision
language
appears
to
place
the
onus
of
consideration
of
the
relationship
between
purchase
price
and
value
of
the
property
on
the
potential
buyer.
Does
the
EPA
expect
that
the
EP
and/
or
firm
conducting
the
AAI
investigation
should
be
involved
in
this
task?

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
6
Excerpt
Text:
It
is
not
clear
from
either
the
preamble
or
proposed
rule
why
the
relationship
between
the
purchase
price
to
the
fair
market
value
of
the
property
should
be
a
consideration
in
the
AAI.
The
objective
of
the
AAI
as
stated
in
312.20
(
d)
is
to
identify
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances.
While
we
agree
that
contamination
of
a
property
will
effect
the
purchase
price,
it
is
not
reasonable
to
require
that
this
relationship
be
part
of
the
AAI
report.
Persons
meeting
the
definition
of
an
EP
are
not
likely
to
have
knowledge
of
real
estate
prices
and
the
impact
of
contamination
on
them.
While
the
regulation
does
not
require
the
EP
to
make
this
determination,
the
determination
is
required
to
be
included
in
the
report.
It
would
seem
that
someone
knowledgeable
in
real
estate
pricing
would
be
involved
in
the
535
transaction
and
they
should
be
required
to
address
costs
issues.
Issues
of
cost
are
not
a
component
of
determining
if
a
property
is
contaminated
and
should
not
be
part
of
a
report
addressing
such.

Response:
A
great
strength
of
the
performance
based
inquiry
is
its
flexibility.
The
comparison
of
the
purchase
price
and
the
fair
market
value
of
a
property
provides
a
flexible
indicator
of
possible
environmental
contamination.
EPA
understands
that
a
discrepancy
is
not
determinative,
however,
it
may
require
further
investigation
above
and
beyond
what
would
normally
occur.
This
is
not
designed
to
be
a
bright­
line
test.

Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.

Commenter
Organization
Name:
Jerose,
Dave
Comment
Number:
PM­
0127­
0010
Excerpt
Number:
1
Excerpt
Text:
I
have
kind
of
taken
exception
to
312.29,
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated.

Most
environmental
professionals
aren't
really
qualified
to
comment
on
fair
market
pricing
for
properties.
I
would
like
to
see
that
removed
from
all
appropriate
inquiries,
and
that
issue
should
be
handled
under
a
separate
letter.
I
don't
really
see
where
it
implies
to
this
proposed
legislation.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.
536
Commenter
Organization
Name:
Dillman,
Malcolm
Comment
Number:
PM­
0359­
0001
Excerpt
Number:
2
Excerpt
Text:
Another
concern
that
I
have
is
with
312.29,
the
relationship
of
the
purchase
price
to
the
value
of
the
property
if
the
property
was
not
contaminated.
This
section
is
asking
for
expertise
outside
the
area
of
an
Environmental
Professional,
and
require
the
services
of
a
certified
and
licensed
appraiser,
which,
in
my
opinion,
will
increase
substantially
the
cost
of
the
investigation.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated,
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.
In
addition,
there
is
no
requirement
in
the
final
rule
to
disclose
the
contents
of
the
written
report
to
any
party.
537
3.8.2
Explanation
of
the
Assessment
Process
Provided
in
the
Preamble/
Rule
is
Inadequate
Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
2
Excerpt
Text:
The
application
of
the
sales
comparison
approach
is
simply
more
complicated
than
described
in
the
Preamble.
It
is
frequently
difficult
to
find
highly
similar
property
sales
(
or
comparable
sales),
and
thus
the
services
of
a
professional
appraiser
are
required.
Professional
appraisers
analyze
details
of
verified
comparable
sales
and
know
how
to
make
adjustments
to
the
sales
or
expand
the
search
to
other,
similar
areas.
Public
policy
and
case
law
have
well
outlined
what
is
needed
to
produce
a
credible
opinion
of
market
value.

In
many
cases,
the
sales
comparison
approach
is
not
the
primary
approach
utilized
by
the
marketplace.
The
"
cost
approach"
and
"
income
approach"
sometimes
provide
the
definitive
value
for
a
property.
Thus,
the
Preamble
provision
specifying
consultation
by
a
real
estate
expert
who
can
perform
a
"
comparability
analysis"
is
confusing
because
of
its
vagueness.

Because
of
this,
we
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
to
haunt
a
property
owner
(
or
the
EPA)
in
the
future.
That
being
said,
it
is
not
our
intent
to
inject
additional
expenses
to
the
transaction
process.
Our
goal
is
to
caution
the
EPA
that
the
issue
should
not
be
avoided
or
taken
lightly,
and
that
a
ready
solution
is
available
to
address
this
confusion.

Suggested
Modification
We
suggest
a
minor
clarification
in
the
Preamble,
Section
III,
M,
Paragraph
2,
would
help
provide
better
direction
to
the
public
and
prospective
purchasers.
We
believe
this
recommendation
will
require
little
or
no
additional
cost
to
the
prospective
purchaser
if
incorporated
correctly.

We
request
EPA
amend
Section
III,
M,
of
the
Preamble
to
read
as
follows:

The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.
538
The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted.

Response:
The
preamble
to
the
proposed
rule
states,
"
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"
(
69
FR
at
52567).
The
preamble
also
notes
that
an
appraisal
is
not
required
in
this
comparison.
The
Agency
disagrees
with
the
commenter
as
to
the
complicated
nature
of
this
comparison.
In
the
preamble
to
the
final
rule,
EPA
states
that
if
an
appraisal
is
conducted
for
the
property,
the
results
of
the
appraisal
may
provide
valuable
information
for
the
all
appropriate
inquiries
investigation.
The
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
9
Excerpt
Text:
9
Steve
Myers
Property
Value
Determination
312.22(
a)(
3),
312.29(
a)
Who
should
determine
the
fair
market
value
if
the
property
isn't
contaminated?
Will
there
be
qualifications
required?
Should
the
value
come
from
the
Assessor's
office?

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
10
Excerpt
Text:
10
Steve
Myers
Property
Value
Determination
312.22(
a)(
3)
and
312.29(
b)
How
do
you
determine
the
fair
market
value
of
the
contaminated
property
without
doing
a
complete
site
characterization?
It
is
my
understanding
that
these
reports
are
due
the
time
the
title
changes
539
hands.
Without
a
site
characterization,
who
should
determine
the
fair
market
value
if
the
property
is
contaminated?
Will
there
be
qualifications
required
for
this
person?

Response:
At
the
onset
of
this
response
we
note
from
the
preamble
of
the
proposed
rule
that
"
§
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"
(
69
FR
52567).

A
proper
reading
of
this
language
should
make
it
easy
to
address
the
commentor's
timing
concerns.
The
comparison
in
prices
here
is
made
between
the
purchase
price
and
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
This
means
that
the
comparison
can
take
place
at
any
time,
and
doesn't
require
any
amount
of
contamination
to
be
detected.
The
purpose
of
this
comparison
is
to
look
at
the
difference
between
the
price
paid
and
the
market
value
of
the
property
as
an
indicator
of
possible
contamination.
If
the
prices
are
significantly
different,
this
should
indicate
to
the
purchaser
that
additional
inquiry
should
be
done
if
liability
protection
is
desired.

The
preamble
to
the
proposed
rule
states,
"
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"
(
69
FR
at
52567).
The
preamble
also
notes
that
an
appraisal
is
not
required
in
this
comparison.
The
Agency
disagrees
with
the
commenter
as
to
the
complicated
nature
of
this
comparison.
In
the
preamble
to
the
final
rule,
EPA
states
that
if
an
appraisal
is
conducted
for
the
property,
the
results
of
the
appraisal
may
provide
valuable
information
for
the
all
appropriate
inquiries
investigation.
The
final
rule
does
not
dictate
how
the
prospective
property
owner
of
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Maloy,
Richard
Comment
Number:
0255
Excerpt
Number:
1
Excerpt
Text:
I
am
concerned
that
the
Congressional
mandate
for
comparison
of
fair
market
value
of
the
property
to
the
purchase
price
was
not
sufficiently
addressed
by
the
Negotiated
Rule
Making
Committee
and
in
the
proposed
rule.
If
left
unaddressed,
we
believe
Section
312.29
will
leave
prospective
purchasers
(
and
EPA)
in
a
precarious
position,
and
that
vagaries
in
the
proposed
rule
will
continue
to
dissuade
the
purchase
of
contaminated
or
potentially
contaminated
properties.

Environmental
Litigation
and
Market
Value
Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
Fair
market
value
is
defined
and
mandated
to
be
used
throughout
federal
law,
our
judicial
system,
interstate
and
international
commerce,
and
540
throughout
the
financial
services
communities.
Federal
Agencies
which
utilize
market
value
in
their
regulations
include:
the
Department
of
Transportation,
Department
of
Interior,
General
Services
Administration,
Office
of
Management
and
Budget
and
the
federal
financial
institution
regulatory
agencies.

I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
estimate
of
market
value
by
a
competent
appraisal
professional.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
appraisers
and
a
majority
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
market
value
be
estimated
by
licensed
or
certified
appraisers
(
see
attachment
for
mandatory
appraiser
licensing
states).
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice,
the
accepted
standards
of
the
appraisal
profession.
It
does
not
appear
that
the
proposed
rule
has
taken
this
into
consideration,
or
else
this
would
have
been
discussed
in
the
proposed
rule.
As
it
is,
the
proposed
rule
may
be
advising
prospective
purchasers
to
violate
appraiser
licensing
laws
in
mandatory
appraiser
licensing
states.

I
along
with
other
appraisers
who
testify
in
environmental
litigation
regarding
property
market
value
before
and
after
contamination
in
conjunction
work
with
other
qualified
environmental
professionals.
My
experience
is
that
opinions
of
market
value
"
affected"
and
"
unaffected",
by
professional
appraisers
are
given
far
stronger
weight.
I
believe
it
is
unlikely
that
a
competent
attorney
would
prepare
a
defense
for
a
client
in
federal
court
utilizing
the
concepts
in
the
proposed
rule,
which
contradict
the
law
itself.

To
provide
a
sustainable
defense,
a
proper
baseline,
must
be
established.
This
baseline
is
market
value.
Market
value
is
established
through
the
appraisal
process.
Unfortunately,
the
procedures
outlined
in
Section
111,
M,
Paragraph
2,
fall
short
of
providing
a
sustainable
baseline
(
market
value).

Throughout
most
of
the
proposed
rule,
EPA
is
careful
to
require
that
research
be
conducted
in
a
competent
manner.
The
Preamble
does
not
state
that
specific
types
of
research
methodology
are
acceptable
or
unacceptable.
For
example,
it
does
not
state
that
a
history
of
ownership
achieves
compliance
by
using
Sanborn
Maps
or
tax
records.
Yet
in
Section
III
M,
Paragraph
2,
of
the
Preamble,
EPA
defines
a
specific
on
how
to
comply
with
regard
to
the
purchase
price­
market
value
comparison.
In
Section
III
M,
Paragraph
2,
EPA
loses
its
standard
of
referral
to
competency
and
provides
its
own
version
of
valuation
methodology.
Valuation
methodology
noted
is,
inconsistent
with
accepted
appraisal
methodology,
public
policy
and
case
law.

The
application
of
the
Sales
Comparison
Approach
is
simply
more
complicated
than
described
in
the
Preamble.
It
is
frequently
difficult
to
find
highly
similar
property
sales
(
or
comparable
sales),
and
thus
the
services
of
a
professional
appraiser
are
required.
Professional
appraisers
analyze
541
details
of
verified
comparable
sales
and
know
how
to
make
adjustments
to
the
sales
or
expand
the
search
to
other,
similar
areas.
Public
policy
and
case
law
have
well
outlined
what
is
needed
to
produce
a
credible
opinion
of
market
value.

In
many
cases,
the
sales
comparison
approach
is
not
the
primary
approach
utilized
by
the
marketplace.
The
"
Cost
Approach"
and
"
Income
Approach"
sometimes
provide
the
definitive
value
for
a
property.
Thus,
the
Preamble
provision
specifying
consultation
by
a
real
estate
expert
who
can
perform
a
"
comparability
analysis"
is
confusing
because
of
its
vagueness.

Because
of
this,
I
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
to
haunt
a
property
owner
(
or
EPA)
in
the
future.
That
being
said,
it
is
not
our
intent
to
inject
additional
expenses
than
will
be
added
into
the
transaction
process
by
the
new
all
appropriate
inquiry.
Our
goal
is
to
caution
EPA
that
the
issue
should
not
be
avoided
or
taken
lightly,
and
that
a
ready
solution
is
available
to
address
this
confusion.

Suggested
Modification
I
suggest
a
minor
clarification
in
the
Preamble,
Section
III
M
paragraph
2
would
help
provide
better
direction
to
the
public
and
prospective
purchasers.
I
believe
this
recommendation
will
require
little
or
no
additional
cost
to
the
prospective
purchaser
if
incorporated
correctly.

I
request
EPA
amend
Section
III
M
of
the
Preamble
to
read
as
follows:
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
a
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
valuation
may
be
made
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
value
opinion
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.
The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted.

Response:
EPA
thanks
the
commenter
for
the
information
on
appraisals
and
the
assessment
of
market
value.
We
remind
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
542
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Fewel,
Chris
Comment
Number:
0370
Excerpt
Number:
2
Excerpt
Text:
Because
of
this,
I
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
to
haunt
a
property
owner
(
or
EPA)
in
the
future.

I
support
a
minor
clarification
to
the
Preamble,
Section
III
M
paragraph
2
to
help
provide
better
direction
to
the
public
and
prospective
purchasers.
Section
III
M
of
the
Preamble
should
read
as
follows:

"
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.

The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted."
543
Response:
EPA
thanks
the
commenter
for
the
information
on
appraisals
and
the
assessment
of
market
value.
We
remind
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
of
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Tucker,
Noble
Comment
Number:
0442
Excerpt
Number:
1
Excerpt
Text:
Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
opinion
of
market
value
by
a
competent
appraisal
professional.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
appraisers
and
a
majority
of
states
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
opinions
of
market
value
to
be
estimated
by
licensed
or
certified
appraisers.
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.

Because
of
this,
I
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
to
haunt
a
property
owner
(
or
EPA)
in
the
future.

I
support
a
minor
clarification
to
the
Preamble,
Section
III
M
paragraph
2
to
help
provide
better
direction
to
the
public
and
prospective
purchasers.
Section
III
M
of
the
Preamble
should
read
as
follows:

"
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
544
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.

The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted."

Response:
Please
see
response
to
comment
number
0370,
excerpt
2.

Commenter
Organization
Name:
Emanuels,
Dean
Comment
Number:
0447
Excerpt
Number:
1
Excerpt
Text:
I
am
the
Chief
Appraiser
of
a
regional
bank
and
also
in
charge
of
Environmental
Policy
within
the
bank.
Yesterday,
I
attended
a
meeting
overviewing
the
new
AAI
standards
put
on
by
a
leading
environmental
services
company
(
EDR)
and
it
was
unclear
to
the
environmental
site
assessment
professionals
how
they
can
even
begin
to
comment
on
or
address
the
issues
of
market
value.
They
wanted
to
comply
with
AAI
but
had
no
idea
where
to
start
with
this
issue.

I
don't
have
the
answers
but
the
EPA
really
needs
to
enlist
the
help
of
the
Appraisal
Foundation
Members
(
Appraisal
Institute,
ASA,
ASFMRA).
If
an
USPAP
compliant
appraisal
is
needed
then
great,
appraisers
are
the
best
at
providing
that
service.

AAI
is
extremely
important,
let's
get
it
right
the
first
time.
Good
Luck.

Response:
The
preamble
to
the
proposed
rule
states,
"
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"
(
69
FR
at
52567).
The
preamble
also
notes
that
an
appraisal
is
not
required
in
this
comparison.
The
Agency
disagrees
with
the
commenter
as
to
the
complicated
nature
of
this
comparison.
In
the
preamble
to
the
final
rule,
EPA
states
that
if
an
appraisal
is
conducted
for
the
property,
the
results
of
the
appraisal
may
provide
valuable
information
for
the
all
appropriate
inquiries
investigation.
The
final
rule
does
not
dictate
how
the
prospective
property
owner
of
545
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Brinegar,
Carl
Comment
Number:
0449
Excerpt
Number:
2
Excerpt
Text:
Because
of
this,
I
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
back
to
haunt
a
property
owner
(
or
EPA)
in
the
future.

I
support
a
minor
clarification
to
the
Preamble,
Section
III
M
paragraph
2
to
help
provide
better
direction
to
the
public
and
prospective
purchasers.
Section
III
M
of
the
Preamble
should
read
as
follows:

"
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.

The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted."

Response:
Please
see
response
to
comment
number
0370,
excerpt
2.

Commenter
Organization
Name:
Lisle,
Dareyl
Comment
Number:
0450
Excerpt
Number:
1
Excerpt
Text:
546
As
an
appraiser
and
an
environmental
engineer
and
a
real
estate
broker,
and
having
been
on
the
E­
50
committee
in
the
past
I
strongly
urge
you
to
reconsider
the
current
proposal
of
a
Congressional
mandate
for
comparison
of
fair
market
value
of
the
property
to
the
purchase
price
as
it
was
not
sufficiently
addressed
by
the
Negotiated
Rule
Making
Committee
and
in
the
proposed
rule.
This
requirement
of
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value
can
not
work.
The
only
persons
educated
on
determining
Market
Value
are
appraisers­
period.
Anyone
else
would
be
making
an
unsubstantiated
opinion
of
value
toward
a
property.
The
proposal
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis
which
is
called
a
CMA
or
Comparative
Market
Analysis
does
not
take
into
consideration
two
very
valid
appraisal
methods­
The
Replacement
Cost
Approach
and
the
Income
Approach.
A
real
estate
expert
(
Real
Estate
Sales
person
or
Broker)
is
not
familiar
with
these
methods
and
under
the
definition
of
Market
Value
all
appropriate
methods
need
to
be
utilized.
I
work
in
the
commercial
real
estate
arena
doing
sales,
appraisals,
P1,2,3
ESA's,
and
consulting
and
I
have
not
met
a
"
real
estate
expert"
with
the
knowledge
or
the
understanding
of
how
to
determine
Market
Value
as
accomplished
by
an
appraiser
to
date.
To
consider,
pick
and
compare
a
Real
Estate
Sales
person
or
Brokers
CMA
to
the
actual
sales
price
vs
an
appraisal
of
the
same
property
to
record
the
difference.

Real
Estate
Sales
Persons
and
Brokers
provide
CMA
and
expertise
with
respects
to
sales,
or
purchase
and
leasing.

Environmental
Specialist
provide
expertise
in
determining
the
environmental
status
of
property.

Appraisers
provide
the
expertise
in
determining
Market
Value
or
Fair
market
Value.

Do
not
convolute
the
definition
of
these
professions
and
professionals.
To
do
so
will
have
long
reaching
consequences
in
the
Real
Estate
and
banking/
lending
markets.
I
support
a
minor
clarification
to
the
Preamble,
Section
III
M
paragraph
2
to
help
provide
better
direction
to
the
public
and
prospective
purchasers.
Section
III
M
of
the
Preamble
should
read
as
follows:

"
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.
547
Case
studies
showing
the
diminution
of
value
are
typically
done
by
appraisers
or
persons
with
appraisal
knowledge.
These
should
be
made
available
to
expert
appraisers
providing
Market
Value
on
properties
having
environmental
conditions
that
have
the
potential
to
change
the
value
of
a
property
whether
it
be
real
or
perceived.

Response:
Please
see
response
to
comment
number
0370,
excerpt
2.

Commenter
Organization
Name:
Sullivan,
Timothy
Comment
Number:
0451
Excerpt
Number:
2
Excerpt
Text:
I
believe
the
proposed
rule
provides
deficient
appraisal
methodology
advice
without
adequately
explaining
the
valuation
process,
which
could
come
to
haunt
a
property
owner
(
or
EPA)
in
the
future.

I
support
a
minor
clarification
to
the
Preamble,
Section
III
M
paragraph
2
to
help
provide
better
direction
to
the
public
and
prospective
purchasers.
Section
III
M
of
the
Preamble
should
read
as
follows:

"
The
comparison
of
purchase
price
to
Fair
Market
Value
required
to
meet
Section
312.29
of
the
Act
may
be
accomplished
in
several
ways.
While
the
proposed
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion,
the
prospective
purchaser
should
make
the
decision
regarding
scope
of
this
study
in
light
of
a
potential
need
to
defend
against
liability
as
a
prospective
purchaser.
An
informal
assessment
of
the
property
may
be
conducted
using
acceptable
valuation
methodology.
The
Prospective
Purchaser
must
decide
if
the
informal
assessment
is
sustainable
in
a
later
action.
But,
it
should
be
noted
that
in
most
transactions,
a
formal
appraisal
is
being
prepared
for
lending
or
other
purposes.
The
intended
use
section
of
the
appraisal
can
include
its
utilization
for
AAI
compliance.
Appraisals
are
prepared
to
meet
the
Uniform
Standards
of
Appraisal
Practice
(
USPAP).
USPAP
requires
that
appraisers
analyze
the
details
of
the
current
transaction.
This
analysis
can
and
should
include
a
study
of
the
relationship
of
the
price
being
paid
to
market
value.

The
objective
is
to
determine
whether
or
not
the
purchase
price
to
be
paid
for
the
property
is
reflective
of
the
environmental
conditions
present
at
the
site.
Significant
differences
between
the
Market
Value
of
the
property
"
as
if
unimpaired"
and
the
purchase
price
provide
a
basis
for
this
observation.
Reasons
for
any
differences
between
unimpaired
market
value
and
sales
price
should
be
noted."

Response:
Please
see
response
to
comment
number
0370,
excerpt
2.
548
3.8.3
The
Agency
Should
Clarify
the
Definition
of
Fair
Market
Value
Commenter
Organization
Name:
Arnon
Environmental
&
Geoscience,
LLC
Comment
Number:
0227
Excerpt
Number:
1
Excerpt
Text:
As
the
Environmental
Professional
must
consider
the
Purchase
Price
vs.
the
Fair
Market
Value
of
a
piece
of
real
property,
please
clarify
what
EPA
considers
to
be
the
definition
of
Fair
Market
Value.
Would
this
be
the
same
as
the
value
of
the
real
estate
used
for
determining
property
taxes
by
the
local
assessor's
office?

Response:
Please
see
response
to
comment
number
0058,
excerpt
1.
549
3.8.4
The
Rule
Should
Require
a
Commercial
Appraisal
by
a
Real
Estate
Expert/
Appraiser
Commenter
Organization
Name:
Appraisal
Institute
Comment
Number:
0212
Excerpt
Number:
1
Excerpt
Text:
We
are
concerned
that
the
Congressional
mandate
for
comparison
of
the
fair
market
value
of
the
property
to
the
purchase
price
was
not
sufficiently
addressed
by
the
Negotiated
Rulemaking
Committee
and
in
the
proposed
rule.
If
left
unaddressed,
we
believe
Section
312.29
will
leave
prospective
purchasers
(
and
the
EPA)
in
a
precarious
position,
and
that
vagaries
in
the
proposed
rule
will
continue
to
dissuade
the
purchase
of
contaminated
or
potentially
contaminated
properties.

Environmental
Litigation
and
Market
Value
Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
Fair
market
value
is
defined
and
mandated
to
be
used
throughout
federal
law,
our
judicial
system,
interstate
and
international
commerce
and
the
financial
services
sector.
Federal
agencies
utilizing
market
value
in
their
regulations
include:
the
Department
of
Transportation,
Department
of
Interior,
Department
of
Housing
and
Urban
Development,
General
Services
Administration
and
Office
of
Management
and
Budget
as
well
as
the
five
federal
financial
institution
regulatory
agencies.

We
are
not
aware
of
any
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized."
To
the
contrary,
most
federal
agencies
seek
to
promote
the
acquisition
of
the
most
accurate
opinion
of
market
value
by
using
the
services
of
a
competent
appraisal
professional.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
real
estate
appraisers
and
a
majority
of
states
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
opinions
of
market
value
to
be
estimated
by
licensed
or
certified
appraisers
(
see
attachment
for
mandatory
appraiser
licensing
states).
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.
It
does
not
appear
that
the
proposed
rule
has
taken
this
into
consideration,
or
else
this
would
have
been
discussed
in
the
proposed
rule.
As
it
is,
the
proposed
rule
may
be
advising
prospective
purchasers
to
violate
appraiser
licensing
laws
in
mandatory
appraiser
licensing
states.

Additionally,
many
of
our
members
testify
in
environmental
litigation
regarding
property
market
value
before
and
after
contamination
in
conjunction
with
other
qualified
environmental
professionals,
and
their
experiences
tell
us
that
opinions
by
professional
appraisers
of
the
market
value
of
properties
"
affected"
and
"
unaffected"
by
contamination
are
given
strong
weight.
We
believe
it
is
unlikely
that
a
competent
attorney
would
prepare
a
defense
for
a
client
in
federal
550
court
utilizing
the
concepts
in
the
proposed
rule,
which
contradict
the
law
itself.

To
provide
a
sustainable
defense,
a
proper
baseline
must
be
established.
This
baseline
is
market
value.
Market
value
is
established
through
the
appraisal
process.
Unfortunately,
the
procedures
outlined
in
Section
III,
M,
Paragraph
2,
fall
short
of
providing
a
sustainable
baseline
(
market
value).

Response:
Please
see
responses
to
comment
numbers
0212
(
excerpt
3),
0058
(
excerpt
1),
and
0234
(
excerpt
3).

Commenter
Organization
Name:
Harris,
M
Comment
Number:
0236
Excerpt
Number:
1
Excerpt
Text:
In
the
last
two
years
of
working
with
appraisals
after
my
college
graduation,
I
believe
appraisals
and
phase
I
offer
beneficial
viewpoints
that
are
both
equally
valuable.
Commercial
appraisals
should
be
viewed
as
valuations
as
if
the
property
was
not
contaminated.
Appraisers
are
experts
in
real
estate
functionality,
not
educated
environmentalists.
Personally,
I
am
intent
on
becoming
an
"
environmental
appraiser"
that
speaks
the
lingo
to
environmental
toxicology
and
commercial
appraisals.
This
is
a
rare
breed.
Commercial
appraisals
of
brownfields
and
such
should
be
only
reviewed
by
those
educated
in
both
fields
of
research.
Ultimately,
the
sale
of
the
property
will
determine
the
amount
of
damage
caused
by
the
stigma
associated
with
environmental
clean­
up
costs.
Appraisers
are
certainly
needed
for
their
financial
concerns,
as
well
as
Planners.
The
severity
of
the
contamination
and
actual
size
of
the
acreage
should
determine
the
amount
money
spent
to
estimate
the
value
­
as
well
as
the
"
foreseen
value"
that
can
be
used
by
local
city
planners.
A
holistic
approach
would
be
most
beneficial
in
these
reclamation
of
brownfields
­
although
it
will
take
more
time
and
red­
tape,
the
empirical
need
to
determine
the
economic
feasibility
for
a
private
business
to
rebuild
a
contaminated
site
should
be
the
appraised
value
on
the
appraisal.
JUST
as
wetlands
delineations
are
sub­
contracted
out
in
many
environmental
reports,
an
approach
to
value
which
includes
cost
estimates
and
Phase
I
should
be
added
and
reconciled
in
the
commercial
appraisal.
That
should
be
required.
From
my
vantage
point,
most
commercial
appraisals
lack
sufficient
environmental
analysis
but
provide
very
accurate
approaches
to
probable
market
value
as
seen
by
real
estate
experts.

Response:
At
the
onset
of
this
response
we
note
from
the
preamble
of
the
proposed
rule
that
"
§
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"
(
69
FR
52567).

The
comparison
is
made
between
the
purchase
price
and
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
This
means
that
the
comparison
can
take
place
at
any
time,
and
does
not
require
any
amount
of
contamination
to
be
detected.
The
purpose
of
551
this
comparison
is
to
look
at
the
difference
between
the
price
and
market
value
as
an
indicator
of
possible
contamination.
If
the
prices
are
significantly
different,
this
should
indicate
to
the
purchaser
or
grantee
that
additional
inquiry
should
be
done
if
liability
protection
is
desired.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
5
Other
Sections:
NEW
­
3.8.1
­
The
EP
should
not
be
required
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property
Excerpt
Text:
Section
312.29
needs
to
be
completely
eliminated.
Trained
and
licensed
appraisers
should
be
the
only
ones
to
provide
property
market
value
analysis
Response:
The
preamble
to
the
proposed
rule
states,
"
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"
(
69
FR
at
52567).
The
preamble
also
notes
that
an
appraisal
is
not
required
in
this
comparison.
The
Agency
disagrees
with
the
commenter
as
to
the
complicated
nature
of
this
comparison.
In
the
preamble
to
the
final
rule,
EPA
states
that
if
an
appraisal
is
conducted
for
the
property,
the
results
of
the
appraisal
may
provide
valuable
information
for
the
all
appropriate
inquiries
investigation.
The
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Fewel,
Chris
Comment
Number:
0370
Excerpt
Number:
1
Excerpt
Text:
Congress
required
that
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value.
Yet
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
opinion
of
market
value
by
a
competent
appraisal
professional.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
552
appraisers
and
a
majority
of
states
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
opinions
of
market
value
to
be
estimated
by
licensed
or
certified
appraisers.
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.

Response:
Please
see
responses
to
comment
numbers
0212
(
excerpt
3),
0058
(
excerpt
1),
and
0234
(
excerpt
3).

Commenter
Organization
Name:
RT
Environmental
Services
Comment
Number:
0406
Excerpt
Number:
4
Excerpt
Text:
In
addition,
it
should
be
noted
that
environmental
site
assessors
are
not
trained
to
be
property
appraisers,
and
separate
qualifications
should
be
established
for
such
appraisers.
In
general,
appraisals
should
be
an
attachment
to
an
environmental
site
assessment
report,
and
not
part
of
it,
because
the
appraisals
will
virtually
always
be
prepared
by
a
separate
professional.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional.
A
prospective
landowner
or
grantee
may
hire
the
services
of
a
licensed
appraiser
if
he
or
she
determines
that
such
expertise
is
necessary
to
fulfill
the
requirement.

EPA
reminds
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.
553
Commenter
Organization
Name:
Wohlers
Environ
Svcs
Comment
Number:
0435
Excerpt
Number:
3
Excerpt
Text:
Regardless
of
the
answer
to
the
above
question,
does
the
EPA
expect
that
the
AAI
report
(
i.
e.,
the
Phase
I
Environmental
Site
Assessment)
should
include
information
regarding
comparison
of
the
purchase
price
of
the
property
to
the
value
of
the
property?
Based
on
our
experience,
real
estate
appraisal
experts
with
the
required
knowledge
and
training
for
real
estate
valuation
opinions
are
more
appropriate
for
this
task
than
the
EP.

Response:
Section
101(
35)(
B)(
iii)(
VIII)
requires
that
the
relationship
of
the
purchase
price
to
the
value
of
the
property
,
if
the
property
was
not
contaminated
be
included
in
all
appropriate
inquiries
federal
regulations.
The
final
regulations
includes
this
requirement
within
the
responsibilities
for
the
prospective
landowner
or
grantee
(
see
§
312.22
and
§
312.29).
This
activity
does
not
have
to
be
conducted
by
the
environmental
professional
and
the
information
collected
in
carrying
out
the
activity
does
not
have
to
be
provided
to
the
environmental
professional
if
the
prospective
property
owner
or
grantee
does
not
wish
to
disclose
the
information.
Documentation
of
reasons
for
discrepancies
between
the
purchase
price
and
the
value
of
the
property
should
be
noted
in
the
written
report.

Commenter
Organization
Name:
Wilson,
Shawn
Comment
Number:
0440
Excerpt
Number:
2
Excerpt
Text:
Do
not
be
tempted
to
complete
real
estate
transactions
involving
public
money
without
thorough,
substantive,
real
estate
appraisals.
We
really
don't
need
an
"
EPA
Bailout
Bill"
in
the
future
to
go
along
with
the
"
S&
L
Bailout
Bill."

Just
as
with
land
surveys,
environmental
assessments,
and
other
components
of
most
real
estate
transactions:
YOU
NEED
A
REAL
APPRAISAL
BY
A
REALL
APPRAISER
TO
MAKE
SURE
THAT
THE
MONEY
IS
BEING
SPENT
CORRECTLY.

Kindly
do
not
adapt
rules
which
circumvent
this
process
of
checks
and
balances.

Response:
The
Agency
is
fully
aware
that
appraisals
in
real
estate
deals
are
very
valuable
in
several
regards.
EPA
takes
no
position
for
or
against
appraisals
for
the
land
and
thus
the
use
of
such
appraisals
should
not
change.
The
Agency's
position
is
merely
that
for
the
purposes
of
completing
an
all
appropriate
inquiry
a
formal
appraisal
is
not
required.
EPA
is
aware
of
the
benefits
of
appraisals
and
believes
that
they
will
be
used
to
complete
some
all
appropriate
inquiries,
at
the
discretion
of
the
prospective
landowner
or
grantee.

EPA
reminds
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
554
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Swanson,
Eric
Comment
Number:
0441
Excerpt
Number:
1
Excerpt
Text:
I
am
concerned
that
the
Congressional
mandate
for
comparison
of
fair
market
value
of
the
property
to
the
purchase
price
was
not
sufficiently
addressed
by
the
Negotiated
Rule
Making
Committee
and
in
the
proposed
rule.

Congress
required
that
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value.
Yet
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

Response:
EPA
believes
that
the
proposed
rule
effectuates
congressional
intent.
EPA
reminds
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.
555
Commenter
Organization
Name:
Swanson,
Eric
Comment
Number:
0441
Excerpt
Number:
2
Excerpt
Text:
Just
who
in
the
hell
would
you
hire
as
a
"
real
estate
expert"
that
would
work
for
less
than
what
I
make
as
an
appraiser?

As
an
appraiser,
I
know
first
hand
how
difficult
it
is
to
accurately
determine
market
value
of
a
property
when
all
factors
are
carefully
analyzed.
The
mere
suggestion
that
you
could
achieve
the
same
result
without
doing
the
required
analysis
is,
frankly,
idiotic.

I
recognize
the
motivation
behind
this
move,
and
I've
seen
the
same
cut
throat
corner­
cutting
in
the
mortgage
industry
many
times.
Every
time
it's
allowed
to
slip
into
practice,
it
blows
up
in
somebody's
face.
The
people
responsible
for
the
debacle
are
rarely
held
accountable.
I
will
see
to
it
that
changes
this
time.

THERE
ARE
NO
SHORTCUTS
TO
QUALITY!
MY
ONLY
CONCLUSION
FROM
YOUR
INITIATIVE
IS
THAT
QUALITY
IS
NOT
IMPORTANT
TO
YOU.

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).

Commenter
Organization
Name:
Tucker,
Noble
Comment
Number:
0442
Excerpt
Number:
2
Excerpt
Text:
As
an
appraiser
of
numerous
petroleum
related
properties,
service
stations,
car
washes,
lube
centers,
and
automotive
repair
facilities
I
feel
that
this
rule
is
another
example
of
governmental
oversight
and
lack
of
knowledge
regarding
the
appraisal
profession.
I
am
far
more
competent
to
render
an
opinion
of
value
on
properties
of
this
nature
than
a
"
competent
real
estate
expert"
As
appraisers
we
are
bound
by
requirements
by
our
state,
USPAP,
and
The
Appraisal
Institute.
The
federal
government,
other
governmental
agencies,
states,
appraisers,
and
their
organizations
have
spent
millions
and
millions
of
dollars
trying
to
take
the
confusion
out
of
appraising
by
creating
the
UNIFORM
STANDARDS
OF
PROFESSIONAL
APPRAISAL
PRACTICE
and
now
some
governmental
agency
wants
to
change
the
rules.
This
will
cause
unfair
valuations
to
the
owners
of
these
properties.

Many
of
these
properties,
especially
service
stations,
have
first
rights
of
refusals
in
the
lease
contracts.
The
station
dealer
needs
a
fair
unbiased
opinion
of
value
in
order
to
logically
determine
whether
or
not
to
exercise
these
options.
By
enabling
an
"
All
Appropriate
Inquiry
(
AAI)
as
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value
this
congressional
mandate
will
cause
harm
to
the
dealers
and
put
more
control
in
the
hands
of
the
large
corporations
who
already
have
"
oligolopistic"
and
nearly
"
monopolisitic"
characteristics.
556
Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).

Commenter
Organization
Name:
Husij,
Michael
Comment
Number:
0445
Excerpt
Number:
1
Excerpt
Text:
If
the
purpose
is
"
to
determine
whether
or
not
the
purchase
price
for
the
property
is
reflective
of
market
value",
then
a
complete
appraisal
is
required.
A
simple
"
comparative
analysis"
is
incomplete
and
could
be
misleading.

Response:
As
the
preamble
states,
"
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"
69
FR
at
52567.
An
appraisal
may
be
useful
in
some
circumstances,
but
need
not
be
used
in
every
circumstance.

EPA
reminds
the
commenter
that
the
statutory
requirement
is
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
if
the
property
were
not
contaminated.
Although
the
Agency
sees
the
value
in
conducting
formal
assessments
and
appreciates
the
commenter's
concerns,
EPA
emphasizes
that
the
purpose
of
the
all
appropriate
inquiries
investigation
is
not
to
attain
an
exact
assessment
of
the
financial
value
of
the
property,
but
to
determine
whether
or
not
there
are
conditions
at
the
property
that
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
The
results
of
a
formal
appraisal
may
be
helpful
for
making
this
determination,
but
in
many
cases
not
essential.

EPA
notes
that
the
final
rule
does
not
dictate
how
the
prospective
property
owner
or
grantee
must
undertake
this
analysis.
This
type
of
comparison
has
been
included
in
the
statutory
provisions
governing
all
appropriate
inquiries
since
the
1986
SARA
amendments
to
CERCLA.
Today's
final
rule
does
nothing
to
alter
the
original
statutory
requirement
and
represents
no
change
from
current
practice.

Commenter
Organization
Name:
Johnson,
Noel
Comment
Number:
0446
Excerpt
Number:
1
Excerpt
Text:
The
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

The
valuation
of
such
properties
as
those
delt
with
in
these
cases
are
tremendously
complex.
Doing
away
with
the
requirement
to
have
a
properly
trained
and
experienced
consultant
value
a
557
parcel
in
favor
of
a
what
is
proposed
brings
the
real
estate
industry
into
dangerous
situation.
Please
reconsider
this
aspect
of
the
proposed
rule.

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).

Commenter
Organization
Name:
Brinegar,
Carl
Comment
Number:
0449
Excerpt
Number:
1
Excerpt
Text:
I
do
not
believe
that
the
congressional
mandate
for
comparison
of
fair
market
value
of
the
property
to
the
purchase
price
was
sufficiently
addressed
by
the
Negotiated
Rule
Making
Committee
and
in
the
proposed
rule.

Congress
required
that
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value.
Yet
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
opinion
of
market
value
by
a
trained,
independent,
competent
real
estate
appraiser.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
appraisers
and
a
majority
of
states,
including
Texas,
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
opinions
of
market
value
to
be
estimated
by
state
licensed
or
certified
appraisers.
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.

For
example,
I
am
a
Texas
Certified
Real
Estate
Appraiser
with
over
39
years
of
experience,
including
a
substantial
amount
of
experience
as
a
professional
witness
in
courts
of
law.
By
personal
experience,
I
am
an
expert
on
the
serious
errors
that
are
made
by
untrained
individuals
relying
on
raw
data
or
on
the
use
of
untrained
"
Experts"
in
real
estate
transactions,
and
the
losses
suffered
as
a
consequence
of
those
errors.

First,
the
use
of
raw
data
from
the
market,
with
no­­
or
limited­­
knowledge
of
its
origin
and
proper
use
by
one
with
no­­
or
limited­­
knowledge
of
good
research
and
appraisal
techniques,
and/
or
by
one
who
is
not
trained
to
understand
and
maintain
independence
from
the
transaction,
is
dangerous
to
all
involved
and
can
lead
to
significant
losses.
558
Second,
in
my
experience
"
Real
Estate
Experts"
that
have
not
been
required
by
any
agency
or
ruling
authority
to
acquire
or
demonstrate
knowledge
and
expertise
in
real
estate
"
Comparability
Analysis",
often
have
scarcely
enough
training
or
knowledge
to
be
anything
but
dangerous
to
themselves
and
those
they
represent.
This
is
the
stuff
of
which
lawsuits
are
made.

Finally,
who
is
a
better
qualified
as
a
"
Real
Estate
Expert"
than
a
trained,
qualified,
independent,
certified
or
licensed
real
estate
appraiser
that
has
proven
his
or
her
expertise
and
competence
to
state
licensing
authorities?

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).

Commenter
Organization
Name:
Sullivan,
Timothy
Comment
Number:
0451
Excerpt
Number:
1
Excerpt
Text:
I
am
concerned
that
the
Congressional
mandate
for
comparison
of
fair
market
value
of
the
property
to
the
purchase
price
was
not
sufficiently
addressed
by
the
Negotiated
Rule
Making
Committee
and
in
the
proposed
rule.

Congress
required
that
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value.
Yet
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

Market
value,
or
"
fair
market
value"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
opinion
of
market
value
by
a
competent
appraisal
professional.

You
go
to
great
lengths
to
define
who
is
competent
in
other
areas,
but
fail
to
define
the
appraiser
as
the
recognized
professional
in
estimating
market
value.

As
with
engineering,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
appraisers
and
a
majority
of
states
have
adopted
"
mandatory
appraiser
licensing"
requirements
that
require
opinions
of
market
value
to
be
estimated
by
licensed
or
certified
appraisers.
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).
559
Commenter
Organization
Name:
Moss,
JR
Comment
Number:
0452
Excerpt
Number:
1
Excerpt
Text:
Congress
required
that
a
component
of
All
Appropriate
Inquiry
(
AAI)
be
a
comparison
of
the
property's
sales
price
to
its
Fair
Market
Value.
Yet
EPA's
proposed
regulations
state
that
an
appraisal
need
not
be
utilized
and
that
the
market
value
can
be
estimated
by
comparison
of
similar
nearby
sales
or
by
consulting
a
real
estate
expert
familiar
with
properties
in
the
general
locality
who
may
provide
a
comparability
analysis.

Market
value,
or
"
fair
market
value,"
is
one
of
the
most
understood
and
recognized
legal
and
public
policy
terms
in
use
today.
I
am
not
aware
of
a
case
where
a
federal
agency
requires
the
consideration
of
market
value
yet
states
in
its
regulations
that
"
an
appraisal
need
not
be
utilized".
To
the
contrary,
most
federal
agencies
seek
to
promote
the
most
accurate
opinion
of
market
value
by
a
competent
appraisal
professional.

Similarly,
to
ensure
the
quality
of
compliance
with
public
policy,
all
state
governments
regulate
appraisers
and
a
majority
of
states
have
adopted
ômandatory
appraiser
licensingö
requirements
that
require
opinions
of
market
value
to
be
estimated
by
licensed
or
certified
appraisers.
In
these
states,
all
opinions
of
market
value
must
be
performed
by
a
licensed
or
certified
appraiser
and
in
compliance
with
the
Uniform
Standards
of
Professional
Appraisal
Practice
(
USPAP),
the
accepted
standards
of
the
appraisal
profession.

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).

Commenter
Organization
Name:
Moss,
JR
Comment
Number:
0452
Excerpt
Number:
2
Excerpt
Text:
The
Market
will
still
determine
the
value
of
the
property.
How
does
on
determine
the
market
value
with
a
knowledge
of
the
market
place
where
the
property
is
located.
How
do
you
tell
if
a
refurbished
house
was
once
a
meth
lab.
There
is
work
to
be
done
for
any
property
to
determined
market
value
and
appraisers
who
do
their
home
work
most
often
know
how
to
do
this.

Response:
At
the
onset
of
this
response
we
note
from
the
preamble
of
the
proposed
rule
that
"
§
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"
(
69
FR
52567).

The
comparison
is
made
between
the
purchase
price
and
the
fair
market
value
of
the
property,
assuming
that
the
property
is
not
contaminated.
This
means
that
the
comparison
can
take
place
560
at
any
time,
and
does
not
require
any
amount
of
contamination
to
be
detected.
The
purpose
of
this
comparison
is
to
look
at
the
difference
between
the
price
and
market
value
as
an
indicator
of
possible
contamination.
If
the
prices
are
significantly
different,
this
should
indicate
to
the
purchaser
or
grantee
that
additional
inquiry
should
be
done
if
liability
protection
is
desired.

Also,
please
see
response
to
comment
number
0440,
excerpt
2.

Commenter
Organization
Name:
Shaw,
James
Comment
Number:
0453
Excerpt
Number:
1
Excerpt
Text:
In
these
times,
low
ethical
business
practices
are
rampant
and
an
unbiased
opinion
as
rendered
by
a
professional
appraisal
is
more
crucial
than
ever.

Response:
Please
see
responses
to
comment
0440
(
excerpt
2)
and
comment
0441
(
excerpt
1).
561
3.9
Considering
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property
Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
1
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
NEW
­
3.7
­
Inclusion
of
specialized
knowledge
or
experience
NEW
­
3.8
­
Considering
the
relationship
of
the
purchase
price
to
the
value
of
the
property
Excerpt
Text:
I
would
like
to
comment
on
proposed
40
CFR
312.22.
40
CFR
312.21
defines
the
results
of
an
inquiry
by
an
environmental
professional.
40
CFR
312.22
defines
four
additional
requirements
of
an
all
appropriate
inquiry
and
requires
that
this
information
must
be
provided
to
the
environmental
professional
responsible
for
the
inquiry.
The
mandatory
provision
of
these
criteria
is
inappropriate.
The
four
criteria
of
an
all
appropriate
inquiry
mentioned
in
proposed
40
CFR
312.22
do
not
require
the
judgement
of
an
environmental
professional
to
interpret.

I
recommend
the
following
change
in
40
CFR
312.22.
312.11
Additional
Inquiries
(
a)­
Persons
identified
under
312.1(
b)
may
provide
the
following
information
to
the
environmental
responsible
for
conducting
the
activities
listed
in
312.21.

Response:
The
Agency
agrees
with
the
commenter.
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
the
results
of
inquiries
for
which
he
or
she
is
responsible
to
the
environmental
professional.

Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
4
Excerpt
Text:
The
requirement
of
proposed
312.22
(
a)(
4),
providing
"
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property"
is
implicit
in
the
"
all
appropriate
inquiries"
rule.
The
regulations
require
the
environmental
professional
to
use
their
judgement.
Clearly,
the
consideration
of
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property
is
well
within
the
requirements
of
proposed
312.21.
This
requirement,
while
mandated
by
the
statute,
has
no
practical
impact
on
the
report
generated
by
an
environmental
professional.
562
Response:
The
Agency
agrees
with
the
commenter.
The
final
rule
does
not
require
the
prospective
landowner
or
grantee
to
provide
the
results
of
inquiries
for
which
he
or
she
is
responsible
to
the
environmental
professional.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
14
Excerpt
Text:
Requirements
for
Commonly
Known
or
Reasonably
Ascertainable
Information.
I
agree
that
this
is
an
area
to
be
included
but
my
experience
is
that
it
depends
on
whom
one
interviews,
even
within,
for
example,
a
city
planning
department.
Asking
a
counter
clerk
about
a
property
is
not
the
same
as
asking
a
senior
planner.
A
public
works
official
may
be
familiar
with
a
property
but
a
planner
may
not.

Response:
Commonly
known
or
reasonably
ascertainable
information
about
a
property
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.
In
many
cases,
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
and
separate
or
distinct
efforts
to
collect
the
information
may
not
be
necessary
The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources,
based
upon
the
professional
judgment
of
the
environmental
professional
and
the
prospective
landowner
or
grantee,
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
21
563
Excerpt
Text:
312.21(
b):
change
"(
commonly
known
or
reasonably
attainable ")
to
"(
commonly
known
and
reasonably
attainable ").

Response:
In
the
final
rule,
EPA
retains
the
statutory
language
for
the
criterion.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
10
Excerpt
Text:
­
ii.
Proposed
§
312.30
"
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property"
imposes
extraordinarily
open­
ended
search
requirements
on
developers
and
invites
courtroom
second
guessing.

Proposed
§
312.30
requires
that
"[
t]
hroughout
the
inquiries,"
purchasers
"
must
take
into
account
commonly
known
or
reasonably
ascertainable
information
within
the
local
community
about
the
subject
property."
Sources
of
commonly
known
information
are
defined
to
include
unenumerated
"
others"
with
knowledge
of
the
property,
unspecified
"
other"
sources
of
information,
as
well
as
websites,
local
libraries,
and
newspapers.
The
requirement
appears
to
make
the
purchaser
responsible
for
any
information
about
the
property
that
might
exist
anywhere
in
the
community.
Although
generally
qualified
by
constraints
such
as
reasonable
time
and
cost,
who
is
to
say
that
one
more
phone
call
to
the
local
librarian
shouldn't
have
been
made?
In
short,
it
is
an
open
invitation
to
courtroom
second
guessing.

The
committee
may
have
believed
that
this
section
assigning
liability
to
the
purchaser
for
commonly
known
information
is
required
by
the
Brownfields
Revitalization
Act,
which
does
include
the
statutory
criteria
"
commonly
known
or
reasonably
ascertainable
information."
42
U.
S.
C.
§
9601(
B)(
iii)(
IX).
However,
like
the
"
relationship
of
purchase
price"
element
discussed
above,
this
element
of
All
Appropriate
Inquiry
remains
unchanged
since
1986
and
to
the
extent
that
EPA
may
believe
that
it
is
a
statutorily
required
element
of
future
All
Appropriate
Inquiries,
it
is
already
directly
addressed
by
ASTM
E1527.
ASTM
E1527
properly
limits
"
reasonably
ascertainable"
records
to
"
standard
sources."
ASTM
E1527­
00
§
7.1.4.
There
is
no
open
ended
catchall
requirement
to
scour
the
community.
For
example,
the
historical
use
inquiry
ends
with
the
enumerated
standard
historical
sources:
"
Whatever
history
of
previous
uses
is
derived
from
checking
the
standard
historical
sources
specified
[
herein].
.
.
shall
be
deemed
sufficient
historical
use
information
to
comply
with
this
practice."
ASTM
E1527­
00
§
7.3.2.3.
Moreover,
ASTM
E1527
explicitly
relieves
purchasers
of
the
responsibility
to
consult
"
other
historical
sources,"
such
as
newspaper
archives
and
other
miscellaneous
sources.
ASTM
E1527
§
7.3.2.3.

We
hope
you
will
reconsider,
and
decide,
in
light
of
the
information
presented
here
that
this
section
of
the
new
rule
should
be
deleted.
564
Response:
The
final
rule
retains
the
proposed
provisions
requiring
that
prospective
landowners
and
environmental
professionals
consider
commonly
known
or
reasonably
ascertainable
information
about
a
property
when
conducting
all
appropriate
inquiries.
This
provision
has
been
part
of
the
all
appropriate
inquiries
requirements
under
CERCLA
since
the
1986
SARA
amendments.
The
final
rule
points
out
that
this
information
may
not
have
to
be
collected
independently
if
such
information
is
gathered
during
the
course
of
conducting
the
other
information
collection
activities
included
in
the
rule
and
collected
in
compliance
with
the
objectives
and
performance
factors.
The
requirement
is
not
so
much
"
open
ended"
as
it
is
a
condition
to
not
miss
or
ignore
the
obvious
information
or
easily
attained
information
that
may
be
well
known
throughout
a
community
in
which
a
property
is
located.

Commonly
known
or
reasonably
ascertainable
information
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.
In
many
cases,
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
and
separate
or
distinct
efforts
to
collect
the
information
may
not
be
necessary.
Information
about
a
property,
including
its
ownership
and
uses,
that
is
commonly
known
or
reasonably
attainable
within
the
community
or
neighborhood
in
which
a
property
is
located
may
be
valuable
to
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
Such
information,
if
not
collected
during
the
course
of
collecting
other
information
necessary
to
complete
the
all
appropriate
inquiries
investigation,
may
be
obtained
by
interviewing
community
officials
and
other
residents
of
the
locality.
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
(
i.
e.,
reasonably
attainable)
sources
of
commonly
known
information
on
uses
of
a
property
and
activities
conducted
at
a
property,
particularly
in
the
case
of
abandoned
properties.

The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).
565
Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
10
Excerpt
Text:
Proposed
requirement
for
Commonly
Known
or
Reasonably
Ascertainable
Information.

a)
Page
#
52580
b)
View:
This
proposal
is
supported,
and
should
be
included
into
the
AAI
Phase
I
performance
standards.
Information
that
may
be
commonly
known
to
individuals
about
the
property
(
current
and
former
owners,
employees,
and/
or
local
government
officials),
may
not
be
commonly
know
to
others.
Specifically
this
information
may
not
be
available
through
a
standard
government
records
review,
site
inspection
and
historical
research.
The
Interview
Process
should
include
questioning
such
individuals
of
Commonly
Known
or
Reasonably
Ascertainable
Information.

c)
Assumption:
Certain
property
conditions
from
past
operations
and
use
of
the
site
or
surrounding
area
may
be
relevant
to
persons
and
government
officials
familiar
with
the
site/
area
that
may
not
be
obvious
to
the
EP
unless
the
follow
up
on
all
commonly
known
or
reasonably
ascertainable
information.
Too
often
the
consultant
tries
to
gain
pertinent
information
only
once,
does
not
get
an
answer;
therefore,
it
is
excluded
from
the
report.

d)
Burden:
The
EP
may
have
to
follow
up
more
than
once
with
persons
that
may
have
the
relevant
information,
which
may
take
longer
than
expected.

Response:
Please
see
response
to
comment
number
0354,
excerpt
10.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
13
Other
Sections:
NEW
­
3.7
­
Inclusion
of
specialized
knowledge
or
experience
NEW
­
3.10
­
Considering
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property
Excerpt
Text:
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"

Please
consider
including
the
need
to
define
the
term
"
Persons"
in
§
312.1
(
b)(
1),
should
be
further
defined,
either
in
the
preamble
or
in
§
312.10
Definitions.
Under
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"
should
not
include
every
individual
in
a
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
Tribe,
municipality,
commission,
political
subdivision
of
a
State,
or
any
interstate
body,
but
should
be
limited
to
those
persons
directly
involved
with
conducting
the
AAI
for
the
purpose
of
§
312.28,
§
312.30
and
§
312.31.
For
example,
specialized
knowledge
or
566
experience
cannot
mean
the
specialized
knowledge
or
experience
of
every
employee
in
a
corporation
of
25,000
employees.
Clarifying
language
and
instructive
examples
in
the
preamble
will
ensure
that
the
applicability
of
these
sections
is
practical.

Response:
The
term
"
person"
is
defined
in
Section
101(
21)
of
CERCLA.
"
Person"
means
an
individual,
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
municipality,
commission,
political
subdivision
of
a
State,
or
any
interstate
body.
Since
firms,
corporations,
associations,
partnerships,
etc.
may
purchase
potentially
contaminated
property
and
may
want
to
attain
protection
from
CERCLA
liability,
as
provided
under
the
statute,
EPA
is
uncertain
why
the
commenter
is
suggesting
that
the
term
person
be
limited
or
changed
from
its
common
legal
definition
and
the
definition
provided
under
the
CERCLA
statute.

Commenter
Organization
Name:
Small,
Arthur
Comment
Number:
0424
Excerpt
Number:
2
Other
Sections:
NEW
­
4
­
Comments
on
the
Economic
Impact
Analysis
Excerpt
Text:
It
is
through
this
prism
that
we
should
examine
the
proposed
section
312.30.
This
section
requires,
as
a
qualifying
condition
for
the
innocent
landowner
defense,
that
a
prospective
buyer
investigate
"
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property."
In
particular,
it
is
through
this
prism
that
we
should
examine
the
open­
ended
search
requirements
embodied
in
the
new
standard.
As
has
been
noted
elsewhere,
these
new
open­
ended
search
requirements
effectively
compel
potential
buyers
to
search
through
a
potentially
large
and
openended
set
of
possible
information
sources.
These
include
unnamed
"
other"
persons
and
unenumerated
"
other"
sources.

Should
these
standards
in
fact
be
open­
ended?

First
I
wish
to
clarify
a
conceptual
point:
the
decision
to
include
an
open­
ended
search
requirement
should
be
judged
on
the
basis
of
marginal
costs
and
marginal
benefits.
The
key
questions
here
concern
a
calculation
at
the
margin.
How
much
additional
environmental
or
economic
benefits
accrue
to
society
(
if
any)
by
virtue
of
making
the
standard
open­
ended,
as
opposed
to
a
closed­
ended
standard?
What
are
the
likely
additional
economic
and
environmental
costs
(
if
any)
along
this
margin?
Is
this
marginal
increase
in
search
requirements
justified
by
benefits
that
can
reasonably
be
anticipated?

In
this
vein
I
wish
to
take
issue
with
some
of
the
findings
of
the
cost­
benefit
analysis
performed
by
ICF
Consulting.
One
of
the
authors'
principle
findings
is
an
estimate
that
the
new
AAI
regulations
will
increase
the
transaction
costs
of
real
estate
sales
by
some
$
41­
47
per
transaction.
This
figure
is
associated
with
higher
costs
of
Phase
I
site
assessment
and
document
search.
ICF's
figure
may
in
fact
be
correct
(
although
I
do
have
quibbles
with
their
data
collection
protocols
[
Footnote:
It
raises
at
least
one
eyebrow
that
ICF
bases
this
estimate
on
an
internal
survey
of
its
567
own
staff.
By
contrast,
EDR
reports
an
estimated
increase
closer
to
$
200
per
transaction,
based
on
a
survey
of
over
500
environmental
professionals
from
multiple
firms
who
attended
conferences
in
nine
cities
earlier
this
year.
See
Environmental
Site
Assessment
Report
by
EDR
Business
Information
Services,
July
2004.].).
But
is
this
the
right
question?

I
believe
it
is
not
­
or
at
least,
it
is
not
the
central
question.
The
most
important
effect
of
making
these
standards
open­
ended
is
probably
not
how
they
increase
the
costs
of
those
transactions
that
eventually
go
through.
The
more
important
effect
of
the
new
standards
concerns
the
possibility
that
they
may
discourage
some
otherwise­
viable
transactions
from
being
undertaken
at
all.
Transactions
may
be
discouraged
not
so
much
because
of
the
small
increase
in
transaction
costs,
but
because
of
the
potentially
large
increase
in
residual
liability.

As
experts
on
the
subject
of
brownfields,
I
expect
you
don't
need
to
be
convinced
that
openended
liabilities
have
been
shown
to
have
real
and
negative
impacts
on
incentives
to
undertake
projects.

Response:
The
final
rule
retains
the
proposed
provisions
requiring
that
prospective
landowners
and
environmental
professionals
consider
commonly
known
or
reasonably
ascertainable
information
about
a
property
when
conducting
all
appropriate
inquiries.
This
provision
has
been
part
of
the
all
appropriate
inquiries
requirements
under
CERCLA
since
the
1986
SARA
amendments.
The
final
rule
does
not
change
this
provision.
The
final
rule
does
point
out
that
this
information
may
not
have
to
be
collected
independently
if
such
information
is
gathered
during
the
course
of
conducting
the
other
information
collection
activities
included
in
the
rule
and
collected
in
compliance
with
the
objectives
and
performance
factors.
The
requirement
is
not
so
much
"
open
ended"
as
it
is
a
condition
to
not
miss
or
ignore
the
obvious
information
or
easily
attained
information
that
may
be
well
known
throughout
a
community
in
which
a
property
is
located.

Commonly
known
or
reasonably
ascertainable
information
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.
In
many
cases,
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
and
separate
or
distinct
efforts
to
collect
the
information
may
not
be
necessary.
Information
about
a
property,
including
its
ownership
and
uses,
that
is
commonly
known
or
reasonably
attainable
within
the
community
or
neighborhood
in
which
a
property
is
located
may
be
valuable
to
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
Such
information,
if
not
collected
during
the
course
of
collecting
other
information
necessary
to
complete
the
all
appropriate
inquiries
investigation,
may
be
obtained
by
interviewing
community
officials
and
other
residents
of
the
locality.
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
(
i.
e.,
reasonably
attainable)
sources
of
commonly
known
information
on
uses
of
a
property
and
activities
conducted
at
a
property,
particularly
in
the
case
of
abandoned
properties.
568
The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).
569
3.9.1
Commonly
Known
or
Reasonably
Ascertainable
Information
Should
Not
Be
Limited
to
Information
Available
in
the
Local
Community
Commenter
Organization
Name:
Tweedale,
Tony
Comment
Number:
0045
Excerpt
Number:
1
Excerpt
Text:
Proposed
40
CFR
Sec.
312.30,
Requirements
to
determine
Commnly
Known
or
Reasonably
Ascertainable
Information.
Why
limit
this
requirement
to
locally
available
information
(
eg
the
preamble
says
that
this
information
is
usually
available
in
the
local
community.
In
fact
many
real
estate
transactions
are
between
far­
flung
national
or
international
parties;
who
may
have
"
commonly
known/
ascertainable
information"
about
contamination
at
the
property
being
transacted.

Response:
The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).
570
3.9.2
The
Agency
Should
Provide
Additional
Guidance
Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
15
Other
Sections:
NEW
­
3.10
­
Considering
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property
Excerpt
Text:
The
proposed
requirement
for
commonly
known
or
reasonably
ascertainable
information
about
the
property.

The
proposed
requirement
for
the
degree
of
obviousness
or
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
detect
the
contamination
by
appropriate
investigation.

These
items,
as
pointed
out,
are
carryovers
from
prior
legislation.
They
have
historically
been
at
the
core
of
the
ASTM
practice
that
has
become
standard
commercial
practice.
In
the
AAI
there
is
not
sufficient
detail
to
implement
the
guidance.
Making
reference
to
the
appropriate
ASTM
document
easily
solves
this.

Response:
EPA
provides
some
guidance
on
the
collection
of
this
information
in
the
preamble
to
the
final
rule.
The
ASTM
E1527­
2000
standard
may
provide
additional
guidance.
Also,
case
law
may
provide
guidance
given
that
the
Courts
hold
the
ultimate
responsibility
for
interpreting
the
statutory
requirements.

The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Regarding
the
requirement
to
include
within
the
all
appropriate
inquiries
the
degree
of
obviousness
or
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
571
detect
the
contamination
by
appropriate
investigation,
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
a
release
or
threatened
release
of
hazardous
substances
(
or
other
pollutants,
contaminants,
petroleum
or
petroleum
products,
and
controlled
substances)
on,
at,
in,
or
to
the
property.
In
addition,
the
rule
requires
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.
The
final
rule
also
retains
the
proposed
requirement
that
the
environmental
professional
include
as
part
of
the
results
of
his
or
her
inquiry
an
opinion
regarding
additional
appropriate
investigation,
if
any
may
be
necessary.

We
interpret
the
statutory
criterion
to
require
consideration
of
information
already
obtained
during
the
conduct
of
all
appropriate
inquiries
investigation
and
not
as
a
requirement
to
collect
additional
information.
We
do
not
agree
with
commenters
who
asserted
that
the
criterion
is
open­
ended.
In
fact,
we
see
this
criterion
as
providing
direction
on
how
all
of
the
information
collected
while
carrying
out
the
other
criteria
and
regulatory
requirements
must
be
viewed
comprehensively.
After
collecting
and
considering
all
the
information
required
to
comply
with
the
rule's
objectives
and
performance
standards,
all
the
information
should
be
considered
in
total
to
determine
whether
or
not
there
are
indications
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
property.
In
addition,
the
environmental
professional
should
provide
an
opinion
regarding
whether
or
not
additional
investigation
is
necessary
to
detect
potential
contamination
at
the
site,
if
in
his
or
her
opinion
there
are
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

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
rule
changes
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986.
Case
law
relevant
to
this
criterion
indicates
that
defendants
may
not
be
able
to
claim
an
innocent
landowner
defense
if
a
preponderance
of
evidence
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.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
20
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Section
312.30,
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property,
is
not
workable
in
its
current
form.
The
implication
to
interview
owners
and
occupants
of
adjoining
property
poses
the
same
confidentiality
and
security
law
issues
as
mentioned
previously
about
interviewing
past
owners,
occupants,
etc.
The
suggestion
that
the
EP
should
review
or
consult
"
Others
with
knowledge
of
the
subject
property;
and
other
sources
of
572
information
[
e.
g.,
newspapers,
websites,
community
organizations,
local
libraries,
and
historical
societies]"
is
too
vague
in
the
absence
of
some
further
guidance.
ASTM
Committee
E­
50
addressed
this
with
practically
reviewable
and
likely
to
be
useful
limitations.
The
sources
cited
in
the
example
cannot
be
reviewed
on
the
property­
by­
property
basis.
For
example,
does
the
EPA
contemplate
microfilms
of
newspapers
be
searched
back
to
the
beginning
of
the
collection
for
each
property
having
some
form
of
a
data
gap?
The
Economic
Impact
Analysis
suggests
no
further
costs
will
be
incurred
by
the
proposed
AAI
rules
than
with
E
1527­
00.
Thus,
the
Analysis
is
clearly
not
consistent
with
the
Proposed
Rules
and,
therefore,
understates
the
impact
of
the
Proposed
Rules.
R&
W
requests
that
the
EPA
reform
the
Proposed
Rules
to
include
specific
limitations
similar
to
E
1527­
00.

Response:
The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
24
Excerpt
Text:
COMMONLY
KNOWN
OR
REASONABLY
ASCERTAINABLE
INFORMATION
1)
Please
provide
more
examples
of
the
types
of
information
included
in
the
"
commonly
known
or
reasonably
ascertainable"
requirement,
and
how
to
obtain
this
information.

Response:
The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
573
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
5
Excerpt
Text:
For
clarification,
it
is
recommended
that
the
Agency
define
in
§
312.10
the
terms
"
publicly
available"
and
"
reasonable
time
and
cost
constraints"
as
referenced
in
§
312.20(
e)(
1)
and
the
terms
"
commonly
known"
and
"
reasonably
ascertainable"
as
referenced
in
§
312.30.
It
would
be
beneficial
to
the
regulated
community
to
have
these
terms
defined
in
the
regulation
to
be
readily
available
after
the
rule
is
finalized.

Response:
The
final
rule
retains
the
proposed
provisions
requiring
that
prospective
landowners
and
environmental
professionals
consider
commonly
known
or
reasonably
ascertainable
information
about
a
property
when
conducting
all
appropriate
inquiries.
This
provision
has
been
part
of
the
all
appropriate
inquiries
requirements
under
CERCLA
since
the
1986
SARA
amendments.
The
final
rule
does
not
change
this
provision.
The
final
rule
does
point
out
that
this
information
may
not
have
to
be
collected
independently
if
such
information
is
gathered
during
the
course
of
conducting
the
other
information
collection
activities
included
in
the
rule
and
collected
in
compliance
with
the
objectives
and
performance
factors.
The
requirement
is
not
so
much
"
open
ended"
as
it
is
a
condition
to
not
miss
or
ignore
the
obvious
information
or
easily
attained
information
that
may
be
well
known
throughout
a
community
in
which
a
property
is
located.
EPA
is
comfortable
with
the
terms
taking
on
their
plain
English
definitions
and
does
not
believe
that
further
defining
the
terms
in
the
regulations
will
add
meaningful
guidance.

Commonly
known
or
reasonably
ascertainable
information
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.
In
many
cases,
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
and
separate
or
distinct
efforts
to
collect
the
information
may
not
be
necessary.
Information
about
a
property,
including
its
ownership
and
uses,
that
is
commonly
known
or
reasonably
attainable
within
the
community
or
neighborhood
in
which
a
property
is
located
may
be
valuable
to
identifying
conditions
indicative
of
releases
or
threatened
releases
at
the
subject
property.
Such
information,
if
not
collected
during
the
course
of
collecting
other
information
necessary
to
complete
the
all
appropriate
574
inquiries
investigation,
may
be
obtained
by
interviewing
community
officials
and
other
residents
of
the
locality.
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
(
i.
e.,
reasonably
attainable)
sources
of
commonly
known
information
on
uses
of
a
property
and
activities
conducted
at
a
property,
particularly
in
the
case
of
abandoned
properties.

The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
18
Excerpt
Text:
­
The
proposed
requirements
for
commonly
known
or
reasonably
ascertainable
information
about
the
property.

­­
While
Intertox
supports
the
use
of
commonly
known
and
reasonably
ascertainable
information,
they
are
not
one
and
the
same
and
we
suggest
a
more
reasonable
definition
be
included
in
the
final
regulation.
Indeed,
the
phrase
"
commonly
known"
can
be
construed
to
mean
anecdotal
rather
than
documented
information.
Also,
reasonably
obtainable
information
is
different
from
commonly
known
information,
meaning,
that
which
is
reasonably
obtainable
refers
to
the
ability
to
obtain
information
easily,
not
its
value
or
content.

Response:
Please
see
response
to
comment
number
0373,
excerpt
5.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
8
575
Excerpt
Text:
Proposed
Rule
§
312.30
(
a­
b)
includes
a
"
catch­
all"
category
that
requires
both
the
EP
and
the
User
to
consider
commonly
known
or
reasonably
ascertainable
information
about
the
property,
as
well
as
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination.
Proposed
Rule
§
312.30(
c)
requires
that,
if
any
concerns
fall
into
this
category,
then
the
User
and/
or
EP
must
gather
additional
information
"
to
the
extent
necessary"
to
satisfy
the
performance
objectives
by
interviewing
neighboring
property
owners,
government
officials
and
other
sources
of
information.
Absent
further
guidance,
compliance
with
this
aspect
of
the
Rule
may
be
difficult
to
assess
and
even
more
difficult
to
document,
especially
where
the
User
and
EP
are
not
familiar
with
past
and
current
local
gossip.

USEPA
should
take
this
opportunity
to
establish
clear
regulations
and
reduce
the
ambiguity
in
this
catch­
all
category,
despite
the
Negotiated
Rulemaking
Committee's
reluctance
to
do
so.
In
light
of
USEPA's
clear
direction
from
Congress
to
make
rules
for
AAI,
it
is
inappropriate
for
USEPA
intentionally
to
avoid
this
issue
and
to
leave
these
terms
for
the
courts
to
define.
Moreover,
by
"
punting"
this
issue
to
the
courts,
USEPA
is
passing
up
the
opportunity
to
provide
a
consistent,
uniform
standard
and
is
instead
inviting
different
judicial
interpretations
by
different
jurisdictions.
Such
an
approach
is
at
variance
with
the
purpose
of
the
AAI
Rule,
which
is
to
establish
both
clear
inquiry
obligations
and
a
safe
harbor
for
those
who
follow
them.

Response:
Please
see
response
to
comment
number
0256,
excerpt
15.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
7
Excerpt
Text:
The
term
reasonably
ascertainable
should
be
defined.
The
definition
should
include
a
time
period,
after
which
documents/
interviews
are
judged
not
to
be
reasonably
ascertainable.
While
not
included
in
the
current
rule,
the
term
practically
reviewable
should
be
added,
defined
and
referenced
in
Parts
312.24,
312.25,
312.26
and
312.30.

Response:
Please
see
response
to
comment
number
0373,
excerpt
5.
576
3.9.3
Commonly
Known
or
Reasonably
Ascertainable
Information
Should
Be
Limited
to
State
or
Local
Governments
Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
14
Excerpt
Text:
312.30
Commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
sources
for
commonly
known
information
should
be
limited
to
the
local
and
state
government.
Information
from
newspapers,
websites,
and
neighbors
are
unreliable
and
vulnerable
to
rumors.
Information
from
these
sources
may
be
"
hear­
say"
or
sensationalized.
All
appropriate
inquiry
reports
become
technical
documents
to
support
a
legal
argument.
Therefore,
sources
of
information
that
are
potentially
"
hear­
say"
or
unreliable
should
be
omitted.

SOURCES
OF
COMMONLY
KNOWN
INFORMATION
SHOULD
BE
LIMITED
TO
"
LOCAL
AND
STATE
GOVERNMENTS."

Response:
EPA
disagrees
with
the
commenter.
Commonly
known
or
reasonably
ascertainable
information
may
be
available
from
sources
other
than
local
and
state
governments.
EPA
sees
no
reason
to
limit
the
collection
of
such
information
in
this
manner.

The
final
rule
retains
the
proposed
provisions
requiring
that
prospective
landowners
and
environmental
professionals
consider
commonly
known
or
reasonably
ascertainable
information
about
a
property
when
conducting
all
appropriate
inquiries.
This
provision
has
been
part
of
the
all
appropriate
inquiries
requirements
under
CERCLA
since
the
1986
SARA
amendments.
The
final
rule
does
not
change
this
provision.
The
final
rule
does
point
out
that
this
information
may
not
have
to
be
collected
independently
if
such
information
is
gathered
during
the
course
of
conducting
the
other
information
collection
activities
included
in
the
rule
and
collected
in
compliance
with
the
objectives
and
performance
factors.
The
requirement
is
not
so
much
"
open
ended"
as
it
is
a
condition
to
not
miss
or
ignore
the
obvious
information
or
easily
attained
information
that
may
be
well
known
throughout
a
community
in
which
a
property
is
located.
EPA
is
comfortable
with
the
terms
taking
on
their
plain
English
definitions
and
does
not
believe
that
further
defining
the
terms
in
the
regulations
will
add
meaningful
guidance.

Commonly
known
or
reasonably
ascertainable
information
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.
In
many
cases,
this
information
may
be
incidental
to
other
information
collected
during
the
inquiries,
and
separate
or
distinct
efforts
to
collect
the
information
may
not
be
necessary.
Information
about
a
property,
including
its
ownership
and
uses,
that
is
commonly
known
or
reasonably
attainable
within
the
community
or
neighborhood
in
which
a
property
is
located
may
be
valuable
to
identifying
conditions
indicative
577
of
releases
or
threatened
releases
at
the
subject
property.
Such
information,
if
not
collected
during
the
course
of
collecting
other
information
necessary
to
complete
the
all
appropriate
inquiries
investigation,
may
be
obtained
by
interviewing
community
officials
and
other
residents
of
the
locality.
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
(
i.
e.,
reasonably
attainable)
sources
of
commonly
known
information
on
uses
of
a
property
and
activities
conducted
at
a
property,
particularly
in
the
case
of
abandoned
properties.

The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
4
Excerpt
Text:
­
Proposed
§
312.30
"
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property"
Imposes
Extraordinarily
Open­
Ended
Search
Requirements
On
Prospective
Purchasers
and
Invites
Courtroom
Second
Guessing
Proposed
§
312.30
requires
that
"[
throughout
the
inquiries,"
purchasers
"
must
take
into
account
commonly
known
or
reasonably
ascertainable
information
within
the
local
community
about
the
subject
property."
Sources
of
commonly
known
information
are
defined
to
include
unenumerated
"
others"
with
knowledge
of
the
property,
unspecified
"
other"
sources
of
information,
as
well
as
websites,
local
libraries,
and
newspapers.
The
requirement
appears
to
make
the
purchaser
responsible
for
any
information
about
the
property
that
might
exist
anywhere
in
the
community.
Although
generally
qualified
by
constraints
such
as
reasonable
time
and
cost,
given
the
performance
based
approach
of
the
new
rule
who
is
to
say
that
one
more
phone
call
to
the
local
librarian
shouldn't
have
been
made?
In
short,
it
is
an
open
invitation
to
courtroom
second
guessing.
578
The
rulemaking
committee
may
believe
that
this
section
assigning
liability
to
the
purchaser
for
commonly
known
information
is
required
by
the
Brownfields
Act
of
2002,
which
does
recite
the
phrase
"
commonly
known
or
reasonably
ascertainable
information."
However,
this
element
of
All
Appropriate
Inquiry
remains
unchanged
since
1986
and
to
the
extent
that
it
is
a
statutorily
required
element
of
future
All
Appropriate
Inquiries,
it
is
already
covered
by
ASTM
El
527.
ASTM
El527
properly
limits
"
reasonably
ascertainable"
records
to
"
standard
sources."
ASTM
El527­
00
§
7.1.4.
There
is
no
open
ended
catch­
all
requirement
to
scour
the
community.
For
example,
the
historical
use
inquiry
ends
with
the
enumerated
standard
historical
sources:
"
Whatever
history
of
previous
uses
is
derived
from
checking
the
standard
historical
sources
specified
[
herein].
.
.
shall
be
deemed
sufficient
historical
use
information
to
comply
with
this
practice."
ASTM
E1527­
00
§
7.3.2.3.
Moreover,
ASTM
E1527
explicitly
relieves
purchasers
of
the
responsibility
to
consult
"
other
historical
sources,"
such
as
newspaper
archives
and
other
miscellaneous
sources.
ASTM
El527
§
7.3.2.3.

Response:
Please
see
response
to
comment
number
0292,
excerpt
14.

Commenter
Organization
Name:
Eden
Housing
Comment
Number:
0380
Excerpt
Number:
5
Excerpt
Text:
Proposed
§
312.30
"
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property"
Imposes
Extraordinarily
Open­
Ended
Search
Requirements
On
Prospective
Purchasers
and
Invites
Courtroom
Second
Guessing
Proposed
§
312.30
requires
that
"[
t]
hroughout
the
inquiries,"
purchasers"
must
take
into
account
commonly
known
or
reasonably
ascertainable
information
within
the
local
community
about
the
subject
property."
Sources
of
commonly
known
information
are
defined
to
include
unenumerated
"
others"
with
knowledge
of
the
property,
unspecified
"
other"
sources
of
information,
as
well
as
websites,
local
libraries,
and
newspapers.
The
requirement
appears
to
make
the
purchaser
responsible
for
any
information
about
the
property
that
might
exist
anywhere
in
the
community.
Although
generally
qualified
by
constraints
such
as
reasonable
time
and
cost,
given
the
performance­
based
approach
of
the
new
rule,
who
is
to
say
that
one
more
phone
call
to
the
local
librarian
shouldn't
have
been
made?
In
short,
it
is
an
open
invitation
to
courtroom
second
guessing.

The
rulemaking
committee
may
believe
that
this
section
assigning
liability
to
the
purchaser
for
commonly
known
information
is
required
by
the
Brownfields
Act
of
2002,
which
does
recite
the
phrase
"
commonly
known
or
reasonably
ascertainable
information."
However,
this
element
of
All
Appropriate
Inquiry
remains
unchanged
since
1986
and
to
the
extent
that
it
is
a
statutorily
required
element
of
future
All
Appropriate
Inquiries,
it
is
already
covered
by
ASTM
E1527.
ASTM
E1527
properly
limits
"
reasonably
ascertainable"
records
to
"
standard
sources."
ASTM
E1527­
00
§
7.1.4.
There
is
no
open
ended
catch­
all
requirement
to
scour
the
community.
For
example,
the
historical
use
inquiry
ends
with
the
enumerated
standard
historical
sources:
579
"
Whatever
history
of
previous
uses
is
derived
from
checking
the
standard
historical
sources
specified
[
herein].
.
.
shall
be
deemed
sufficient
historical
use
information
to
comply
with
this
practice."
ASTM
E1527­
00
§
7.3.2.3.
Moreover,
ASTM
E1527
explicitly
relieves
purchasers
of
the
responsibility
to
consult
"
other
historical
sources,"
such
as
newspaper
archives
and
other
miscellaneous
sources.
ASTM
E1527
§
7.3.2.3.

At
the
former
plant
nursery
site,
Eden
and
its
development
partner
Community
Housing
Development
Corporation
of
North
Richmond
have
been
meeting
regularly
with
the
local
neighborhood
association.
The
City
of
Richmond
relies
on
this
group's
advice
on
local
land
use
and
funding
decisions.
We
have
discussed
the
environmental
investigation
performed
to
date
and
have
shared
our
proposed
cleanup
plan
with
this
group.
No
one
in
the
group
has
provided
us
with
new
information
about
the
subject
property.
Someone
in
the
community
may
know
something
we
don't
know,
but
it
is
impossible
for
us
to
say.
We
will
never
be
able
to
talk
to
everyone
who
lives
or
lived
in
the
community.
It
would
be
unreasonable
and
unfair
to
expect
us
to
do
so.

Response:
Please
see
response
to
comment
number
0292,
excerpt
14.
580
3.10
Considering
the
Degree
of
Obviousness
of
the
Presence
or
Likely
Presence
of
Contamination
at
the
Property
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
9
Excerpt
Text:
Sec.
312.31(
b)
says
that
"
The
inquiry
of
the
environmental
professional
should
include
an
opinion
regarding
additional
appropriate
investigation,
if
any."
Read:
sampling.
This
is
an
open
invitation
to
EPs
to
move
on
to
sampling.
There
are
so
many
costly
and
time­
consuming
investigations
an
EP
has
to
do
to
meet
"
all
appropriate
inquiry"
that
the
only
way
to
make
sure
the
requirements
of
the
regulation
are
satisfied
is
by
sampling.
As
a
practical
matter,
on
small
parcels,
the
wise
developer
would
be
well
advised
to
skip
the
historic
search
back
to
the
dawn
of
civilization,
give
up
the
effort
to
track
down
former
owners
running
from
their
environmental,
or
tax
or
whatever
responsibility,
abandon
the
search
through
government
records,
and
just
do
a
thorough
sampling
for
reasonably
expected
contaminants:
the
eight
RCRA
metals,
petroleum
compounds,
and
any
specific
chemicals
an
intelligent,
but
not
exhaustive,
investigation
suggests.

Response:
The
preamble
to
the
proposed
rule
states,
"
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."
69
FR
at
52560.
At
times
sampling
may
be
appropriate,
however
the
rule
does
not
require
that
sampling
be
conducted.
Given
that
a
property
owner's
ability
to
retain
liability
protection
may
hinge
on
his
or
her
ability
to
comply
with
the
statutorily
imposed
"
continuing
obligations,"
including
the
requirements
to
undertake
appropriate
care
and
stop
on­
going
releases,
EPA
believes
that
it
is
very
important
the
results
of
the
all
appropriate
inquiries
investigation
include
include
an
opinion
regarding
additional
appropriate
investigation,
if
any.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
15
Other
Sections:
NEW
­
3.9.2
­
The
Agency
should
provide
additional
guidance
Excerpt
Text:
The
proposed
requirement
for
commonly
known
or
reasonably
ascertainable
information
about
the
property.

The
proposed
requirement
for
the
degree
of
obviousness
or
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
detect
the
contamination
by
appropriate
investigation.

These
items,
as
pointed
out,
are
carryovers
from
prior
legislation.
They
have
historically
been
at
581
the
core
of
the
ASTM
practice
that
has
become
standard
commercial
practice.
In
the
AAI
there
is
not
sufficient
detail
to
implement
the
guidance.
Making
reference
to
the
appropriate
ASTM
document
easily
solves
this.

Response:
EPA
provides
some
guidance
on
the
collection
of
this
information
in
the
preamble
to
the
final
rule.
The
ASTM
E1527­
2000
standard
may
provide
additional
guidance.
Also,
case
law
may
provide
guidance
given
that
the
Courts
hold
the
ultimate
responsibility
for
interpreting
the
statutory
requirements.

The
collection
and
use
of
commonly
known
information
about
a
property
may
be
done
in
connection
with
the
collection
of
all
other
required
information
for
the
purposes
of
achieving
the
objectives
and
performance
factors
contained
in
§
312.20.
Persons
undertaking
the
all
appropriate
inquiries
may
collect
commonly
known
or
reasonably
ascertainable
information
on
the
subject
property
from
a
variety
of
sources,
including
sources
located
in
the
community
in
which
the
property
is
located.
The
opinion
provided
by
an
environmental
professional
regarding
the
environmental
conditions
of
a
property
and
included
in
the
all
appropriate
inquiries
report
should
be
based
upon
a
balance
of
all
information
collected,
including
commonly
known
or
reasonably
ascertainable
information
about
the
property.
The
potential
sources
of
commonly
known
or
reasonably
ascertainable
information
provided
in
the
proposed
rule
and
retained
in
the
final
rule
are
provided
as
suggestions
for
where
such
information
may
be
found
and
the
list
provided
is
not
meant
as
an
exhaustive
list
of
sources
that
must
be
consulted.
Commonly
known
information
may
be
collected
from
other
sources
and
may
be
most
easily
collected
during
the
conduct
of
other
aspects
of
the
all
appropriate
inquiries
investigation
(
e.
g.,
interviews,
reviews
of
historical
sources
of
information,
reviews
of
governmental
records).

Regarding
the
requirement
to
include
within
the
all
appropriate
inquiries
the
degree
of
obviousness
or
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
detect
the
contamination
by
appropriate
investigation,
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
a
release
or
threatened
release
of
hazardous
substances
(
or
other
pollutants,
contaminants,
petroleum
or
petroleum
products,
and
controlled
substances)
on,
at,
in,
or
to
the
property.
In
addition,
the
rule
requires
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.
The
final
rule
also
retains
the
proposed
requirement
that
the
environmental
professional
include
as
part
of
the
results
of
his
or
her
inquiry
an
opinion
regarding
additional
appropriate
investigation,
if
any
may
be
necessary.

We
interpret
the
statutory
criterion
to
require
consideration
of
information
already
obtained
during
the
conduct
of
all
appropriate
inquiries
investigation
and
not
as
a
requirement
to
collect
additional
information.
We
do
not
agree
with
commenters
who
asserted
that
the
criterion
is
open­
ended.
In
fact,
we
see
this
criterion
as
providing
direction
on
how
all
of
the
information
collected
while
carrying
out
the
other
criteria
and
regulatory
requirements
must
be
viewed
comprehensively.
After
collecting
and
considering
all
the
information
required
to
comply
with
582
the
rule's
objectives
and
performance
standards,
all
the
information
should
be
considered
in
total
to
determine
whether
or
not
there
are
indications
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
property.
In
addition,
the
environmental
professional
should
provide
an
opinion
regarding
whether
or
not
additional
investigation
is
necessary
to
detect
potential
contamination
at
the
site,
if
in
his
or
her
opinion
there
are
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

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
rule
changes
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986.
Case
law
relevant
to
this
criterion
indicates
that
defendants
may
not
be
able
to
claim
an
innocent
landowner
defense
if
a
preponderance
of
evidence
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.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
15
Excerpt
Text:
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.
We
support
this
section.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
requirements.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
8
Excerpt
Text:
The
proposed
rule
§
312.31
(
a)
indicates
that
the
degree
of
obviousness
of
releases
or
threatened
releases
must
be
considered
by
the
EP
(
and
others).

Comment:
While
there
are
several
discussions
regarding
"
degree
of
obviousness"
in
the
preamble,
it
is
unclear
how
this
requirement
is
intended
to
be
addressed.
If
a
release
is
found
or
known
to
exist,
this
requirement
does
not
appear
to
have
value,
as
it
is
"
obvious
enough"
to
have
been
identified.
Is
the
intent
that
for
each
threatened
release
identified
in
the
conclusions,
the
EP
provides
a
statement
as
to
how
obvious
it
is
that
the
release
may
have
actually
occurred?
An
example
would
be
a
conclusion
about
a
steel
UST
containing
hazardous
materials
on
the
site
having
been
installed
25
years
ago,
with
tightness
tests
passed
as
recently
as
the
past
year.
The
concern
would
be
slow
leaks,
or
overfills.
In
this
case,
does
the
EP
add
a
sentence
to
the
effect
583
that
it
is
"
moderately
obvious"
that
a
release
from
the
tank
may
have
occurred?
The
actual
intent
for
how
this
requirement
is
to
be
applied
in
an
AAI
report
is
very
unclear.
What
"
degrees"
of
obviousness
would
you
use
in
cases
where
the
potential
for
impact
is
low,
or
perhaps
high?
Consistency
in
terminology,
including
meaning,
is
necessary.
Otherwise,
this
issue
will
inconsistently
be
addressed.

Response:
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
a
release
or
threatened
release
of
hazardous
substances
(
or
other
pollutants,
contaminants,
petroleum
or
petroleum
products,
and
controlled
substances)
on,
at,
in,
or
to
the
property.
In
addition,
the
rule
requires
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.
The
final
rule
also
retains
the
proposed
requirement
that
the
environmental
professional
include
as
part
of
the
results
of
his
or
her
inquiry
an
opinion
regarding
additional
appropriate
investigation,
if
any
may
be
necessary.

EPA
interprets
the
statutory
criterion
to
require
consideration
of
information
already
obtained
during
the
conduct
of
all
appropriate
inquiries
investigation
and
not
as
a
requirement
to
collect
additional
information.
We
do
not
agree
with
commenters
who
asserted
that
the
criterion
is
open­
ended.
In
fact,
we
see
this
criterion
as
providing
direction
on
how
all
of
the
information
collected
while
carrying
out
the
other
criteria
and
regulatory
requirements
must
be
viewed
comprehensively.
After
collecting
and
considering
all
the
information
required
to
comply
with
the
rule's
objectives
and
performance
standards,
all
the
information
should
be
considered
in
total
to
determine
whether
or
not
there
are
indications
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
property.
In
addition,
the
environmental
professional
should
provide
an
opinion
regarding
whether
or
not
additional
investigation
is
necessary
to
detect
potential
contamination
at
the
site,
if
in
his
or
her
opinion
there
are
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

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
rule
changes
the
nature
or
intent
of
this
requirement
as
it
has
existed
in
the
statute
since
1986.

Case
law
relevant
to
this
criterion
indicates
that
defendants
may
not
be
able
to
claim
an
innocent
landowner
defense
if
a
preponderance
of
evidence
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.
Please
see
section
IV.
X
of
the
preamble
to
the
final
rule.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
9
584
Excerpt
Text:
The
proposed
rule
§
312.31
(
b)
states
that
the
EP
(
and
others)
must
consider
the
ability
to
detect
contamination
by
appropriate
investigation.
This
paragraph
ends
with
a
statement
that
the
EP
needs
to
include
an
opinion
regarding
additional
appropriate
investigation
(
recommendations).

Comment:
As
these
reports
may
also
be
used
for
business
reasons,
such
as
in
preparation
for
property
financing
or
sale,
with
possible
distribution
of
the
reports
to
multiple
parties,
clients
are
often
reluctant
to
have
recommendations
included
within
the
text
of
the
report.
Instead,
they
prefer
to
have
recommendations
provided
as
a
separate
document.
The
proposed
rule
appears
to
require
that
recommendations
be
included
in
the
report
itself.
We
suggest
that
the
option
be
presented
that
recommendations
be
able
to
be
provided
in
either
the
report,
or
in
a
separate
recommendations
letter.

Response:
The
rule
does
require
that
the
environmental
professional
on
behalf
of
the
prospective
landowner
or
grantee
document
the
results
of
the
all
appropriate
inquiries
in
a
written
report.
For
purposes
of
compliance
with
all
appropriate
inquiries
it
is
required
that
recommendations
be
provided
in
the
report.
However,
the
final
rule
contains
no
requirements
regarding
the
length,
structure,
or
specific
format
of
the
written
report.
In
addition,
the
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.
The
choice
to
distribute
this
report
is
a
decision
made
by
the
owner/
grantee
and
is
outside
the
scope
of
this
rule.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
19
Excerpt
Text:
­
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.

­­
This
proposed
requirement
is
nebulous
and
requires
additional
explanation.
Of
the
hundreds
of
all
appropriate
inquiries
we
have
conducted
or
reviewed
since
1986,
all
have
considered
the
totality
of
acquired
information.
We
question
then,
why
the
environmental
professional
must
assess
whether
an
obvious
conclusion
must
be
drawn
regarding
actual
or
threatened
releases
of
hazardous
substances.
We
believe
it
is
asking
too
much
of
the
environmental
professional
to
make
this
determination.
Let
the
facts
speak
for
themselves
and
allow
the
environmental
professional
to
make
a
judgment
as
to
potential
environmental
liabilities.
This
proposed
requirement
is
too
fine
a
line
and
trends
to
the
nebulous
in
requiring
adherence
to
"
degree
of
obviousness."
585
Response:
Please
see
response
to
comment
number
0314,
excerpt
9.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
11
Excerpt
Text:
Proposed
requirement
for
degree
of
obviousness
of
contamination
a)
Page
#
52581
b)
View:
It
is
mandatory
that
this
be
included
in
the
Phase
I
AAI
performance
standards.
It
may
seem
intuitive
that
this
be
included,
and
even
elementary
to
have
it
be
a
requirement.
However
practice
in
the
field
does
not
always
follow
logic.

c)
Assumptions:
Too
often
in
practice
consultant's
are
persuaded
to
exclude
looking
at
certain
risks
by
their
client,
and
defined
as
'
not
in
the
scope'.
d)
Burden:
None.
The
EP
must
narrate
their
observations,
all
their
observations
into
the
report.
This
is
a
primary
purpose
for
the
being
contracted
to
perform
a
Phase
I.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
5
Excerpt
Text:
Objectives
and
Performance
Factors
­
The
term
"
threatened
release"
seems
poorly­
defined.
For
example,
would
the
identification
of
high
risk
activities,
e.
g.
a
past
dry
cleaner,
during
completion
of
a
phase
I
investigation
be
considered
to
be
a
threatened
release
or
would
direct
evidence
of
a
release
be
required.?
I
suggest
inclusion
of
a
more
precise
definition
in
order
to
avoid
confusion
in
the
industry.

Response:
The
term
"
threatened
release"
is
included
in
the
definition
of
"
release"
in
the
National
Contingency
Plan
(
NCP)
at
40
CFR
300.5.
For
the
purposes
of
the
NCP,
"
release
also
means
threat
of
release."
Under
CERCLA,
owners
and
operators
of
vessels
and
facilities
may
be
found
liable
for
both
releases
of
hazardous
substances
and
threatened
releases
of
hazardous
substances.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
13
Other
Sections:
NEW
­
3.7
­
Inclusion
of
specialized
knowledge
or
experience
586
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
Excerpt
Text:
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"

Please
consider
including
the
need
to
define
the
term
"
Persons"
in
§
312.1
(
b)(
1),
should
be
further
defined,
either
in
the
preamble
or
in
§
312.10
Definitions.
Under
§
312.28,
§
312.30
and
§
312,31,
the
term
"
person"
should
not
include
every
individual
in
a
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
Tribe,
municipality,
commission,
political
subdivision
of
a
State,
or
any
interstate
body,
but
should
be
limited
to
those
persons
directly
involved
with
conducting
the
AAI
for
the
purpose
of
§
312.28,
§
312.30
and
§
312.31.
For
example,
specialized
knowledge
or
experience
cannot
mean
the
specialized
knowledge
or
experience
of
every
employee
in
a
corporation
of
25,000
employees.
Clarifying
language
and
instructive
examples
in
the
preamble
will
ensure
that
the
applicability
of
these
sections
is
practical.

Response:
The
term
"
person"
is
defined
in
Section
101(
21)
of
CERCLA.
"
Person"
means
an
individual,
firm,
corporation,
association,
partnership,
consortium,
joint
venture,
commercial
entity,
United
States
Government,
State,
municipality,
commission,
political
subdivision
of
a
State,
or
any
interstate
body.
Since
firms,
corporations,
associations,
partnerships,
etc.
may
purchase
potentially
contaminated
property
and
may
want
to
attain
protection
from
CERCLA
liability,
as
provided
under
the
statute,
EPA
is
uncertain
why
the
commenter
is
suggesting
that
the
term
person
be
limited
or
changed
from
its
common
legal
definition
and
the
definition
provided
under
the
CERCLA
statute.
587
3.11
Recognized
Environmental
Conditions
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
2
Excerpt
Text:
Sec.
312.1(
2)(
ii)
and
(
iii).
These
subsections
exceed
EPA's
authority
by
requiring
prospective
purchasers
and
grantees
to
investigated
releases
and
threatened
releases
of
substances
not
regulated
under
the
Comprehensive
Environmental
Response,
Compensation
and
Liability
Act.
Specifically,
(
ii)
requires
investigation
in
to
petroleum
releases,
which
are
excluded
under
CERCLA,
and
(
iii)
"
controlled
substances"
under
21
U.
S.
C.
802,
the
Drug
Abuse,
Prevention
and
Control
Act!
(
See
also,
312.27(
b)
where
reports
of
visual
inspections
are
to
identify
areas
where
21
U.
S.
C.
802
chemicals
were
found.)
An
environmental
assessment
for
hazardous
substances
is
costly.
While
cleaning
up
meth
labs
is
laudable,
assessing
a
brownfield
site
for
illegal
drugs
is
an
unnecessary
redevelopment
expense.

Response:
The
scope
of
the
all
appropriate
inquiries
regulation
as
it
applies
the
persons
conducting
the
investigations
to
obtain
protection
from
CERCLA
liability
is
limited
to
identifying
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,
as
defined
under
Section
101(
14)
of
CERCLA.

In
those
instances
where
a
government
entity
receives
a
brownfields
grant
from
EPA
under
the
authorities
of
CERCLA
section
104(
k)(
2)
and
the
grant
or
cooperative
agreement
specifies
that
the
site
characterization
and
assessment
to
be
funded
by
the
grant
covers
additional
contaminants,
pollutants,
petroleum,
petroleum
products,
or
controlled
substances,
then
the
scope
of
the
all
appropriate
inquiries
investigation
must
include
these
additional
substances.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
11
Excerpt
Text:
The
Band
agrees
with
the
proposed
language
limiting
identification
of
releases
and
threatened
releases
only
where
a
threat
is
posed
to
human
health
or
the
environment.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
19
Excerpt
Text:
588
312.20(
d):
"
Threatened"
release
is
a
very
nebulous
term
and
needs
some
discussion
or
examples.

Response:
The
term
"
threatened
release"
is
included
in
the
definition
of
"
release"
in
the
National
Contingency
Plan
(
NCP)
at
40
CFR
300.5.
For
the
purposes
of
the
NCP,
"
release
also
means
threat
of
release."
Under
CERCLA,
owners
and
operators
of
vessels
and
facilities
may
be
found
liable
for
both
releases
of
hazardous
substances
and
threatened
releases
of
hazardous
substances.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
4
Excerpt
Text:
The
proposed
rule
requires
people
using
grant
funds
to
address
petroleum
products,
pollutants,
contaminates
and
controlled
substances
in
addition
to
hazardous
substances
while
non­
grant
funded
AAIs
are
only
required
to
address
hazardous
substances.
The
rule
and
preamble
do
not
address
the
rationale
for
requiring
the
more
rigorous
list
for
grant
funded
AAIs.
It
has
been
our
experience
that
petroleum
products
are
more
commonly
identified
on
properties
undergoing
Phase
I's
than
are
hazardous
substances
and
that
the
majority
of
Phase
I's
conducted
are
done
by
private
individuals
not
seeking
grant
funding.
It
would
therefore
stand
to
reason
that
petroleum
contamination
would
not
be
required
to
be
reported
or
addressed
by
a
majority
of
those
required
to
perform
AAIs
for
CERCLA
protection.
It
would
seem
more
prudent
to
require
that
the
same
materials
be
addressed
in
either
grant
funded
or
non­
grant
funded
AAIs.

Response:
The
scope
of
the
all
appropriate
inquiries
regulation
as
it
applies
the
persons
conducting
the
investigations
to
obtain
protection
from
CERCLA
liability
is
limited
to
identifying
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,
as
defined
under
Section
101(
14)
of
CERCLA.
Under
CERCLA,
liability
is
extended
only
to
releases
and
threatened
releases
of
hazardous
substances.

In
those
instances
where
a
government
entity
receives
a
brownfields
grant
from
EPA
under
the
authorities
of
CERCLA
section
104(
k)(
2)
and
the
grant
or
cooperative
agreement
specifies
that
the
site
characterization
and
assessment
to
be
funded
by
the
grant
covers
additional
contaminants,
pollutants,
petroleum,
petroleum
products,
or
controlled
substances,
then
the
scope
of
the
all
appropriate
inquiries
investigation
must
include
these
additional
substances.

EPA
agrees
with
the
commenter
that
it
may
be
prudent
for
prospective
property
owners
to
assess
the
subject
property
for
releases
and
threatened
releases
of
other
pollutants
and
substances,
including
petroleum
and
petroleum
products.
589
3.11.1
De
Minimis
Conditions
or
Releases
of
Hazardous
Substances
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
11
Excerpt
Text:
R&
W
commends
the
EPA
for
including
essentially
a
de
minimis
condition
in
§
312.21(
g),
that
which
poses
no
threat
to
human
health
and
the
environment.
The
de
minimis
condition
has
been
key
to
the
success
of
E­
1527­
00
and
its
predecessors.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
13
Other
Sections:
NEW
­
3.1.1
­
Interview
of
the
current
owners,
occupants,
employees,
and/
or
managers
of
the
subject
property
Excerpt
Text:
The
proposed
§
312.23(
b)
requires
that
the
EP's
inquiry
include
interviews
with
"
major
occupants"
and
"
occupants
likely
to
use,
store,
treat,
handle
or
dispose
of
hazardous
substances."
Under
this
proposed
rule,
an
environmental
professional
must
interview
all
occupants
of
a
property
who
are
likely
to
"
use,
store,
treat,
handle
or
dispose
hazardous
substances
 "
This
could
be
interpreted
to
include
any
residence,
as
they
typically
have
ammonia,
chlorine
bleach,
various
pesticides,
etc.
This
requirement
would
create
additional
cost
and
difficulty
in
conducting
inquiries,
while
providing
only
a
minimal
benefit,
if
any
at
all.
For
example,
if
a
property
contains
an
apartment
complex,
the
EP
could
be
required
to
interview
every
tenant
in
the
building.
R&
W
requests
that
the
EPA
clarify
this
requirement
to
specifically
exclude
de
minimis
use,
storage,
and
disposal
of
hazardous
substances
that
are
typically
associated
with
residential
dwellings
and
commercial
offices.

Response:
In
the
case
of
properties
where
there
may
be
more
than
one
owner
or
occupant,
or
many
owners
or
occupants,
the
final
rule
requires
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
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
objectives
and
performance
factors
for
the
inquiries
in
'
312.20(
e)
and
(
f).
Environmental
professionals
may
use
their
professional
judgment
to
determine
the
specific
occupants
to
be
interviewed
and
the
total
number
of
occupants
to
be
interviewed
in
seeking
to
comply
with
the
objectives
and
performance
factors
for
the
inquiries.
Interviews
must
be
conducted
with
individuals
most
likely
to
be
knowledgeable
590
about
the
current
and
past
uses
of
the
property,
particularly
with
regard
to
current
and
past
uses
of
hazardous
substances
on
the
property.

EPA
points
out
that
the
environmental
professional
need
not
specifically
identify,
in
the
written
report
prepared
pursuant
to
§
312.21(
c),
extremely
small
quantities
or
amounts
of
contaminants,
so
long
as
the
contaminants
generally
would
not
pose
a
threat
to
human
health
or
the
environment.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
6
Excerpt
Text:
Proposed
Section
312.20(
g)
and
312.21(
c):
DEQ
recognizes
that
identification
of
routine
household
cleaners
typically
found
at
businesses
is
probably
not
relevant
to
AAI.
However,
DEQ
believes
that
small
quantities
or
amounts
of
hazardous
substances
should
be
included
in
the
report.
An
example
of
when
the
proposed
rule
could
pose
a
problem
is
at
an
automotive
maintenance
facility.
An
automotive
maintenance
facility
typically
has
cans
of
brake
cleaner,
lubricants
and
other
chemical
compounds
sitting
around.
Although
there
may
only
be
small
quantities
of
these
items
and
they
may
pose
no
immediate
threats
to
human
health
or
the
environment,
the
facility
may
have
had
terrible
housekeeping
practices.
No
signs
of
contamination
may
be
evident.
However,
20
years
of
improperly
disposing
of
and
spilling
the
cleaners,
lubricants,
etc.
may
lead
to
soil
and
groundwater
contamination.
It
is
important
for
the
prospective
purchaser
to
be
aware
of
all
chemicals
used
at
the
property
they
are
purchasing.
DEQ
requests
that
EPA
require
the
identification
of
small
quantities
or
amounts
of
hazardous
substances
in
the
AAI
reports.

Response:
EPA
points
out
that
the
environmental
professional
need
not
specifically
identify,
in
the
written
report
prepared
pursuant
to
§
312.21(
c),
extremely
small
quantities
or
amounts
of
contaminants,
so
long
as
the
contaminants
generally
would
not
pose
a
threat
to
human
health
or
the
environment.
However,
small
quantities
of
hazardous
substances
that
may
pose
a
threat
to
human
health
and
the
environment,
if
released
to
the
environment
must
be
identified
and
documented.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
20
Excerpt
Text:
312.20(
g):
I
know
that
regulators
object
to
the
definition
of
de
minimis
in
1527,
but
it
is
better
than
"
generally
would
not
pose
a
threat
to
human
health
or
the
environment",
which
is
very
vague
and
undefined.
The
Environmental
Professional
should
be
qualified
to
decide
if
something
is
not
likely
to
raise
the
concern
of
a
regulator,
recognizing
that
there
is
no
guaranty
(
I
am
familiar
with
a
California
EPA/
DTSC
requiring
additional
investigation
at
a
property,
based
on
a
591
10­
year
old
report
that
described
a
situation
that
would
have
been
de
minimis
at
the
time
and
for
which
there
were
no
current
indications
of
a
release,
but
that
was
an
attempt
to
shake
down
the
property
owner
for
a
regional
problem
for
which
there
were
no
other
available
responsible
parties).

Response:
EPA
points
out
that
the
environmental
professional
need
not
specifically
identify,
in
the
written
report
prepared
pursuant
to
§
312.21(
c),
extremely
small
quantities
or
amounts
of
contaminants,
so
long
as
the
contaminants
generally
would
not
pose
a
threat
to
human
health
or
the
environment.
However,
small
quantities
of
hazardous
substances
that
may
pose
a
threat
to
human
health
and
the
environment,
if
released
to
the
environment
must
be
identified
and
documented.

The
Agency
is
comfortable
with
the
current
language
as
it
expresses
the
intent
of
the
statute
accurately.
In
addition,
the
nature
of
a
performance
standard
based
rule
is
a
lack
of
bright­
line
directives.
Some
aspects
of
the
investigation
are
left
to
the
discretion
of
the
environmental
professional.
This
provides
for
flexible
solutions
to
unique
and
site­
specific
situations.
592
3.11.2
Controlled
Substances
Commenter
Organization
Name:
Zutz
Comment
Number:
0104
Excerpt
Number:
1
Excerpt
Text:
This
section
requires
investigations
"
to
identify
conditions
indicative
of
releases...
releases
and
threatened
releases
of"
pollutants
and
contaminates,
petroleum
or
petroleum
products,
and
controlled
substances.
It
appears
that
controlled
substances
could
be
either
legal
and
illegal.

We
take
exception
to
including
investigation
for
controlled
substances.
It
is
our
opinion
that
the
ramifications
of
this
proposed
rule
have
not
been
fully
considered.
To
meet
the
rule
as
written,
an
investigation
would
need
to
include
a
vegetation
survey
of
each
property
to
identify
marijuana,
poppies,
mushrooms
or
certain
other
plants.
It
is
our
opinion
that
most
of
the­
current
environmental
professionals
lack
the
experience,
knowledge,
or
training
to
conduct
such
an
investigation.
It
would
also
be
cost
prohibitive
and
perhaps
literally
impossible
to
conduct
a
vegetation
survey
on
large
parcels.

Is
the
intent
of
this
investigation
to
identify
current
or
former
meth
labs?
If
so,
the
raw
components
or
by­
products
that
may
be
used
in
the
meth
manufacturing
process
would
be
identified
as
a
hazardous
substance
(
although
perhaps
at
de
minimus
levels).

Consider
these
properties
and
associated
questions­

Land
with
unpaved
areas
­
If
native
marijuana
is
identified
growing
on
a
property,
is
the
presence
a
"
threatened
release"?
If
native
marijuana
is
cut
by
a
lawn
mower,
is
it
a
"
release"
to
the
land
surface?
Soil
Borings
°
Construction
Materials
Testing
°
Monitoring
Wells
Residential
properties
­
Would
current
or
expired
legal
drug
prescriptions
be
considered
de
minimus?
What
inquiry
should
be
done
for
potential
illegal
controlled
substances?
Provided
they
had
actual
knowledge,
is
it
likely
that
a
current
or
former
owner
or
occupant
would
voluntarily
admit
that
illegal
controlled
substances
were
present?

Landfills
­
While
there
is
potential
for
current
or
past
disposal
of
drugs
from
manufacturing,
what
records
would
there
be
to
review
for
normal
household
or
commercial
disposal?

Hospitals,
nursing
homes,
pharmacies,
wastewater
treatment
plants
­
There
is
potential
for
sewer
disposal
of
unused
Pharmaceuticals
or
illegal
drugs.
However,
what
inquiry
could
or
should
be
done?

It
appears
that
investigation
for
controlled
substances
should
be
left
to
the
discretion
of
the
environmental
professional
for
those
few
facilities
that
may
have
significant
drugs,
such
as
pharmaceutical
manufacturing
or
distribution
facilities.
593
We
believe
this
section
puts
a
significant
and
unnecessary
burden
on
the
environmental
professional
with
a
very
low
likelihood
of
significant
findings.
Therefore,
we
suggest
that
investigation
for
controlled
substances
be
deleted
from
the
final
rule.

Response:
The
scope
of
the
all
appropriate
inquiries
regulation
as
it
applies
the
persons
conducting
the
investigations
to
obtain
protection
from
CERCLA
liability
is
limited
to
identifying
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances,
as
defined
under
Section
101(
14)
of
CERCLA.
Under
CERCLA,
liability
is
extended
only
to
releases
and
threatened
releases
of
hazardous
substances.

In
those
instances
where
a
government
entity
receives
a
brownfields
grant
from
EPA
under
the
authorities
of
CERCLA
section
104(
k)(
2)
and
the
grant
or
cooperative
agreement
specifies
that
the
site
characterization
and
assessment
to
be
funded
by
the
grant
covers
additional
contaminants,
pollutants,
petroleum,
petroleum
products,
or
controlled
substances,
then
the
scope
of
the
all
appropriate
inquiries
investigation
must
include
these
additional
substances.

Commenter
Organization
Name:
anonymous
institution
Comment
Number:
0315
Excerpt
Number:
1
Excerpt
Text:
The
Proposed
AAI
Rule
will
require
the
investigation
into
the
presence
of
"
controlled
substances".
A
review
of
the
Drug
Enforcement
Agency's
website
lists
thousands
of
controlled
substances
including,
narcotics,
pharmaceuticals,
steroids,
tobacco,
etc.
A
specific
list
of
controlled
substances
is
not
provided
in
the
proposed
Rule.
Despite
this,
it
is
our
understanding
that
Superfund
liability
does
not
arise
from
the
mere
presence
of
controlled
substances,
as
such,
why
is
this
topic
included
at
all.
The
inclusion
of
this
topic
will
also
create
the
need
for
additional
criminal/
legal
searches
for
every
Phase
I
Site
Assessment.
This
is
well
above
and
beyond
the
expertise
and
credentials
of
environmental
professionals.
Furthermore,
these
searches
are
already
part
of
legal
due
diligence
for
property
transfer.
Attorneys
licensed
and
experienced
in
criminal,
drug
enforcement,
and
property
transfer
laws
should
continue
to
focus
on
"
controlled
substances".

Response:
Please
see
response
to
comment
number
0104,
excerpt
1.

Commenter
Organization
Name:
Potter
and
Adams
Comment
Number:
0351
Excerpt
Number:
4
Excerpt
Text:
For
persons
defined
under
Section
312.1(
b)(
1),
the
investigation
is
limited
to
releases
or
threatened
releases,
as
defined
by
CERCLA
Section
101(
22),
of
hazardous
substances
as
defined
594
by
CERCLA
Section
101(
14).
For
persons
defined
under
Section
312.1(
b)(
2),
the
investigation
is
expanded
to
releases
or
threatened
releases,
as
defined
by
CERCLA
Section
101(
22),
of
hazardous
substances
as
defined
by
CERCLA
Section
101(
14),
pollutants
and
contaminants
as
defined
by
CERCLA
Section
101(
33),
petroleum
and
petroleum
products,
and
controlled
substances.

The
proposed
scope
is
a
departure
from
the
currently
accepted
scope
of
a
Phase
I
environmental
assessment
(
ASTM
E
1527­
00).
The
ASTM
scope
includes
assessing
the
property
with
respect
to
the
range
of
contaminants
within
the
scope
of
CERCLA
and
petroleum
products.
The
addition
of
controlled
substances
to
the
AAI
scope
will
increase
the
cost
of
the
AAI
process.
It
is
suggested
that
controlled
substances
be
eliminated
from
Section
312.1(
c)(
2).

Response:
Please
see
response
to
comment
number
0104,
excerpt
1.

EPA
agrees
with
the
commenter
that
the
expanded
scope
that
is
applicable
only
to
certain
recipients
of
brownfields
grants
is
a
departure
from
currently
commercially­
accepted
environmental
site
assessments.
Funding
for
the
expanded
investigations
is
provided
through
the
EPA
grant
program.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
6
Excerpt
Text:
Proposed
Rule
§
312.1(
c)(
2)(
iii)
adds
a
new
­
and,
frankly,
surprising
­
category
of
substances
to
be
assessed
during
the
AAI:
controlled
substances.
The
definition
of
"
controlled
substance",
incorporated
by
reference
in
the
proposed
AAI
Rule,
is
any
"
drug
or
other
substance,
or
immediate
precursor,
included
in
schedule
I,
II,
III,
IV,
or
V
of
part
B
of
[
the
Drug
Abuse
Prevention
and
Control
Act]."
Thus,
the
proposed
AAI
Rule
requires
EPs
to
assess
whether
or
not
there
are
illegal
narcotics
on
the
property
as
part
of
the
environmental
due
diligence.

Granted,
the
manufacture
and
processing
of
many
narcotics
involves
hazardous
chemicals;
however,
those
chemicals
already
fall
within
the
CERCLA
definition
of
a
hazardous
substance.
It
is
unclear
how
this
new
requirement
to
assess
the
presence
of
narcotics
(
above
and
beyond
the
mere
presence
of
hazardous
substances)
advances
the
goals
of
EPA,
CERCLA,
the
potential
landowner
or
even
drug
enforcement
agencies.
Since
the
AAI
Reports
are
not
required
to
be
disclosed
to
any
government
agency,
it
does
not
appear
that
it
will
be
an
effective
tool
for
narcotics
enforcement.
Moreover,
few
EPs
have
3­
to
10­
years
relevant
experience
in
assessing
the
presence
of
controlled
substances,
and
such
knowledge
is
outside
of
scope
of
the
requisite
EP
educational
requirements
described
in
Proposed
Rule
§
312.10(
b).

While
it
may
be
a
noble
goal
to
ferret
out
illegal
drugs,
environmental
due
diligence
is
not
the
appropriate
vehicle
to
do
so,
and
EPs
are
not
the
appropriate
professionals
for
that
task.
595
Response:
Please
see
response
to
comment
number
0104,
excerpt
1.
596
3.12
Data
Gaps
Commenter
Organization
Name:
City
of
Jacksonville,
Florida
Comment
Number:
0095
Excerpt
Number:
5
Excerpt
Text:
Secs.
312.20(
3)(
i)
and
312.23
require
interviews
with
past
and
present
owners,
operators,
and
occupants.
EPA
recognizes
that,
for
abandoned
properties,
it
may
be
impossible
to
find
any,
and
recommends
contacting
the
owners
of
neighboring
parcels.
The
inability
to
find
such
persons,
says
EPA,
may
result
in
data
gaps
to
be
filled
or
explained
by
the
EP
using
"
best
professional
judgment."
The
purpose
of
the
regulation
is
to
set
standards
that,
when
met,
entitle
a
person
to
certain
protections
against
liability.
This
is
not
helpful.
In
the
end,
the
likely
course
of
action
will
be
sampling,
even
though
EPA
does
not
mandate
sampling
as
a
minimum
criterion
for
"
all
appropriate
inquiry."
EPA
should
de­
emphasize
the
hunt
for
people
who
obviously
don't
want
the
property
and
allow
prospective
purchasers
to
rely
on
historical
records,
site
conditions,
supplemented
by
interviews,
where
available.

Response:
In
today's
final
rule,
§
312.20(
g)
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
petroleum
products,
and
controlled
substances).
The
final
rule
requires
such
persons
to
identify
the
sources
of
information
consulted
to
address
the
data
gaps
and
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases.
Section
312.21(
c)(
2)
also
requires
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.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.
597
Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
7
Excerpt
Text:
7
Steve
Myers
Sampling
312.20(
f)
(
Data
gaps)
Will
sampling
be
necessary
every
time
that
there
is
a
historical
data
gap
or
if
a
past
owner
or
operator
cannot
be
found
or
is
unwilling
to
talk?

Response:
Please
see
response
to
comment
number
0095,
excerpt
5.
Sampling
and
analysis
may
only
be
necessary
in
those
limited
cases
where
the
environmental
professional
cannot
render
an
opinion
regarding
whether
or
not
there
are
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
at
a
property.

Commenter
Organization
Name:
Diamond,
Jason
Comment
Number:
0251
Excerpt
Number:
5
Excerpt
Text:
The
AAI
rule
requires
that
the
written
report
summarizing
the
results
of
the
inquiry
identify
data
gaps
in
the
information
developed
as
part
of
the
inquiry
that
affect
the
EP's
ability
to
ascertain
whether
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
to
the
property
are
present.
The
rule
also
requires
the
report
include
comments
regarding
the
significance
of
such
data
gaps
on
the
EP's
ability
to
provide
an
opinion
as
to
whether
the
inquiry
has
identified
conditions
indicative
of
a
release
at
the
property.
This
approach
allows
for
flexibility
in
addressing
data
gaps.
The
EP
may
exercise
his
judgment
in
determining
if
data
gaps
have
significantly
affected
his
ability
to
meet
the
objective
of
the
AAI
standard,
and
may
include
in
the
report
his
opinion
regarding
additional
investigations
and
sampling
and
analyses
that
may
be
required
to
address
data
gaps.

Response:
The
Agency
agrees
with
the
commenter.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
6
Excerpt
Text:
The
data
gap
issue
has
the
potential
to
make
the
AAI
reporting
process
unworkable.
Virtually
all
reports
will
have
data
gaps
and
they
are
unavoidable
for
properties
with
historic
uses
prior
to
the
mid
1800'
s.
The
problem
with
the
draft
rule
and
the
preamble
is
they
are
open
to
the
interpretation
that
all
data
gaps
are
identifiable
as
to
their
existance
and
their
significance.
Clearly
it
is
impossible
to
intelligently
speculate
on
the
impact
of
something
that
you
know
nothing
about.
One
obvious
solution
is
to
better
define
what
constitutes
a
"
data
gap
that
affects
their
ability
to
identify
conditions
indicative
of
a
release
 ".
A
reasonable
interpretation
would
598
be
that
a
data
gap
must
be
discussed
only
if
the
professional
experience
or
other
information
obtained
in
the
conduct
of
the
Phase
1
raises
concerns
about
an
identified
data
gap.
This
would
avoid
the
need
to
speculate
about
what
may
or
may
not
have
happened
on
a
property
during
the
Civil
War
in
the
absence
of
any
indication
that
there
was
any
historic
activity
of
concern
on
that
property.
The
AAI
process
needs
to
arrive
at
closure.
Any
implication
that
extraordinary
measures
are
required
to
identify
and
opine
on
data
gaps
will
prevent
closure
and
greatly
increase
the
cost
of
preparing
a
report.

The
concept
of
data
gap
resolution
appears
to
be
inconsistent
with
the
principles
adopted
in
Standard
Commercial
practice.
The
current
process
is
not
exhaustive,
does
not
eliminate
uncertainty,
and
is
highly
variable
dependent
upon
the
property.
If
the
data
gap
language
is
maintained
it
must
be
clear
that
concept
is
applied
in
the
context
of
the
principles
inherent
in
the
process
and
standard
of
good
commercial
and
customary
practice.

Response:
In
today's
final
rule,
§
312.20(
g)
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
petroleum
products,
and
controlled
substances).
The
final
rule
requires
such
persons
to
identify
the
sources
of
information
consulted
to
address
the
data
gaps
and
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases.
Section
312.21(
c)(
2)
also
requires
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.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

Commenter
Organization
Name:
PIRG
Comment
Number:
0258
Excerpt
Number:
3
599
Excerpt
Text:
Weaker
standards
also
make
data
gaps
much
more
likely.
Data
gaps
may
be
noted
and
discussed
in
the
report,
pursuant
to
AAI
draft
rule.
Unfortunately,
when
the
draft
rule
seems
to
clearly
allow
such
gaps­
as
is
the
case
with
the
broad
exceptions
on
site
inspections­
the
likelihood
that
the
report
will
fail
to
identify
an
environmental
condition
increases.
At
the
same
time,
a
purchaser
can
claim
that
the
AAI
standard
was
met.
The
purchaser
may
then
claim
a
liability
exemption,
but
not
take
reasonable
steps
to
address
an
environmental
condition
missed
due
to
a
gap
in
information.
This
result
is
inconsistent
with
the
Brownfields
Law
and
is
unacceptable.

Response:
The
commenter
may
have
misunderstood
the
scope
of
the
rule
and
the
statutory
requirements
for
obtaining
the
liability
protections.
As
explained
in
detail
in
Section
II
of
the
preamble
to
the
proposed
and
final
rules,
the
conduct
of
all
appropriate
inquiries
is
only
one
requirement
necessary
for
obtaining
protection
from
CERCLA
liability.
The
mere
fact
that
a
prospective
landowner
conducted
all
appropriate
inquiries
does
not
provide
an
individual
with
protection
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
the
preamble.
The
all
appropriate
inquiries
investigation
may
provide
a
prospective
landowner
with
necessary
information
to
comply
with
the
other
postacquisition
statutory
requirements
for
obtaining
liability
protections.
The
conduct
of
an
incomplete
all
appropriate
inquiries
investigation,
or
the
failure
to
detect
a
release
during
the
conduct
of
all
appropriate
inquiries,
does
not
exempt
a
landowner
from
his
or
her
postacquisition
continuing
obligations
under
other
provisions
of
the
statute.
Failure
to
comply
with
any
of
the
statutory
requirements
may
be
problematic
in
a
claim
for
protection
from
liability.

The
final
rule
retains
the
requirement
to
identify
data
gaps,
address
them
when
possible,
and
document
their
significance.
Prospective
landowners
may
wish
to
consider
the
potential
significance
of
any
data
gaps
that
may
exist
after
conducting
the
pre­
acquisition
all
appropriate
inquiries
in
assessing
their
obligations
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
§
§
312.10,
312.20(
g)
and
§
312.21(
c)(
2),
the
person
may
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
the
preamble,
fulfilling
the
all
appropriate
inquiries
requirements
does
not,
by
itself,
provide
a
person
with
a
protection
from
or
defense
to
CERCLA
liability.
Failure
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
does
not
negate
the
landowner's
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
inquiries
prior
to
the
acquisition
of
a
property,
a
landowner
is
not
exempt
from
complying
with
the
institutional
600
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.

We
emphasize
that
the
mere
fact
that
a
prospective
landowner
conducted
all
appropriate
inquiries
does
not
provide
an
individual
with
a
defense
to
or
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
the
preamble
to
the
final
rule.
The
all
appropriate
inquiries
investigation
may
provide
a
prospective
landowner
with
necessary
information
to
comply
with
the
other
postacquisition
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.

Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
5
Excerpt
Text:
In
many
circumstances,
so
called
?
gaps?
in
data
are
inevitable
no
matter
how
much
time
and
effort
go
into
a
project.
This
issue
raises
concerns
about
Timer,
Cost,
and
Confidentiality.
Is
it
necessary
or
a
good
idea
to
have
more
of
the
community
involved
in
data
gap
interviews?

Response:
In
today's
final
rule,
§
312.20(
g)
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
petroleum
products,
and
controlled
substances).
The
final
rule
requires
such
persons
to
identify
the
sources
of
information
consulted
to
address
the
data
gaps
and
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases.
Section
312.21(
c)(
2)
also
requires
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.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
601
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

It
is
left
to
the
judgment
and
discretion
of
the
environmental
professional
as
to
whether
it
is
necessary
or
prudent
to
involve
more
of
the
community
or
use
additional
interviews
to
address
data
gaps.
It
may
depend
on
the
nature
of
the
data
gaps.

Commenter
Organization
Name:
Miles
&
Stockbridge
Comment
Number:
0277
Excerpt
Number:
2
Excerpt
Text:
3.
Data
Gap
Definition
­
Another
serious
issue
is
the
proposed
definition
of
"
data
gap"
(
40
CFR
§
312.10).
This
definition
states
that
the
AAI
rules
will
not
protect
prospective
purchasers
for
any
environmental
condition
or
liability
arising
from
"
data
gap",
i.
e.,
defined
as
a
lack
or
inability
to
obtain
information
required
by
the
standards
and
practices
listed
in
the
proposed
rule,
despite
good
faith
efforts
by
the
environmental
professional.
Further,
the
preamble
states
" 
a
fulfillment
of
the
"
All
Appropriate
Inquiries"
requirements
does
not,
by
itself,
provide
a
person
with
a
protection
from
or
defense
to
CERCLA
liability."
(
69FR52560).
Such
qualification
to
liability
protection
provisions
will
effectively
nullify
the
prospective
purchaser
protections
that
Congress
intended.
Further,
depending
on
a
business'
portfolio
and
assets,
lending
institutions
may
be
reluctant
or
refuse
to
loan
money
to
a
small
business
acting
as
a
prospective
purchaser
for
fear
of
liability.
In
summary,
the
proposed
definition
of
data
gap
will
adversely
impact
property
transactions,
business
development
and
small
businesses.

Response:
The
comment
is
premised
upon
an
inaccurate
understanding
of
the
CERCLA
liability
provisions.
CERCLA
requires
that
all
appropriate
inquiries
be
conducted,
AND
continuing
obligations
be
met
to
qualify
for
liability
protection.
This
rule
(
all
appropriate
inquiries)
does
not
affect
the
statutory
liability
scheme
established
by
Congress,
rather
it
defines
the
standards
and
practices
that
must
be
conducted
to
comply
with
the
provisions
for
all
appropriate
inquiries
requires.

Further,
the
rule
does
not
state
"
that
the
AAI
rules
will
not
protect
prospective
purchasers
for
any
environmental
condition
or
liability
arising
from
`
data
gap' "
Please
also
see
the
response
to
comment
number
0258,
excerpt
3.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
3
Excerpt
Text:
Distinguish
data
gaps
as
they
relate
to
categorical
information
about
the
property
and
not
as
they
may
relate
to
information
sources.
Specifically,
that
"
information
required
by
the
standards
and
602
practices
listed
in
Subpart
C
of
this
part,"
be
referred
to
by
"
types
of
information
about
the
subject
property"
as
identified
in
Section
312.20
(
d)
Objectives,
as
opposed
to
also
including
(
possibly)
data
gathering
problems
with
information
sources
(
312.20(
b)(
3)).

Response:
EPA
does
not
agree
with
commenter's
suggestion
for
distinguishing
between
types
of
data
gaps.
In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

It
is
left
to
the
judgment
and
discretion
of
the
environmental
professional
as
to
whether
it
is
necessary
or
prudent
to
involve
more
of
the
community
or
use
additional
interviews
to
address
data
gaps.
It
may
depend
on
the
nature
of
the
data
gaps.

Commenter
Organization
Name:
anonymous
institution
Comment
Number:
0315
Excerpt
Number:
2
Excerpt
Text:
We
endorse
an
increase
historical
interviewing
and
investigation
into
the
past
use(
s)
of
the
property
and
neighboring
properties.
However,
with
an
increase
in
"
practicable"(
feasible)
interviewing
(
i.
e.
past
owners,
past
occupants,
neighbors),
a
substantial
increase
in
the
number
of
"
data
gaps"
will
inevitably
occur
due
to
difficulty
in
obtaining
this
information.
An
increase
in
"
data
gaps"
can
only
lead
to
a
flawed
CERCLA
liability
defense.
Clear
and
concise
wording
should
be
outlined
in
the
Rule
to
legally
handle
these
Phase
I
"
data
gaps".

Response:
Please
see
response
to
comment
number
0258,
excerpt
3.

Commenter
Organization
Name:
Herin
Comment
Number:
0329
Excerpt
Number:
3
Excerpt
Text:
603
With
respect
to
the
issue
of
"
data
gaps"
I
would
encourage
EPA
to
provide
further
guidance
as
to
how
these
may
be
efficiently
treated
in
an
AAI
report
so
the
user
can
more
easily
take
advantage
of
the
innocent
landowner
protections.
It
seems
that
it
will
be
too
easy
for
consultants
to
frequently
default
to
broadly
identifying
data
gaps
which
result
in
the
user
not
being
protected
unless
the
user
performs
sampling
and
analysis.
Some
data
gaps
do
not
justify
the
need
for
further
work
and
it
would
be
helpful
for
EPA
to
guide
the
EP
and
user
in
how
this
determination
may
be
made.
Furthermore,
the
EP
ought
to
be
encouraged
to
specifically
define
the
nature
of
each
data
gap
(
including
the
type
of
risk
which
may
be
taken
by
the
user
if
the
data
gap
is
not
further
addressed).

Response:
Please
see
response
to
comment
number
0292,
excerpt
3.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
3
Excerpt
Text:
­
The
New
Rule
Appears
to
Make
Prospective
Purchasers
Liable
For
Undiscovered
On­
Going
Releases
No
matter
how
thorough
a
Phase
I
is
(
or
even
a
Phase
II,
for
that
matter)
it
is
possible
that
sources
of
contamination
on
the
subject
property
will
remain
undiscovered.
Even
if
the
site
investigation
identifies
contamination,
it
may
not
identify
all
of
it.
It
is
common
to
discover
additional
materials
not
disclosed
in
the
site
investigation
report
once
excavation
for
a
construction
project
begins.
In
reality,
although
pre­
purchase
inquiry
through
a
professionally
conducted
site
investigation
is
an
invaluable
tool,
the
ultimate
test
is
conducted
by
bulldozers
and
backhoes
when
construction
begins.

The
preamble
to
the
proposed
rule,
explaining
the
new
"
data
gaps"
requirement
(
page
52560),
appears
to
imply
that
purchasers
are
fully
liable
for
any
on­
going
release
not
discovered
by
the
pre­
purchase
Phase
T
site
investigation:
"[
a]
n
inability
to
obtain
information.
.
can
have
significant
consequences
regarding
a
prospective
landowner's
ultimate
ability
to
claim
protection
from
CERCLA
liability
[
and]
may
result
in
an
inability
to
claim
protection
against
CERCLA
liability
for
any
on­
going
release."
In
the
case
complicated
groundwater
pollution,
this
could
potentially
expose
purchasers
to
untold
costs
in
liability.

The
proposed
rule
appears
to
reason
that
if
the
on­
going
release
isn't
discovered
during
the
Phase
I,
the
landowner
can't
take
"
reasonable
steps"
to
stop
the
release
and
will
therefore
be
liable
for
all
contamination
released
into
the
environment.
As
the
rule
explains
(
page
52560):
"
For
example,
if
a
person
does
not
identify,
during
the
all
appropriate
inquiries,
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."
We
do
agree
that
landowners
should
be
responsible
to
take
reasonable
steps
to
stop
on­
going
releases,
once
the
release
becomes
known.
However,
a
landowner
who
has
604
conducted
a
pre­
purchase
inquiry
in
accordance
with
generally
accepted
good
commercial
and
customary
standards
and
practices
should
not
incur
CERCLA
liability
for
any
on­
going
release
not
discovered
by
the
inquiry.

At
a
minimum,
the
proposed
rule
should
provide
additional
clarifying
language
that
makes
it
clear
that
a
landowner's
responsibility
for
any
on­
going
release
of
contamination
undiscovered
by
a
properly
conducted
Phase
I
is
to
stop
the
release
when
and
if
it
is
discovered.
It
should
be
made
absolutely
clear
that
if
the
landowner
takes
reasonable
steps
to
stop
the
release
promptly
upon
discovery,
the
landowner
will
not
be
liable
for
the
cost
of
cleaning
up
any
contamination
that
was
released
into
the
environment
while
the
release
was
ongoing.

Response:
The
commenter
is
correct
in
stating
that
a
landowner's
responsibility
for
any
on­
going
release
of
contamination
undiscovered
by
a
properly
conducted
Phase
I
is
to
stop
the
release
when
and
if
it
is
discovered.
If
the
landowner
takes
reasonable
steps
to
stop
the
release
promptly
upon
discovery,
the
landowner
may
not
be
liable
for
the
cost
of
cleaning
up
any
contamination
that
was
released
into
the
environment
while
the
release
was
ongoing.
However,
to
obtain
protection
from
liability
under
CERCLA
the
landowner
may
have
to
demonstrate
that
he
or
she
did
not
know
and
"
had
no
reason
to
know"
that
the
contamination
existed
on
the
property
prior
to
his
or
her
acquisition
of
the
property.
Making
such
a
demonstration
may
require
that
a
landowner
defend
the
accuracy
and
thoroughness
of
the
all
appropriate
inquiries
investigation
conducted
prior
to
acquiring
the
property.
If
a
court
determines
that
the
all
appropriate
inquiries
investigation
was
not
compliant
with
the
final
regulations
or
otherwise
should
have
identified
releases
or
threatened
releases
of
hazardous
substances
at
the
property,
the
court
may
establish
that
the
land
owner
is
not
eligible
for
the
liability
protections.

Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
7
Excerpt
Text:
In
the
preamble
to
the
proposed
rule,
the
EPA
states
that
an
environmental
professional's
inability
to
obtain
information,
or
data
gaps,
could
result
in
the
inability
of
the
prospective
purchaser
to
claim
protection
against
CERCLA
liability.
This
language
seems
to
raise
the
bar
for
environmental
consultants
to
the
point
that
perfection
would
now
be
required.
Under
the
EPA's
language,
if
a
release
is
discovered
despite
conducting
"
all
appropriate
inquiry,"
the
prospective
purchaser
may
not
be
able
to
claim
a
defense
to
CERCLA
liability.
The
Grand
Rapids
Area
Chamber
of
Commerce
recommends
that
this
preamble
language
be
modified
to
allow
prospective
purchasers
to
obtain
protection
from
CERCLA
liability
as
long
as
they
conduct
"
all
appropriate
inquiry"
in
conformance
with
the
ASTM
Standard
into
the
property.

Response:
Please
see
response
to
comment
number
0344,
excerpt
3.
605
Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
9
Excerpt
Text:
Data
Gaps.
Potentially
a
source
of
major
additional
costs
because
of
the
ambiguity
of
the
language.\

Response:
The
Agency
believes
the
language
is
sufficiently
specific.
EPA
points
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

It
is
left
to
the
judgment
and
discretion
of
the
environmental
professional
as
to
whether
it
is
necessary
or
prudent
to
involve
more
of
the
community
or
use
additional
interviews
to
address
data
gaps.
It
may
depend
on
the
nature
of
the
data
gaps.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
11
Excerpt
Text:
­
The
preamble
uses
the
example
of
an
undiscovered
leaking
underground
storage
tank
resulting
in
the
inability
to
take
reasonable
steps
to
stop
on
going
releases,
thus
resulting
in
the
inability
to
claim
protection
from
CERCLA
liability.
It
is
my
understanding
that
the
basis
for
the
retroapplicability
of
CERCLA
is
that
legally
it
is
an
on
going
release.
Thus
failure
to
discover
any
release
on
a
property
would
result
in
the
inability
to
claim
CERCLA.
If
there
is
a
possibility
of
not
discovering
a
release
and
thus
not
complying
with
AAI
even
though
every
other
aspect
was
properly
performed,
why
do
any
inquiry
at
all?
If
EPA
is
expecting
perfect
information,
there
would
be
no
liability
to
protect
and
the
entire
AAI
process
is
negated.
This
statement
should
be
removed
from
the
preamble.

Response:
606
Please
see
response
to
comment
number
0344,
excerpt
3.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
22
Excerpt
Text:
312.21(
c)(
2):
see
comment
on
definition
of
data
gap.
But
even
with
a
defined
time
period,
the
Environmental
Professional
should
comment
on
the
significance
of
the
data
gap
as
it
applies
to
a
particular
property
and
would
be
negligent
if
he
thought
five
years
is
too
long
and
did
not
attempt
to
close
the
gap.
I
recommend
adopting
the
1527
language.

Response:
The
Agency
believes
the
language
is
sufficiently
specific.
EPA
points
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

It
is
left
to
the
judgment
and
discretion
of
the
environmental
professional
as
to
whether
it
is
necessary
or
prudent
to
involve
more
of
the
community
or
use
additional
interviews
to
address
data
gaps.
It
may
depend
on
the
nature
of
the
data
gaps.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
6
Excerpt
Text:
­
B.
The
Proposed
"
Data
Gaps"
Requirement
Casts
Doubt
on
Developers'
Protection
From
CERCLA
Liability
for
Undiscovered
Ongoing
Releases
­­
i.
Congress
intended
that
a
developer's
responsibility
for
contamination
would
be
limited
to
taking
"
reasonable
steps"
to
stop
leaks
and
protect
the
public,
but
would
not
extend
to
expensive
cleanups.
607
The
purpose
of
affording
prospective
purchasers
liability
protection
is
to
assure
them
that
they
will
not
incur
CERCLA
liability
for
costs
of
cleaning
up
contamination
on
the
subject
property
or
remediating
groundwater
that
is
polluted
by
releases
of
contamination
from
the
subject
property
[
Footnote:
Much
of
the
concern
over
CERCLA
liability
centers
on
co­
mingled
groundwater
plumes.
It
is
often
the
case
that
groundwater
underlying
industrial
areas
is
contaminated
with
many
different
chemicals
from
many
different
sources.
Because
CERCLA
liability
is
joint
and
several,
the
owner
of
a
site
that
has
contributed
a
relatively
small
amount
of
contamination
to
groundwater
can
be
held
liable
for
the
cost
of
cleaning
up
the
entire
plume.
Remediation
of
contaminated
groundwater
plumes
is
extremely
expensive,
potentially
running
into
tens
of
millions
of
dollars
or
more].
The
Brownfields
Revitalization
Act
provides
that
all
purchasers
must,
however,
take
"
reasonable
steps"
to
stop
any
ongoing
release
and
protect
human
health
and
the
environment.
42
U.
S.
C.
§
9601
(
35)(
B)(
i).
Reasonable
steps
do
not
include
remediating
groundwater
or
a
"
full"
cleanup
of
contamination,
such
as
removing
contaminated
soil.
Rather,
they
are
intended
to
contain
contamination
and
protect
the
public
without
exposing
developers
to
the
excessive
liability
involved
in
CERCLA
remediation
actions.
Prior
to
this
negotiated
rulemaking
process,
staff
attorneys
in
EPA's
Office
of
Enforcement
explained
the
reasonable
steps
obligations
of
protected
developers:

"
By
making
the
landowner
liability
protections
subject
to
the
obligations
to
take
"
reasonable
steps,"
EPA
believes
Congress
intended
to
balance
the
desire
to
protect
certain
landowners
from
CERCLA
liability
with
the
need
to
ensure
the
protection
of
human
health
and
the
environment.
In
requiring
reasonable
steps
from
parties
qualifying
for
landowner
liability
protections,
EPA
believes
Congress
did
not
intend
to
create,
as
a
general
matter,
the
same
types
of
response
obligations
that
exist
for
a
CERCLA
liable
party
(
e.
g.,
removal
of
contaminated
soil,
extraction
and
treatment
of
contaminated
groundwater)."

United
States
Environmental
Protection
Agency,
Office
of
Enforcement
and
Compliance
Assurance,
Interim
Guidance
Regarding
Criteria
Landowners
Must
Meet
in
Order
to
Qualify
for
Bona
Fide
Prospective
Purchaser,
Contiguous
Property
Owner,
or
Innocent
Landowner
Limitations
on
CERCLA
Liability
9
(
March
6,
2003)
(
emphasis
original)
("
Guidance
Document").

­­
ii.
Congress
intended
developers
to
be
protected
from
liability
for
hidden
contamination
that
is
discovered
after
the
purchase.

EPA's
staff
attorneys
also
made
clear
that
protected
developers
are
not
responsible
for
cleaning
up
contamination
that
is
missed
during
a
properly
conducted
prepurchase
site
investigation,
but
are
only
responsible
to
take
"
reasonable
steps"
when
and
if
hidden
contamination
comes
to
light:

Q7:
If
a
protected
landowner
discovers
a
previously
unknown
release
of
a
hazardous
substance
from
a
source
on
her
property,
must
she
remediate
the
release?

A7:
Provided
the
landowner
is
not
otherwise
responsible
for
the
release
from
the
source,
she
should
take
some
affirmative
steps
to
"
stop
the
continuing
release,"
but
EPA
would
not,
absent
unusual
circumstances,
look
to
her
for
performance
of
complete
remedial
measures.
608
Id.
at
attachment
B.

­­
iii.
The
negotiated
rule
appears
to
contradict
the
intent
of
Congress
by
holding
developers
fully
liable
for
contamination
undiscovered
during
the
pre­
purchase
inquiry.

EPA's
negotiated
rule,
which
is
being
promulgated
by
a
different
office
within
EPA,
contradicts
the
Guidance
Document
issued
by
the
Office
of
Compliance
and
casts
doubt
on
whether
conducting
All
Appropriate
Inquiry
prior
to
purchase,
and
thereby
obtaining
protected
landowner
status,
can
ever
result
in
any
meaningful
CERCLA
liability
protection
[
Footnote:
7
Guidance
documents
do
not
have
the
force
of
law.
See
Skidmore
v.
Swift
&
Co.,
323
U.
S.
134,
140
(
1944);
Christensen
v.
Harris
County,
529
U.
S.
576,
587
(
2000).
Rules
properly
adopted
through
notice
and
comment
rulemaking
do
have
the
force
of
law
and
ordinarily
are
entitled
to
Chevron
deference.
See
United
States
v.
Mead
Corp.,
553
U.
S.
218
(
2001).
An
agency
may
also
change
its
mind
in
making
policy
determinations
so
long
as
the
decision
is
within
the
range
of
options
permitted
by
its
organic
statute
or
other
legislation.
However,
the
Guidance
Document
represents
an
unbiased
contemporaneous
interpretation
of
a
statute
the
agency
is
entrusted
with
administering
and
it
expresses
the
agency's
understanding
of
the
intent
of
Congress.
We
believe
the
Guidance
Document
correctly
states
the
unambiguously
expressed
intent
of
Congress
and
EPA
cannot
now
deviate
from
that
intent.].
The
intent
of
the
negotiated
rule
appears
to
be
to
hold
developers
fully
liable
for
contamination
undiscovered
during
the
pre­
purchase
inquiry.

The
Statement
of
Basis
and
Purpose,
explaining
the
new
"
data
gaps"
requirement
at
page
52560,
implies
that
purchasers
are
fully
liable
for
an
on­
going
release
not
discovered
by
the
prepurchase
investigation:
"[
a]
n
inability
to
obtain
information 
can
have
significant
consequences
regarding
a
prospective
landowner's
ultimate
ability
to
claim
protection
from
CERCLA
liability.
.
.
.
[
and]
may
result
in
an
inability
to
claim
protection
against
CERCLA
liability
for
any
ongoing
release."
EPA
reasons
that
if
an
on­
going
release
isn't
discovered
during
the
pre­
purchase
investigation,
the
landowner
can't
take
"
reasonable
steps"
to
stop
the
release
(
because
he
doesn't
know
about
it)
and
will
therefore
be
liable
for
all
contamination
released
into
the
environment.
As
EPA
explains:
"
For
example,
if
a
person
does
not
identify,
during
the
all
appropriate
inquiries,
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."
EPA
apparently
intends
to
attach
liability
for
undiscovered
releases
despite
"
good
faith
efforts
by
the
environmental
professional
or
prospective
landowner"
to
gather
information
and
where
there
is
simply
a
lack
of
information
indicating
contamination.
69
Fed.
Reg.
at
52559­
560.
If
taken
literally,
this
language
abolishes
innocent
purchasers'
protections
entirely.
At
best,
it
is
ambiguous
and
rife
with
uncertainty
[
Footnote:
This
particularly
troubling
passage
might
be
explained
by
turbulence
between
EPA
and
Negotiated
Rulemaking
Committee
members.
U.
S.
PIRG,
a
staunch
advocate
of
public
health
and
environmental
protection,
abruptly
quit
the
rulemaking
committee
in
part
because
it
felt
that
the
"
data
gaps"
section
was
too
lenient
for
developers.
Letter
from
Julie
C.
Wolk,
U.
S.
PIRG
to
Patricia
Overmeyer,
U.
S.
EPA,
December
19,
2003.
EPA,
in
turn,
replied
that
U.
S.
PIRG
could
not
withdraw
from
the
negotiated
rulemaking
process
because
the
committee
had
already
reached
consensus.
Letter
from
Marianne
Horinko,
U.
S.
EPA
to
Gene
Karpinski,
U.
S.
609
PIRG,
undated.
This
is
part
of
the
attempt
of
EPA
to
insulate
itself
from
legal
challenges
to
the
regulation.
As
a
part
of
the
negotiated
rulemaking
process
committee
members
commit
to
support
the
rule
once
consensus
is
reached.
This
commitment,
however,
is
certainly
legally
unenforceable
on
numerous
constitutional
and
statutory
grounds.].

At
a
minimum,
EPA
should
provide
clarifying
language
that
leaves
no
doubt
that
a
developer's
only
responsibility
for
any
on­
going
release
of
contamination
undiscovered
by
a
properly
conducted
AAI
is
to
stop
the
release
when
and
if
it
is
discovered.
It
should
be
made
crystal
clear
that
if
the
developer
takes
reasonable
steps
to
stop
the
release
promptly
upon
discovery,
the
she
will
not
be
liable
for
the
cost
of
cleaning
up
any
contamination
that
was
released
into
the
environment
while
the
release
was
ongoing.

Response:
The
commenter
is
correct
in
asserting
that
a
landowner's
responsibility
for
any
on­
going
release
of
contamination
undiscovered
by
a
properly
conducted
all
appropriate
inquiries
investigation
is
to
stop
the
release
when
and
if
it
is
discovered.
If
the
landowner
takes
reasonable
steps
to
stop
the
release
promptly
upon
discovery,
the
landowner
may
not
be
liable
for
the
cost
of
cleaning
up
any
contamination
that
was
released
into
the
environment
while
the
release
was
ongoing.
However,
to
obtain
protection
from
liability
under
CERCLA
the
landowner
may
have
to
demonstrate
that
he
or
she
did
not
know
and
"
had
no
reason
to
know"
that
the
contamination
existed
on
the
property
prior
to
his
or
her
acquisition
of
the
property.
Making
such
a
demonstration
may
require
that
a
landowner
defend
the
accuracy
and
thoroughness
of
the
all
appropriate
inquiries
investigation
conducted
prior
to
acquiring
the
property.
If
a
court
determines
that
the
all
appropriate
inquiries
investigation
was
not
compliant
with
the
final
regulations
or
otherwise
should
have
identified
releases
or
threatened
releases
of
hazardous
substances
at
the
property,
the
court
may
establish
that
the
land
owner
is
not
eligible
for
the
liability
protections.
The
language
that
the
commenter
cites
from
the
preamble
to
the
proposed
rule
was
meant
to
inform
prospective
property
owners
that
all
appropriate
inquiries
must
be
conducted
thoroughly
and
in
compliance
with
the
final
regulations
and
that
the
failure
to
discover
an
on­
going
release
due
to
an
improperly
conducted
all
appropriate
inquiries
investigation
may
result
in
the
landowner
losing
protection
from
CERCLA
liability.

The
requirement
to
identify
and
document
"
data
gaps"
is
not
meant
to
establish
an
"
open
ended"
search
requirement.
The
requirement
to
identify
"
data
gaps"
is
meant
to
provide
documentation
of
what
types
of
information
an
environmental
professional
(
and
those
individuals
under
the
direct
charge
and
supervision
of
the
environmental
professional)
searched
for,
in
compliance
with
the
objectives
and
performance
factors
of
the
rule,
and
could
not
find,
in
those
cases
where,
in
the
judgment
of
the
environmental
professional
affect
his
or
her
ability
to
determine
whether
or
not
conditions
at
a
property
are
indicative
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
the
property.
In
cases
where
the
environmental
professional
determines
that
data
gaps
or
missing
information
about
a
property
are
not
essential
to
his
or
her
determination
with
regard
to
the
environmental
conditions
of
the
property,
documentation
of
data
gaps
is
not
required.
610
Data
gaps
are
an
essential
element
of
all
appropriate
inquiries.
EPA
determined
that
it
is
important
that
the
conduct
of
all
appropriate
inquiries
include
documentation
of
how
missing
information
may
affect
an
environmental
professional's
ability
to
adequately
determine
the
potential
environmental
conditions
at
a
property.
This
aspect
of
the
inquiries
allows
environmental
professionals
to
apply
their
professional
judgment.
If,
for
instance,
there
is
a
significant
gap
in
data
about
a
property
and
the
lack
of
such
information
reduces
the
ability
of
the
environmental
professional
to
adequately
characterize
the
environmental
conditions
at
that
property,
a
prospective
property
owner
can
use
such
information
to
take
appropriate
steps
to
proceed
in
an
environmentally
responsible
manner
with
regard
to
further
characterization
of
the
property.
The
preamble
to
the
proposed
All
Appropriate
Inquiries
rule
published
in
the
Federal
Register
(
40
CFR
Part
312),
notes,
" 
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."
(
40
CFR
Part
312,
p.
52560).
EPA
views
this
to
be
consistent
with
Congressional
intent.

Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
6
Excerpt
Text:
The
proposal
requests
comments
on
proposed
standards
for
conducting
interviews
of
past
and
present
owners
and
occupants
of
a
property
and
comments
on
the
proposed
standards
for
reviews
of
historical
sources
of
information.

The
proposed
standards
generally
propose
appropriate
requirements
for
interviewing
past
and
present
owners
(
when
feasible)
and
consulting
other
historical
sources
of
information.
However,
in
circumstances
in
which
information
from
predecessor
entities
and
other
historical
information
is
sketchy
or
unavailable,
the
implication
to
be
drawn
from
the
proposed
standard
is
that
these
are
then
"
data
gaps"
to
be
identified
in
the
report.
Since
the
significance
of
such
information
may
be
difficult
to
determine,
one
must
infer
that
a
user
of
the
report
must
conduct
phase
II
site
testing
in
order
to
have
any
assurance
that
it
would
qualify
for
the
liability
defenses
available
under
CERCLA.
This
is
likely
to
add
substantial
delay
and
expense
as
report
users
(
lenders,
purchasers
and
others)
will
likely
strive
to
have
the
greatest
degree
of
practical
certainty
that
they
would
qualify
for
the
defenses.

Response:
In
today's
final
rule,
§
312.20(
g)
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
petroleum
products,
and
controlled
substances).
The
final
rule
requires
such
persons
to
identify
the
sources
of
information
consulted
to
address
the
data
gaps
and
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases.
Section
312.21(
c)(
2)
also
611
requires
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.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

It
is
left
to
the
judgment
and
discretion
of
the
environmental
professional
as
to
whether
it
is
necessary
or
prudent
to
involve
more
of
the
community
or
use
additional
interviews
to
address
data
gaps.
It
may
depend
on
the
nature
of
the
data
gaps.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
6
Other
Sections:
NEW
­
1.1.1.3
­
The
proposed
rule
will
improve
quality
of
ESAs
Excerpt
Text:
­
The
proposed
provisions
for
addressing
data
gaps.

­­
Lack
of
information
or
the
inability
to
obtain
information
on
a
site
is
a
common
problem.
This
is
often
caused
by
project
limitations
as
reflected
in
scope
and
budget.
However,
Phase
I
ESA
reports
have
traditionally
not
included
detail
about
data
gaps.
Therefore,
we
believe
this
proposed
requirement
will
result
in
better
reports
and
provide
report
recipients
with
greater
detail
upon
which
liability
minimizing
decisions
can
be
made.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
6
Excerpt
Text:
612
Data
gaps
are
to
be
addressed
using
"
best
professional
judgment."
This
"
standard"
gives
little
or
no
confidence
that
liability
protection
will
be
afforded
the
purchaser
or
lessee.

Response:
Please
see
responses
to
comment
numbers
0354
(
excerpt
6)
and
0363
(
excerpt
6).
613
3.12.1
The
Rule
Should
Require
Sampling
and
Analysis
Commenter
Organization
Name:
Tweedale,
Tony
Comment
Number:
0045
Excerpt
Number:
3
Excerpt
Text:
The
requirements
for
making
data
gaps
evident
(
proposed
Sec.
312.10)
appear
strong,
but
I
wonder
if
there's
any
way
to
build
in
even
more
incentive
to
perform
sampling
&
analysis
(
in
this
or
other
sections),
using
EPA's
administrative
powers
to
create
some
sorts
of
preferences
for
sites
where
sampling
was
included
during
'
all
appropriate
inquiry'?

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Rynders,
Dustin,
et
al
Comment
Number:
0076
Excerpt
Number:
1
Excerpt
Text:
A
review
of
the
standards
and
practices
promulgated
by
EPA
in
this
rulemaking
are
in
general
acceptable.
Of
concern
is
the
method
by
which
purchasers
are
or
are
not
required
to
close
data
gaps
as
provided
in
§
312.20(
f)
and
§
312.21.
Because
data
gaps
may
prevent
an
environmental
professional
from
being
able
to
issue
an
unqualified
opinion,
removal
of
data
gaps
is
critical
to
the
accomplishment
of
the
stated
purpose
of
the
Brownfields
Amendments
­
the
identification
of
sites
requiring
cleanup.

Although
proposed
rule
§
312.20(
f)
states
"
Sampling
and
analysis
may
be
conducted
to
develop
information
to
address
data
gaps,"
[
emphasis
added]
there
is
no
provision
for
mandatory
testing
to
receive
the
liability
limits
contemplated
by
the
Brownfields
Amendment.
614
To
further
extend
the
benefits
of
the
Brownfields
Amendments,
we
propose
the
following
additions
to
the
proposed
regulation:

Elimination
of
data
gaps
(
a)
Data
gaps
(
as
defined
in
§
312.10)
may
be
eliminated
through
the
development
and
completion
of
a
site
specific
sampling
plan
which
shall
be
developed
by
the
environmental
professional
(
as
defined
in
§
312.10)
who
will
be
writing
the
opinion
prescribed
in
§
312.21.

(
b)
The
scope
of
the
site
sampling
plan
need
only
be
designed
to
fill
the
specific
data
gaps
as
identified
by
the
environmental
professional.

(
c)
Completion
of
all
testing
identified
by
a
site
specific
sampling
plan
shall
constitute
a
closing
of
the
particular
data
gap
so
long
as
the
site
specific
sampling
plan
and
the
test
reports
shall
be
included
in
the
environmental
professional's
report.

Response:
See
response
to
commenter
number
0045,
excerpt
3.

Commenter
Organization
Name:
Wassom,
Brady
Comment
Number:
0233
Excerpt
Number:
1
Excerpt
Text:
In
an
attempt
to
relieve
liability
from
businesses
who
want
to
redevelop
brownfields
and
thus
discourage
the
development
of
open
space,
the
Brownfields
Law
will
require
those
said
businesses
to
conduct
all
appropriate
inquiries
(
AAI)
in
order
to
establish
that
prospective
purchasers
had
no
reason
to
know
of
any
contamination
on
a
property.
The
proposed
standards
and
practices
for
conducting
AAI
do
not
include
requirements
for
sampling
and
analysis
of
contaminated
properties.
The
proposed
standards
do
require
that
prospective
purchasers
of
brownfields,
through
the
consultation
of
an
"
environmental
professional"
(
EP)
as
defined
by
the
same
proposed
standards,
gather
historical
information,
government
data
and
conduct
interviews
to
enable
the
purchaser
to
determine
the
extent
to
which
a
property
is
contaminated.
In
order
to
fill
in
possible
data
gaps
that
might
exist
after
conducting
the
above
research,
voluntary
sampling
may
be
conducted
but
is
not
required.
It
is
my
contention
that
due
to
the
changing
demographics
in
the
urban
centers
of
the
northeastern
United
States
as
exemplified
by
the
state
of
New
Jersey,
this
absence
of
a
sampling
and
analysis
requirement
will
be
detrimental
to
public
health.
Perhaps
the
lack
of
requirements
for
sampling
and
analysis
will
make
the
process
of
purchasing
and
redeveloping
brownfields
less
costly
and,
in
turn,
discourage
the
development
of
open
space,
but
what
are
the
potential
costs
to
public
health?

Like
many
states
in
the
northeast,
New
Jersey
has
seen
a
change
from
an
economy
mainly
based
on
industrial
enterprise
to
one
based
on
services
over
the
last
century.
This
change
has
left
many
former
industrial
sites
vacant
and
prime
for
redevelopment.
However,
much
of
this
redevelopment
will
not
occur
to
feed
a
growing
demand
for
industrial
development
in
the
state.
615
Rather,
this
redevelopment
is
needed
in
order
to
meet
the
demands
of
a
growing
population
that
is
borne
of
the
growth
of
the
adjacent
growing
economies
of
New
York
and
Philadelphia
(
Katcher,
2000).
Furthermore,
many
of
the
brownfield
sites
in
New
Jersey
exist
on
parcels
of
land
that
are
too
awkward
and
small
for
industrial
development
thus
lending
them
to
residential
development
(
Greenberg,
2001).
Meeting
the
demands
of
a
growing
population
and
redeveloping
brownfields
for
residential
use
requires
an
primary
emphasis
on
protecting
the
public
health
in
addition
to
encouraging
the
redevelopment
of
brownfields.
With
many
brownfield
properties
situated
in
low­
income
neighborhoods,
the
redevelopment
of
these
sites
also
has
civil
rights/
environmental
justice
implications
(
Greenberg,
2001).

A
case
that
is
illustrative
of
the
potential
problems
with
brownfields
redevelopment
and
potential
public
health
costs
is
the
Grand
Street
Mercury
Site
in
Hoboken,
NJ.
Since
1910,
this
site
was
home
to
a
variety
of
manufacturing
companies
including
the
Cooper
Hewitt
Electric
Company,
the
General
Electric
Vapor
Light
Company,
the
General
Electric
Company
and
the
Quality
Tool
and
Die
Company.
From
1910
to
1965
these
companies
manufactured
mercury
vapor
lamps
at
the
site.
In
1990,
the
last
owner
of
the
site,
the
Quality
Tool
and
Die
Company,
filed
to
stop
operations
under
the
New
Jersey
Environmental
Cleanup
and
Responsibility
Act.
Remediation
of
the
site
involved
removing
an
underground
storage
tank
used
for
petroleum
products
and
removal
of
associated
contaminated
soil.
Given
the
history
of
the
site,
it
is
alarming
that
no
federal
laws
required
sampling
for
mercury
contamination
at
the
site
before
it
was
redeveloped
for
residential
use.
After
the
sale
was
complete,
the
property
was
sold
to
a
community
real
estate
cooperative
that
sold
the
individual
units
for
use
as
apartments
and
art
studios.
One
year
after
residents
moved
in,
mercury
contamination
was
discovered
at
the
site.
Subsequent
sampling
and
analysis
of
urine
samples
from
residents
and
owners
of
the
units
revealed
that
69%
of
those
sampled
had
elevated
mercury
levels
(
equal
to
or
greater
than
20
micrograms
per
liter)
(
Singh,
1998).
As
of
June
2003,
the
EPA
issued
a
unilateral
administrative
order
for
the
primary
responsible
party
to
conduct
remedial
action
(
EPA,
2004).

The
Hickory
Woods
neighborhood
in
Buffalo,
New
York
is
another
case
where
a
brownfield
site
was
redeveloped
into
a
residential
development.
The
redevelopment
was
part
of
an
urbanrenewal
initiative
where
a
former
steelmaking
plant
was
converted
to
a
housing
subdivision
in
the
late
1980s.
By
the
mid­
1990s,
residents
of
the
subdivision
suspected
there
was
contamination
associated
with
the
former
steel
mill.
In
2000,
the
EPA
confirmed
the
presence
of
elevated
levels
of
lead,
mercury
and
arsenic
(
Rosenberg,
2003).

Both
of
the
above
cases
have
some
striking
similarities.
Both
sites
were
brownfields
in
urban
areas
that
were
redeveloped
for
future
residential
development.
Although,
the
history
and
previous
ownership
of
both
sites
was
known,
sampling
and
analysis
were
not
required
as
part
of
the
CERCLA
requirements
to
release
the
properties
to
new
owners.
Under,
the
proposed
standards
for
conducting
AAIs,
sites
such
as
these
would
not
require
sampling
in
order
for
liability
to
be
released
and
redevelopment
to
begin.
Due
to
the
demand
for
residential
real
estate
in
the
urban
areas
of
the
northeast,
brownfield
development
should
be
approached
with
the
protection
of
public
health
as
the
primary
consideration.
The
Brownfields
Law
is
an
important
step
in
converting
brownfields
to
usable
properties,
but
the
lack
of
a
requirement
for
sampling
and
analysis
of
sites
is
unacceptable
as
it
is
616
proposed.
The
proposed
standards
do
not
adequately
address
the
unique
environment
in
which
many
of
the
brownfields
sites
exist
in
the
northeastern
U.
S.

Furthermore,
the
lack
of
a
requirement
for
sampling
and
analysis
is
also
disturbing
in
light
of
the
fact
that
the
proposed
standards
for
the
AAI
require
the
EP
to
issue
an
opinion
regarding
additionally
needed
investigation,
if
any
(
Albergo,
2004).
This
"
opinion"
may
be
issued
without
knowledge
of
the
specific
future
development
plans
for
a
site.
In
the
above
cases,
would
an
EP
have
known
that
the
sites
were
going
to
be
used
for
residential
development?
If
the
EP
did,
the
risk
analysis
would
be
much
different
than
if
the
EP
was
under
the
assumption
that
the
sites
were
going
to
be
used
for
industrial
development.
Additionally,
the
prospective
purchaser
may
not
want
to
disclose
the
specific
details
of
any
future
development
for
fear
of
being
held
hostage
by
an
EP's
opinion/
recommendation
(
Albergo,
2004).
The
public
health
implications
of
this
would
not
be
in
the
best
interest
of
the
public.

The
lack
of
a
requirement
to
conduct
sampling
and
analysis
in
the
proposed
standards
for
conducting
AAIs
is
cited
by
some
as
the
biggest
challenge
facing
all
stakeholders
who
have
an
interest
in
brownfields
redevelopment
(
Siegel,
2004).
Adopting
boilerplate
standards
for
the
nation
as
a
whole
fails
to
address
the
unique
needs
of
those
in
the
urban
northeastern
U.
S.
Certainly,
it
would
be
possible
to
adopt
different
standards
for
different
geographic
regions
as
is
done
in
the
Clean
Air
Act.
In
these
areas,
where
residential
development
is
increasing,
it
is
imperative
that
the
EPA
carefully
consider
the
costs
and
benefits
of
brownfield
redevelopment
and
its
potential
impact
on
the
public
health.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

EPA
agrees
with
the
commenter's
statements
indicating
that
different
types
of
properties
represent
different
environmental
and
redevelopment
challenges.
The
performance­
based
approach
to
the
final
rule
was
developed
to
allow
environmental
professionals
to
use
their
judgment
in
addressing
the
unique
nature
of
individual
properties.
At
this
time,
and
given
the
general
nature
of
the
information
collection
requirements
included
in
the
final
rule
(
as
mandated
617
in
the
statute),
EPA
does
not
see
the
need
for
tailoring
the
requirements
to
different
regions
of
the
country,
or
developing
separate
standards
for
different
regions.
618
3.12.2
The
Rule
Should
Not
Require
Sampling
and
Analysis
Commenter
Organization
Name:
Thacker,
Barry
K
Comment
Number:
0071
Excerpt
Number:
3
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
Furthermore,
I
support
the
AAI
rule
changes
because
they
encourage
a
performance­
based
approach,
rather
than
a
prescriptive
"
mandatory"
application
of
a
"
standard,'"
and
allow
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
Simon,
Richard
M
Comment
Number:
0089
Excerpt
Number:
4
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
like
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach,
rather
than
a
prescriptive
'
mandatory'
application
of
a
'
standard,'
and
allows
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.
I
also
believe
that
the
broader
scope
of
environmental
inquiry
and
wider
application
of
the
rule
will
result
in
the
development
of
more
thorough
scopes
of
services,
contracts,
and
reports.
This
result
will
be
of
significant
benefit
to
my
firm,
the
client,
and
most
of
all,
the
public.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
4
Excerpt
Text:
Providing
sampling
of
any
nature
(
ACM,
soils,
water,
etc.)
should
not
be
an
integral
part
of
the
AAI
and
the
initial
ESA
preparation.
If
the
basic
purpose
of
the
AAI
is
to
determine
the
criteria
to
base
the
performance
of
a
historical/
data
search
for
property
use
and
potential
environmental
concerns...
then
sampling
should
be
a
follow­
up,
stand­
alone
report
based
on
the
conclusions
derived
from
the
ESA....
not
part
of
the
ESA
study.

Response:
EPA
agrees
with
the
commenter.
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
619
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
7
Excerpt
Text:
I
support
the
draft
approach
of
not
requiring
sampling.
Standard
commercial
practice
is
to
use
the
AAI
(
Phase
I)
process
to
identify
potential
issues.
The
concept
of
using
a
Phase
II
process
to
resolve
issues,
frequently
with
the
use
of
sampling,
has
worked
well
in
standard
commercial
practice.
When
you
cross
over
the
line
from
collecting
existing
data
to
generating
new
information
many
issues
need
to
be
resolved.
Virtually
none
of
these
issues
are
addressed
in
the
current
AAI
or
ASTM
Phase
I
process.
I
would
support
removing
any
reference
to
sampling
as
part
of
a
Phase
I/
AAI
process.

Response:
Please
see
response
to
comment
number
0097,
excerpt
4.

Commenter
Organization
Name:
Belaire,
Kent
Comment
Number:
0267
Excerpt
Number:
3
Excerpt
Text:
The
rule
requires
the
EP
to
prepare
a
written
report
which
summarizes
the
results
of
the
inquiry
and
provide
opinions
as
to
whether
the
inquiry
has
identified
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
on
the
property.
This
is
generally
consistent
with
the
ASTM
standard
which
has
worked
well
in
the
past.
The
AAI
rule
requires
that
the
report
identify
data
gaps
in
the
information
developed
as
part
of
the
inquiry
that
affects
the
EP's
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
to
the
property.
The
rule
also
requires
the
report
include
comments
regarding
the
significance
of
such
data
gaps
on
the
EP's
ability
to
provide
an
opinion
as
to
whether
the
inquiry
has
identified
conditions
indicative
of
a
release
at
the
property.
This
approach
allows
for
the
most
flexibility
in
addressing
data
gaps.
The
EP
may
exercise
his
judgment
in
determining
if
data
gaps
have
620
significantly
affected
his
ability
to
meet
the
objective
of
the
AAI
standard.
And
if
so,
the
EP
may
include
in
the
report
his
opinion
regarding
additional
investigations
and
sampling
and
analyses
that
may
be
required
to
address
data
gaps.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
PBS
&
J
Comment
Number:
0270
Excerpt
Number:
6
Excerpt
Text:
Conducting
intrusive
sampling
and
laboratory
analysis
during
a
Phase
I
to
address
"
data
gaps"
is
introducing
something,
which
we
believe
only
complicates
answering
the
gap
question.
Conducting
intrusive
sampling
and
laboratory
analysis
should
be
done
as
a
means
to
further
in
Response:
EPA
agrees
with
the
commenter.
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Billington,
Edward
Comment
Number:
0284
Excerpt
Number:
2
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
I
also
support
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach,
rather
than
a
mandatory
application
of
a
prescriptive
standard,
and
allows
for
the
environmental
professional
to
resolve
data
gaps
based
on
his
or
her
experience.
The
broader
scope
of
environmental
inquiry
and
wider
application
of
the
rule
should
result
in
the
development
of
more
thorough
scopes
of
services,
contracts,
and
reports.
I
believe
the
result
will
be
of
significant
benefit
to
the
public.
621
Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
10
Excerpt
Text:
R&
W
supports
the
proposal
to
not
require
environmental
sampling
and
testing
for
each
AAI
study
to
fill
all
data
gaps.
Indiscriminate
use
of
sampling
and
testing
needlessly
increases
the
cost
of
investigations
and
usually
increases
their
duration.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
20
Excerpt
Text:
SAMPLING
1)
Will
sampling
be
necessary
every
time
that
there
is
a
historical
data
gap,
or
if
past
owners
and/
or
operators
cannot
be
found
or
are
unwilling
to
talk?
FAA
does
not
believe
that
sampling
should
be
required
for
AAI.
EPs
should
determine
the
degree
of
obviousness
of
the
presence
of
contamination
based
on
information
and
impressions
from
on­
site
visual
inspections,
interviews,
and
data
collected
pursuant
to
the
proposed
standards.
The
original
ASTM
E1527
standard
was
meant
to
serve
as
a
guideline
for
the
initial
Phase
I
environmental
inquiry.
If
contamination
is
suspected
based
on
the
conclusions
of
the
Phase
I/
AAI
report,
then
additional
inquiries
in
the
form
of
a
Phase
II
confirmatory
sampling
investigation
would
be
warranted.
However,
it
is
inappropriate
to
make
this
costly
and
possibly
unnecessary
exploration
standard
for
all
AAI
investigations.
Subsurface
investigation
can
be
quite
expensive
and
would
be
unnecessary
in
many
cases.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
622
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

The
rule
requires
environmental
professionals
to
record
and
comment
only
on
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."
69
FR
at
52560.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported.
EPA
cannot
make
this
any
more
clear
and
still
retain
the
flexibility
required
to
evaluate
unique
properties.
Also,
the
preamble
to
the
proposed
rule
stated
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."
69
FR
at
52560.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
12
Excerpt
Text:
­
Conducting
sampling
and
analysis
to
address
data
gaps
opens
up
another
Pandora's
Box.
I
have
not
seen
any
procedure
in
SW­
840
that
addresses
how
to
bridge
data
gaps.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

EPA's
SW­
840
guidance
provides
sampling
and
testing
procedures
for
solid
and
hazardous
wastes
and
media
containing
these
wastes.
The
document
is
not
meant
to
provide
guidance
for
the
conduct
of
all
appropriate
inquiries.
623
Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
3
Excerpt
Text:
The
proposed
standard
should
permit
a
qualified
opinion
as
to
the
existence
or
potential
significance
of
"
data
gaps."

The
proposed
rule
requires
environmental
professionals
to
include
in
the
inquiries
report
an
identification
of
the
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.
The
report
must
also
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.
[
69
Fed.
Reg.
52560]

As
a
practical
matter,
it
quite
simply
may
not
be
feasible
for
an
auditor
to
know
what
information
the
auditor
lacks,
or
to
be
able
to
appreciate
the
significance
of
information
not
in
the
auditor's
possession.
We
believe
it
is
EPA's
intention
not
to
have
this
issue
become
a
source
of
liability
to
auditing
professionals.
Some
additional
clarification
on
the
nature
of
the
opinion
required
of
the
auditor
will
avoid
costly
and
unnecessary
litigation
between
the
auditor
and
the
users
of
the
assessment
report
over
responsibility
for
data.
Lack
of
clarity
on
this
point
will
likely
significantly
drive
up
costs
of
site
assessments
as
landowners
seek
to
fill
data
gaps
with
Phase
IItype
intrusive
sampling
activities
as
assessors
will
be
reluctant
to
reach
conclusions
absent
exhaustive
information.

This
is
particularly
true
in
an
imperfect
world
where
sources
of
relevant
information
may
be
long
gone
from
the
scene
by
the
time
the
auditor
comes
in
with
limited
time
and
budget
to
perform
a
reasonable
assessment,
e.
g.,
the
ability
to
track
down
prior
owners
or
operators
in
situations
of
multiple
prior
occupiers
of
a
property.
Likewise,
in
the
Northeastern
US,
where
industrialization
has
existed
for
centuries,
the
data
gaps
can
be
substantial
and
the
significance
of
such
data
gaps
can
range
from
immaterial
to
extremely
consequential.
The
approach
taken
will
likely
drive
extensive
sampling
in
Phase
II
investigations,
and
even
the
ASTM
Phase
II
guidelines
are
not
adequate
for
a
potential
buyer
to
be
able
to
ascertain
whether
a
Phase
II
investigation
is
sufficient
to
qualify
for
the
liability
defenses.

We
recommend
that
the
environmental
professional
be
required
to
disclose
information
gaps
and
to
assess
the
potential
significance
of
data
gaps
only
to
the
extent
known
or
reasonably
anticipated
by
the
environmental
professional.

Response:
The
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported
and
commented
upon.
EPA
agrees
with
the
commenter
that
if
an
environmental
professional
is
not
aware
that
624
information
is
missing,
he
or
she
cannot
comment
on
it.
However,
the
environmental
professional
must
gather
the
information
required
to
meet
the
objectives
and
performance
factors
in
the
regulation.
The
environmental
professional
should
be
able
to
identify
whether
or
not
the
required
information
is
available
or
missing.
The
preamble
to
the
proposed
rule
stated
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."

Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
13
Excerpt
Text:
Decision
Not
to
Require
Sampling
and
Analysis.
EPA
specifically
requested
public
comment
on
the
"
decision
not
to
require
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
regulations."
69
Fed.
Reg.
at
52568.
USWAG
concurs
with
that
decision.
However,
proposed
section
312.20(
f)
and
the
preamble
introduces
confusion
by
stating
that
"
it
may
be
necessary
to
conduct
sampling
and
analysis
to
..
.
fully
comply
with
the
statutory
requirements
for
the
CERCLA
liability
protections."
Ibid.
If
Congress
delegated
to
EPA
prescribing
the
standards
and
practices
for
AAI
and
sampling
and
analysis
is
not
part
of
those
standards
and
practices,
how
can
failure
to
conduct
sampling
and
analysis
as
part
of
AAJ
ever
be
a
violation
of
the
statutory
requirements
for
the
CERCLA
liability
protections?
The
implication
of
EPA's
statement
is
that
there
is
a
statutory
requirement
for
sampling
and
analysis,
at
least
in
some
circumstances,
and
that
the
regulation
must
therefore
include
such
a
requirement.
But
in
fact,
nothing
in
the
statute
imposes
any
such
requirement,
and
EPA
has
correctly
omitted
such
a
requirement
from
the
regulation.
EPA
should
delete
the
final
sentence
in
section
312.20(
f)
and
should
state
categorically
that
whatever
the
advantages
sampling
and
analysis
miglit
provide
in
explaining
existing
data
gaps,
sampling
and
analysis
is
not
required
to
satisfy
AAI.
625
Response:
EPA
continues
to
believe
that
sampling
and
analysis
may
be
the
best
approach
for
addressing
data
gaps
and
allowing
property
owners
to
fully
comply
with
the
statutorily­
imposed
continuing
obligations
including
stopping
on­
going
releases
and
undertaking
appropriate
care.
The
statutory
criteria
for
all
appropriate
inquiries
include
"
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."

Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
7
Excerpt
Text:
­
The
proposal
to
not
require
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
standards.

­­
Intertox
agrees
with
the
U.
S.
EPA,
that
sampling
and
analysis
should
not
be
a
part
of
the
all
appropriate
inquiry
process.
There
is
no
site
for
which
all
information
can
be
acquired,
ascertained,
or
determined.
There
will
always
be
data­
gaps.
While
sampling
and
analysis
is
a
valid
environmental
activity,
it
should
remain
as
it
traditionally
has,
a
part
of
the
Phase
II
environmental
site
assessment
process.
The
principal
issue
here
is
that
if
sampling
and
analysis
is
accepted
as
a
data­
gap
preventing
tool,
then
the
U.
S.
EPA
will
have
to
develop
rules
and
procedures
for
sampling
and
analysis.
We
believe
that
well­
developed
and
debated
sampling
and
analysis
procedures
already
exist
and
that
the
U.
S.
EPA
should
be
not
involved
in
defining
an
"
all
appropriate"
sampling
and
analysis
procedure
for
the
environmental
site
assessment
process.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
626
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
MBA
Comment
Number:
0401
Excerpt
Number:
3
Excerpt
Text:
MBA
supports
the
concept
of
allowing
the
environmental
professional,
exercising
his
or
her
judgment,
to
advise
the
user
when
the
circumstances
may
be
appropriate
for
limited
sampling,
if
at
all,
as
part
of
the
overall
due
diligence
process.

As
a
participant
on
the
advisory
committee,
MBA
recognizes
the
thoughtful
and
important
discussions
that
occurred
during
the
drafting
process,
surrounding
the
use
of
sampling.
In
the
discussion
on
how
data
gaps
may
be
addressed
when
conducting
AAI,
it
was
acknowledged
that,
despite
good
faith
efforts
by
the
environmental
professional
and
the
prospective
purchaser
to
gather
information,
data
gaps
may
still
exist.
EPA,
and
the
advisory
committee,
considered
sampling
as
an
option
used
at
the
discretion
of
the
environmental
professional
and
user,
based
on
the
totality
of
circumstances,
information
already
gathered,
and
a
review
of
any
data
gaps.
Sampling
is
simply
one
tool
that
may
help
the
environmental
professional
convey
a
fuller
picture
of
the
conditions
on
the
property
[
Footnote:
Please
note,
EPA
explicitly
states
"
Proposed
§
312.20(
f)
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis."
Preamble
to
proposed
rule
section
II.
F.
7,
Federal
Registrar,
40
CFR
Part
312,
August
26,
2004].

As
EPA
stated
clearly
in
numerous
sections
of
the
preamble,
sampling
is
not
required
while
conducting
AAI
[
Footnote:
See
preamble
to
proposed
rule
sections
II.
F.
7,
III.
O,
and
IV,
Id.].
The
proposed
regulation
also
addresses
the
role
of
sampling
during
the
discussion
of
data
gaps,
in
Section
C
­
Standards
and
Practices,
stating
that
sampling
"
may
be
conducted
to
develop
information
to
address
data
gaps.[
Footnote:
See
§
312.20(
f),
emphasis
added.]."
At
no
other
point
in
AAI
is
sampling
mentioned
and
there
is
no
language
requiring
an
environmental
professional
to
conduct
sampling.
EPA
is
not
requiring
sampling
to
successfully
complete
AAI
and
MBA
agrees
with
this
position.
627
Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
rule's
provisions.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
9
Excerpt
Text:
Instead,
while
the
Proposed
Rule
does
not
mandate
sampling
and
testing
to
address
potential
data
gaps,
its
ambiguous
approach
to
many
of
the
content
requirements
in
the
AAI
report
virtually
necessitates
such.
In
addition,
EPA
actually
states,
in
the
regulation
that
although
sampling
and
testing
are
not
needed,
they
may
be
conducted
in
order
to
fill
in
data
gaps.
Furthermore,
the
EP's
report
must
include
an
opinion
as
to
additional
appropriate
investigation,
again
leading
the
inquirer
to
sampling
and
testing.
Lastly,
the
Proposed
Rule
requires
the
HP
and
prospective
purchaser
consider
all
the
information
in
the
report
to
ascertain
the
potential
presence
of
a
release
or
threatened
release
­
again,
leading
the
EP
to
sampling
and
testing.
Sampling
and
testing
are
costly
and
generally
not
undertaken
at
the
initial
evaluation
of
a
property.
This
cost
and
burden
would
be
compounded
by
the
fact
that
under
the
Proposed
Rule,
a
prospective
purchaser
would
have
already
expended
a
great
deal
of
money
and
resources
in
preparing
the
AA1
report
itself.
As
stated
previously,
in
essence,
the
Proposed
Rule
has
elevated
a
Phase
I
ESA
to
what
would
traditionally
be
a
Phase
II
ESA.
The
costs
and
burdens
of
such
will
not
make
redevelopment
of
brownfield
sites
attractive.

Furthermore,
once
sampling
is
undertaken,
how
much
sampling
and
testing
is
enough?
What
protection
under
the
rule
is
afforded
a
potential
purchaser
from
a
overzealous
engineer?

Response:
The
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported
and
commented
upon.

Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
628
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
5
Excerpt
Text:
4)
Proposed
provisions
for
addressing
data
gaps.

a)
Page
#
52578
b)
View:
I
support
addressing
data
gaps.
Specifically
the
EP
should
be
required
to
comment
on
the
presence
of
the
data
gap(
s),
and
provide
an
opinion
on
the
relevance
and/
or
potential
risk
to
the
property
based
on
the
identified
data
gap.
Under
the
current
practice
environmental
consultants
often
ignore
data
gaps
and
do
not
consider
their
potential
risk
to
the
property.

c)
Assumptions:
The
absence
of
information
does
not
equate
to
an
absence
of
risk.

d)
Burden:
Immaterial.
The
consultant
simply
needs
it
identify
the
missing
information
and
comment
upon
the
risk
this
missing
information
creates.

e)
Alternative:
N/
A.

5)
Proposal
to
not
require
sampling
a)
Page
#
52571
b)
View:
Sampling
should
not
be
mandated
into
the
Phase
I
AAI
Process.
Not
all
properties
should
require
sampling
during
the
AAI
process.
Undeveloped
or
non­
suspect
properties
carry
much
less
risk
and
sampling
is
not
practical.
If
sampling
is
appropriate,
often
the
scope
of
work
cannot
be
adequately
developed
until
after
the
Phase
I
report
is
completed.
If
little
is
known
about
the
history
of
an
industrial
property,
sampling
conducted
may
be
inadequate.
For
example,
sampling
may
be
conducted
on
the
eastern
side
for
a
UST,
only
at
the
conclusion
of
the
Phase
I
to
find
there
was
another
UST
or
Septic
System
on
the
western
side
also.

c)
Assumptions:
Sampling
should
not
be
mandated
during
the
Phase
I
and/
or
based
on
incomplete
information.

d)
Burden:
Segregation
of
the
Phase
I
and
sampling
(
Phase
II)
may
slow
down
the
real
estate
transaction
process.
However
a
proper
AAI
compliant
Phase
I
would
recommend
Phase
II
sampling
where
appropriate
and
therefore
the
AAI
process
would
achieve
the
performance
objectives
and
properly
evaluate
the
risks.
629
Response:
The
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported
and
commented
upon.

Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Thornhill,
James
Comment
Number:
0414
Excerpt
Number:
1
Excerpt
Text:
While
the
significance
of
data
gaps
should
be
considered
by
the
consultant,
sampling
should
not
be
required
for
all
appropriate
inquiries
to
be
satisfied
even
if
data
gaps
are
present.
Although
the
proposed
rule
provides
that
sampling
may
be
performed
to
develop
information
to
address
data
gaps
in
Section
312.20(
f),
comments
as
to
whether
sampling
should
be
required
were
requested
on
page
52,560
of
the
preamble.
There
are
certainly
times
when
Phase
II
sampling
is
appropriate
based
upon
the
findings
of
a
Phase
I.
The
difficulty
with
considering
sampling
to
fill
data
gaps
is
that
there
is
no
guidance
for
the
user
as
there
is
a
gap
in
information.
For
example,
if
there
is
a
20
year
gap
in
the
history
of
the
use
of
the
property,
does
a
purchaser
test
soil,
groundwater
and
surface
water
for
all
possible
contaminants
across
the
entire
property?
Does
the
purchase
have
to
conduct
a
survey
for
subsurface
anomalies
to
search
for
tanks
and
drums?
This
procedure
would
run
counter
to
the
customary
practice
of
sampling
when
warranted
due
to
concerns
identified
in
the
due
diligence
such
as
the
presence
of
a
past
use
that
may
have
utilized
chlorinated
solvents.
If
a
purchaser
has
made
a
good
faith
effort
to
review
readily
available
information,
he
or
she
should
not
have
to
spend
tens
of
thousands
of
dollars
to
eliminate
the
possible
unknowns
because
information
regarding
a
property
is
simply
not
available
for
a
period
of
time.
630
Response:
The
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported
and
commented
upon.
EPA
agrees
with
the
commenter
that
if
an
environmental
professional
is
not
aware
that
information
is
missing,
he
or
she
cannot
comment
on
it.
However,
the
environmental
professional
must
gather
the
information
required
to
meet
the
objectives
and
performance
factors
in
the
regulation.
The
environmental
professional
should
be
able
to
identify
whether
or
not
the
required
information
is
available
or
missing.
The
preamble
to
the
proposed
rule
stated
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."

Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
1
Excerpt
Text:
Sampling
to
address
data
gaps
is
not
practicable.
What
do
you
test
for?
Where
do
you
sample?
A
very
basic
sampling
routine
consisting
of
three
soil
borings
with
soil
and
groundwater
sampling
for
the
basic
chemicals
of
concern
identified
in
most
Phase
I
ESA's
costs
between
$
3500
to
$
6000.
These
costs
far
exceed
EPA's
estimation
of
$
1439.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
The
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
631
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
4
Excerpt
Text:
No
Phase
II
­
My
understanding
is
that
the
committee
determined
that
the
completion
of
phase
II
investigations
would
not
be
required
in
order
to
satisfy
requirements
for
AAI.
I
recommend
that
this
be
more
expressly
stated
in
the
rule.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
However,
the
preamble
also
clearly
states
that
the
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
5
Excerpt
Text:
§
312.20
All
Appropriate
Inquires
(
f)
632
In
§
312.20
All
Appropriate
Inquires
(
f),
the
last
sentence
in
this
paragraph
"
Sampling
and
analysis
may
be
conducted
to
develop
information
to
address
data
gaps"
should
be
deleted.

Rationale:

­
Providing
direction
for
sampling
and
analysis
is
beyond
the
scope
of
this
regulation
and
is
not
addressed
in
ASTM
1527.
The
mere
suggestion
of
conducting
sampling
and
analysis
to
address
data
gaps
will
inevitably
drive
the
environmental
professional
to
recommend
sampling
and
analysis
to
fill
a
data
gap.
The
frequency
at
which
sampling
and
analysis
will
be
recommended
will
automatically
increase
the
costs
of
environmental
site
assessments.
An
environmental
professional
inherently
knows
that
sampling
and
analysis
is
a
means
of
characterizing
the
site.
Furthermore,
denial
of
this
recommendation
on
behalf
of
the
defendant
would
render
the
innocent
landowner
defense
insubstantial.

Response:
Section
312.20(
g)
of
the
final
rule
points
out
that
one
way
to
address
data
gaps
may
be
to
conduct
sampling
and
analysis.
However,
the
preamble
also
clearly
states
that
the
final
regulation
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
The
regulation
only
notes
that
sampling
and
analysis
may
be
conducted,
where
appropriate,
to
obtain
information
to
address
data
gaps.
The
Agency
notes
that
sampling
and
analysis
may
be
valuable
in
determining
the
possible
presence
and
extent
of
potential
contamination
at
a
property.
Such
information
may
be
valuable
for
determining
how
a
landowner
may
best
fulfill
his
or
her
post­
acquisition
continuing
obligations
required
under
the
statute
for
obtaining
protection
from
CERCLA
liability.
However,
the
Agency
does
not
believe
that
the
all
appropriate
inquiries
standards
should
require
sampling
and
analysis
given
that
this
type
of
investigation
is
conducted
prior
to
the
acquisition
of
a
property
and
generally
represents
an
initial
investigation
into
the
environmental
conditions
of
a
property.
Further
investigation
of
the
environmental
conditions,
including
the
conduct
of
sampling
and
analysis
may
be
more
appropriate
after
this
initial
investigation
and
more
appropriately
imposed
on
owners
of
potentially
contaminated
properties
and
not
upon
prospective
purchasers.
633
3.12.3
The
Agency
Should
Clarify
How
Many
Years
without
Data
Constitute
a
Data
Gap
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
2
Excerpt
Text:
Although
the
term
"
data
gap"
is
defined
in
§
312.10
to
include
a
lack
of
or
inability
to
obtain
information,
it
does
not
define
how
many
years
without
data
constitute
a
"
data
gap".

Response:
Data
gaps
are
generally
defined
as
missing
information.
The
term
is
not
limited
by
any
particular
period
of
time.
The
comment
seems
only
to
have
relevance
to
data
gaps
associated
with
historical
information
such
as
previous
owners
of
a
property.
In
such
cases,
the
environmental
professional
must
determine
whether
the
missing
information,
due
to
the
type
of
information
or
due
to
the
length
of
time
over
which
information
is
missing,
whether
or
not
the
lack
of
information
affects
his
or
her
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

EPA
notes
that
the
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
what
data
gaps
should
be
reported
and
commented
upon.
EPA
understands
that
if
an
environmental
professional
is
not
aware
that
information
is
missing,
he
or
she
cannot
comment
on
it.
However,
the
environmental
professional
must
gather
the
information
required
to
meet
the
objectives
and
performance
factors
in
the
regulation.
The
environmental
professional
should
be
able
to
identify
whether
or
not
the
required
information
is
available
or
missing.
The
written
report
should
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.

Commenter
Organization
Name:
Zutz
Comment
Number:
0104
Excerpt
Number:
2
Excerpt
Text:
It
is
our
opinion
the
definition
of
a
data
gap
is
inadequate.

Here's
my
definition
of
a
data
gap
­
a
lack
of
undefined
historical
records
for
an
undefined
period
that
later
proves
significant,
but
not
at
the
time
of
conducing
the
Phase
I
ESA.
Unless
the
historical
sources
review
under
Section
312.24
states
a
frequency
for
review,
there
may
always
be
one
additional
record
that
may
later
prove
significant.
For
example,
should
city
street
directories
be
reviewed
at
a
minimum
of
5
year
intervals
(
current
ASTM
1527­
00
standard)
,
or
each
year?
If
city
directories
were
not
made
for
a
smaller
community,
isn't
the
absence
of
634
directories
a
data
gap?
How
frequent
should
aerial
photos
be
reviewed?
Every
decade?
And
won't
there
always
be
a
data
gap
of
aerial
photos
prior
to
manned
flight?
Likewise,
if
there
are
infrequent
real
estate
records
(
due
to
unrecorded
or
infrequent
transfer
of
the
property),
won't
there
be
a
data
gap
of
real
estate
records?

If
the
proposed
rules
are
going
to
define
a
data
gap,
then
Section
312.24
should
state
the
minimum
frequency
of
historical
reviews.

Response:
Please
see
response
to
comment
number
0093,
excerpt
2.

Commenter
Organization
Name:
Anthony,
Tony,
et.
al.
Comment
Number:
0292
Excerpt
Number:
2
Excerpt
Text:
We
recommend
the
definition
of
Data
Gap
be
revised
to
reflect
the
following:

­
A
lack
or
absence
of
property
infprmation
spanning
a
time
period
greater
than
five
years
would
qualify
as
a
data
gap.

Without
a
specific
time
interval,
any
time
break
in
information,
no
matter
how
short
the
duration,
would
be
considered
a
data
gap
and
would
need
to
be
addresses
under
312.20
(
f).

Response:
Please
see
response
to
comment
number
0093,
excerpt
2.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
19
Excerpt
Text:
DATA
GAPS
1)
The
proposed
rule
requires
the
EP
to
identify
data
gaps
in
their
inquiries,
to
explain
what
actions
they
took
to
fill
those
gaps,
and
to
explain
the
significance
of
the
gaps
to
the
EP's
determination
as
to
whether
the
subject
property
may
be
contaminated.
FAA
would
like
EPA
to
clarify
its
policy
on
data
gaps
in
historic
information.

For
example,
the
proposed
standard
to
review
historical
sources
of
information
requires
the
EP
to
search
as
far
back
as
the
property
was
used.
This
exceeds
the
previous
50­
year
search
limit
specified
by
ASTM
E1527­
2000.
Many
rural
areas
may
not
have
recorded
information
any
older
than
the
previous
50­
year
limit.
If
the
EP
cannot
identify
historical
sources
of
information
that
explain
uses
of
and
activities
at
the
property
more
than
50
years
ago,
would
the
EP
identify
this
as
a
data
gap?
Is
historical
information
older
than
50
years
significant,
and
will
it
help
the
EP
635
determine
the
threat
or
potential
threat
of
release
at
the
property?

Response:
Please
see
response
to
comment
number
0093,
excerpt
2.

EPA
notes
that
the
commenter
is
incorrect
in
stating
that
the
ASTM
E1527­
2000
standard
requires
that
an
environmental
professional
search
historical
records
only
as
far
back
as
50
years.
The
standard
requires
a
search
as
far
back
as
the
property's
obvious
first
developed
use,
or
back
to
1940,
whichever
is
earlier
(
see
section
7.3.2
"
Uses
of
the
Property"
of
ASTM
E1527­
2000).

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
10
Excerpt
Text:
­
It
is
my
understanding
that
an
adequate
AAI
document
may
not
be
all
inclusive
of
every
scrap
of
information
that
can
be
collected
but
rather
a
presentation
that
the
environmental
professional
has
concluded
meets
the
intent
of
the
rule.
It
is
theoretically
possible
for
a
data
gap
to
be
one
day.
But
without
a
reasonable
guideline
of
how
to
determine
what
constitutes
a
data
gap
the
environmental
professional
will
have
no
leg
to
stand
on
if
there
is
information
indicating
a
release
or
potential
release
(
I
prefer
potential
release
to
threatened
release)
that
was
available
but
not
reviewed.
For
example,
street
(
criss­
cross)
directories
are
available
for
some
areas
on
a
semiannual
basis.
Reviewing
these
for
the
property
and
surrounding
area
can
be
very
time
consuming,
adding
many
hours
of
research
time.
ASTM
Standard
Practice
1527
uses
5
years
as
a
reasonable
interval.
I
hope
that
EPA
accepts
this.
It
should
Response:
Please
see
response
to
comment
number
0093,
excerpt
2.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
17
Excerpt
Text:
­
Data
gap:
A
data
gap,
if
it
results
in
the
non­
discovery
of
a
release,
could
be
as
brief
as
one
day.
In
many
situations
data
is
available
but
the
volume
available
is
such
that
reviewing
it
would
defeat
"
reasonable
cost".
"
Good
faith"
as
a
defense
is
easily
defeated.
A
reasonable
period
of
time
should
be
set,
e.
g.,
the
five
year
period
in
1527.

Response:
Please
see
response
to
comment
number
0093,
excerpt
2.
636
3.12.4
Review
of
Information
Ordered
Closed
by
Courts
Commenter
Organization
Name:
Hodgson,
Rory
Comment
Number:
0208
Excerpt
Number:
1
Excerpt
Text:
What
provisions
are
proposed
for
the
review
of
information
that
has
been
ordered
closed
by
the
courts?
Should
it
be
emphasized
that
the
Environmental
Professional
is
a
fiduciary
serving
in
a
position
of
"
trust"
and
can
only
render
informed
judgments
when
all
data
gaps
are
removed?

Response:
EPA
notes
that
the
rule
requires
environmental
professionals
to
record
and
comment
only
on
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.
The
environmental
professional
is
required
to
exercise
discretion
in
determining
which
data
gaps
should
be
reported
and
commented
upon.
The
environmental
professional
must
gather
the
information
required
to
meet
the
objectives
and
performance
factors
in
the
regulation.
The
environmental
professional
should
be
able
to
identify
whether
or
not
the
required
information
is
available
or
missing.
If
information
ordered
closed
by
a
court
is
essential
to
the
investigation
and
the
environmental
professional
cannot
obtain
the
necessary
information
from
any
other
source,
then
the
missing
or
unavailable
information
should
be
noted
as
a
data
gap.
The
written
report
should
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.
637
3.13
Shelf
Life
of
the
AAI
Report
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
3
Excerpt
Text:
In
regards
to
§
312.20.3,
does
the
180­
day
clock
start
at
the
most
conservative
point
or
least
conservative
point?
For
example,
does
the
180­
day
clock
start
when
the
owner
is
interviewed
or
when
the
environmental
professional
makes
their
declaration?
These
dates
could
differ
by
four
weeks
or
more.

Response:
The
final
rule
requires
that
certain
aspects
of
the
all
appropriate
inquiries
investigation
be
updated
if
the
investigation
was
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property
(
or
the
date
on
which
the
prospective
landowner
takes
title
to
the
property)
to
ensure
that
an
all
appropriate
inquiries
investigation
accurately
reflects
the
current
environmental
conditions
at
a
property.
To
increase
the
potential
that
information
collected
about
the
conditions
of
a
property
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
final
rule
requires
that
many
of
the
components
of
the
previous
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
on
which
the
property
is
acquired
are:
 
interviews
with
past
and
present
owners,
operators,
and
occupants
(
§
312.23);
 
searches
for
recorded
environmental
cleanup
liens
(
§
312.25);
 
reviews
of
federal,
tribal,
state,
and
local
government
records
(
§
312.26);
 
visual
inspections
of
the
facility
and
of
adjoining
properties
(
§
312.27);
and
 
the
declaration
by
the
environmental
professional
(
§
312.21(
d)).

Also,
the
final
rule
retains
the
proposed
requirement
that
in
all
cases
where
a
prospective
landowner
is
using
previously
collected
information,
the
all
appropriate
inquiries
for
the
current
purchase
must
be
updated
to
include
a
summary
of
any
relevant
changes
to
the
conditions
of
the
property
and
any
specialized
knowledge
of
the
prospective
landowner.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
16
Excerpt
Text:
FAA
suggests
that
EPA
consider
an
abbreviated
180­
day
requirement
for
re­
assessment,
including:

­
Updating
release
data,
as
new
releases
may
have
occurred
during
the
180­
day
period
638
­
Conducting
interviews
by
phone
with
the
current
landowners
or
operators
regarding
changes
in
conditions
and
new
activities
at
the
site
since
the
initial
site
visit
and
interviews
­
Reviewing
federal,
state,
tribal,
and
local
government
databases
that
have
been
updated
since
the
initial
AAI
were
completed.

Response:
The
final
rule
requires
that
certain
aspects
of
the
all
appropriate
inquiries
investigation
be
updated
if
the
investigation
was
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property
(
or
the
date
on
which
the
prospective
landowner
takes
title
to
the
property).
EPA
chose
this
period
of
time
to
ensure
that
an
all
appropriate
inquiries
investigation
accurately
reflects
the
current
environmental
conditions
at
a
property.
The
Agency
also
believes
that
requiring
the
investigation
to
be
updated
within
that
timeframe
increases
the
potential
that
information
collected
about
the
conditions
of
a
property
will
be
accurate,
as
well
as
increases
the
potential
that
opinions
and
judgments
regarding
the
environmental
conditions
at
a
property
that
are
included
in
an
all
appropriate
inquiries
report
will
be
based
on
current
and
relevant
information.

EPA
is
unsure
what
the
commenter
is
suggesting
exactly.
If
the
commenter
is
providing
suggestions
for
how
certain
aspects
of
the
investigation
may
be
updated,
the
Agency
agrees
that
the
procedures
listed
by
the
commenter
are
sufficient.
If
the
commenter
is
suggesting
that
only
the
interviews,
government
records
searches,
and
documentation
of
on­
going
releases
portions
of
the
all
appropriate
inquiries
investigation
should
be
updated,
EPA
disagrees
with
the
commenter.
EPA
believes
that
the
following
types
of
information
must
be
updated
within
180
days
of
the
date
of
acquisition
to
ensure
that
the
investigation
is
current
and
accurate:
 
interviews
with
past
and
present
owners,
operators,
and
occupants
(
§
312.23);
 
searches
for
recorded
environmental
cleanup
liens
(
§
312.25);
 
reviews
of
federal,
tribal,
state,
and
local
government
records
(
§
312.26);
 
visual
inspections
of
the
facility
and
of
adjoining
properties
(
§
312.27);
and
 
the
declaration
by
the
environmental
professional
(
§
312.21(
d)).

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
3
Excerpt
Text:
­
The
proposal
to
establish
the
date
on
which
title
is
transferred
on
a
property
as
the
date
on
which
the
property
is
acquired.

­­
Intertox
agrees
that
property
acquisition
should
be
considered
as
the
date
on
which
a
title
document
is
recorded
at
the
county
assessor's
office
(
or
similar
agency
as
may
differ
from
state
to
state).
We
believe
there
is
general
consensus
among
environmental
professionals
that
property
acquisition
begins
when
a
title
document
is
recorded
as
previously
stated.
639
Response:
The
Agency
continues
to
believe
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.
EPA
notes
that
this
is
not
the
same
as
the
date
of
recordation.
They
are
two
very
distinct
occurrences.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
12
Excerpt
Text:
Age
of
Report:

a)
Page
#
52577
b)
View:
A
standard
on
how/
when
a
Phase
I
is
considered
current
is
strongly
supported.
The
Phase
I
AAI
Standard
is
proposed
to
increase
the
quality
and
value
of
a
Phase
I
report.
To
preserve
quality
of
the
AAI
process
the
Phase
I
reports
should
be
current.
Reports
being
considered
valid
and
current
for
up
to
180
days
is
supported.
With
certain
aspects
of
the
reports
being
updated,
reports
can
be
considered
current
up
to
365
days.
c)
Assumptions:
Site
conditions
change
and
a
re­
inspection
of
the
property
may
show
materially
different
conditions
then
the
original
report
detailed.
Specifically
if
the
property
is
a
suspect
operation,
onsite
operations
and
property
conditions
can
change
rapidly.
d)
Burden:
The
purchasers
of
real
estate
will
be
required
to
obtain
current
reports,
and
not
rely
on
existing
reports
from
2
or
3
years
ago.
Costs
of
real
estate
transactions
will
increase,
as
new
reports
will
be
required
on
a
greater
frequency.

Response:
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
retaining
the
proposed
provision
that
all
appropriate
inquiries
be
conducted
within
one
year
prior
to
the
date
on
which
the
property
is
acquired.
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,
the
final
rule
retains
the
requirement
that
several
of
the
components
of
the
inquiries
be
updated
within
180
days
prior
to
the
date
on
which
the
property
is
acquired
(
i.
e.,
the
date
the
landowner
obtains
title
to
the
property).

Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
6
640
Excerpt
Text:
Additionally,
I
would
like
to
commend
the
EPA
and
the
negotiated
rule
making
committee,
for
clearly
allowing
the
use
of
previous
assessments,
provided
they're
in
compliance
with
existing
standards
or
practice,
and
updated
within
one
year.

This
will
do
a
great
deal
to
keep
the
commercial
real
estate
market
place
operating
efficiently
and
avoid
what
might
be
high
additional
costs
if
duplicate
efforts
were
required
by
this
rule.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.
641
3.13.1
Use
of
Information
Collected
for
Previous
Inquiries
Completed
for
the
Same
Property
Commenter
Organization
Name:
Pike,
Kenneth
R
Comment
Number:
0116
Excerpt
Number:
1
Excerpt
Text:
Transfer
of
AAI
to
Another
Party
(
Preamble
pg.
52557)
The
proposed
rule
allows
for
a
"
second
party"
acquiring
a
property
to
use
the
results
of
inquiries
 
conducted
by
a
"
first
party".
The
proposed
rule
would
also
require
that
the
"
second
party"
update
the
inquiries
and
the
report
to
include
any
relevant
specialized
knowledge
held
by
the
current
purchaser
and
the
environmental
professional.

Comment:
The
Environmental
Consultant
would
potentially
be
exposed
to
undue
liability
if
the
second
party
did
not
obtain
the
Consultant's
permission
(
or
provide
remuneration)
for
reliance
on
the
AAI
Report.
Also,
if
an
adverse
environmental
condition
not
recognized
in
the
AAI
Report
was
identified
by
the
second
party
subsequent
to
purchase,
the
Consultant
could
be
held
liable
to
both
the
first
party
and
the
second
party
for
the
adverse
environmental
condition
because
they
both
relied
on
the
contents
of
the
AAI
Report.
If
the
second
party,
for
whatever
reason,
litigated
against
the
first
party
(
as
a
previous
owner)
because
of
the
adverse
environmental
condition,
and
both
parties
relied
on
the
Consultant's
AAI
Report,
the
Consultant
would
have
a
conflict
as
to
which
party
to
represent
in
the
litigation.
This
could
potentially
leave
both
parties/
purchasers
without
representation
in
litigation
because
the
Consultant
could
not
represent
both
sides
in
such
an
argument.

Recommendation:
Because
adverse
environmental
conditions
can
escape
detection
in
even
the
most
thorough
and
comprehensive
property
assessments
and
a
purchaser's
only
recourse
is
often
litigation,
it
is
recommended
that
second
party
purchasers
not
be
allowed
to
rely
on
the
contents
of
a
Consultant's
AAI
Report
performed
for
a
previous
purchaser.
Even
if
the
Consultant
can
prove
that
the
adverse
environmental
condition
could
not
have
been
detected
during
the
AAI
and
should
therefore
not
be
held
liable
for
not
detecting
it,
the
legal
costs
to
defend
against
such
claims
could
be
damaging.
The
second
party/
purchaser
should
afford
to
conduct
its
own
AAI
using
a
Consultant
of
its
choosing.
The
second
Consultant
would
have
information
from
the
first
Consultant's
AAI
Report
to
review,
disseminate
and
incorporate
into
their
own
AAI
Report
on
which
the
second
party
may
fully
rely
upon
without
exceptions.

Response:
The
final
rule
allows
for
the
use
of
previously
conducted
all
appropriate
inquiries,
as
long
as
the
previously
conducted
inquiries
were
conducted
in
compliance
with
the
statute
and
the
all
appropriate
inquiries
for
the
current
purchase
are
updated
to
include
a
summary
of
any
relevant
changes
to
the
conditions
of
the
property
and
any
specialized
knowledge
of
the
prospective
landowner.
EPA
continues
to
recognize
that
it
is
not
sufficient
to
wholly
adopt
previously
conducted
all
appropriate
inquiries
for
the
same
property
without
any
642
review.
Certain
aspects
of
the
all
appropriate
inquiries
investigation
are
specific
to
the
current
prospective
landowner
and
the
current
purchase
transaction.
Therefore,
the
final
rule
requires
that
each
all
appropriate
inquiries
investigation
include
current
information
related
to:
 
any
relevant
specialized
knowledge
held
by
the
current
prospective
landowner
and
the
environmental
professional
responsible
for
overseeing
and
signing
the
all
appropriate
inquiries
report
(
i.
e.,
requirements
of
§
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
§
312.29)

With
regard
to
the
commenter's
concern
regarding
liability
issues
associated
with
using
the
results
of
an
all
appropriate
inquiries
investigation
performed
by
another
party,
these
issues
are
beyond
the
scope
of
today's
rulemaking
and
are
best
addressed
by
the
parties
involved.
Whenever
using
results
provided
by
another
party,
an
environmental
professional
should
evaluate
the
accuracy
and
usefulness
of
the
information
prior
to
using
it
or
incorporating
such
information
into
a
current
investigation.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
10
Excerpt
Text:
The
proposed
provisions
for
using
previously
conducted
all
appropriate
inquiries
(
page
52556­
52557).

It
is
NSPE's
recommendation
that
EPA
continue
to
require
the
previously
conducted
title
searches,
as
well
as
all
other
data
relative
to
the
all
appropriate
inquiries
requirement,
be
updated
on
a
regular
basis.
EPA
should
also
emphasize
the
requirement
that
the
data
be
collected
within
180
days
prior
to
the
acquisition
of
the
property.
Many
prospective
purchasers,
in
an
effort
to
save
time
and
cost,
obtain
previously
performed
data
and
reports,
and
force
environmental
professionals
to
sign
"
reliance
letters,"
thereby
allowing
these
third
parties
to
rely
upon
the
data.
This
data
may
be
more
than
180
days
old
and
prepared
for
a
different
client.
The
liability
implications
on
the
environmental
professional
are
extremely
important
and
this
part
of
the
proposed
rule
will
go
far
in
protecting
the
environmental
professional
from
third
party
liability.

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
4
Excerpt
Text:
4
Steve
Myers
Previous
Phase
I's
312.20(
b)(
1)
Is
the
intent
of
this
paragraph
to
invalidate
all
previous
Phase
I
643
work
done
previously
to
this
proposed
rule
becoming
official
if
the
proposed
rule
does
become
official?
That
is
how
it
reads.

Response:
It
is
not
the
Agency's
intent
to
disallow
the
use
of
information
contained
in
previous
inquiries,
if
the
environmental
professional
and
the
prospective
landowner
find
the
previously
collected
information
to
be
accurate
and
valid.
However,
EPA
continues
to
believe
that
information
collected
as
part
of
a
prior
all
appropriate
inquiries
investigation
for
the
same
property
should
be
updated
to
reflect
current
environmental
conditions
at
the
property
and
to
include
any
specific
information
or
specialized
knowledge
held
by
the
prospective
landowner.
The
regulatory
language
in
today's
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation.
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.

Commenter
Organization
Name:
Myers,
Steve
Comment
Number:
0242
Excerpt
Number:
5
Excerpt
Text:
5
Steve
Myers
Previous
Phase
I's
312.20(
b)(
2)
Will
soil
or
groundwater
sampling
data
performed
for
previous
'
All
Appropriate
Inquiries'
reports
also
be
invalid
after
one
year?
For
example,
if
previous
tests
have
shown
conclusively
that
the
soil
is
well
above
the
regulatory
limit
for
lead,
an
element
that
doesn't
leach
out
very
fast,
what
would
be
the
point
of
re­
sampling
the
soil
13
months
later?

Response:
Since
sampling
and
analysis
is
not
required
when
conducting
all
appropriate
inquiries,
the
use
of
the
results
of
previous
sampling
and
analysis
events
may
be
used
by
the
environmental
professional
without
being
updated
to
comply
with
the
provisions
of
the
final
rule.
However,
the
environmental
professional
should
use
his
or
her
professional
judgment
in
determining
the
adequacy
of
such
information.
644
It
is
important
for
the
all
appropriate
inquiries
investigation
to
be
completed
within
one
year
prior
to
the
date
the
purchaser
acquires
the
property.
We
point
out
that
the
final
regulation,
as
did
the
proposed
regulation,
allows
for
information
from
an
older
investigation
to
be
used
in
a
current
investigation,
however,
if
the
all
appropriate
inquiries
investigation
was
completed
more
than
a
year
prior
to
the
property
acquisition
date,
all
parts
of
the
investigation
must
be
reviewed
and
updated.
We
believe
that
a
year
is
sufficient
time
for
conditions
at
a
property
to
change.
In
particular,
in
cases
where
there
is
a
release
or
threatened
release
at
a
property,
significant
changes
to
the
environmental
conditions
of
a
property
could
change
during
the
course
of
a
year.
In
addition,
dependent
upon
the
ongoing
uses
and
ownership
of
a
property
during
the
course
of
a
one­
year
time
period,
overall
conditions
at
a
property
could
change
and
new
evidence
of
a
release
or
threatened
release
could
appear
over
that
length
of
time.
Therefore,
the
final
rule
requires
that
all
appropriate
inquiries
completed
for
a
particular
property
more
than
one
year
prior
to
the
date
of
acquisition
of
that
property,
must
be
updated
in
their
entirety.
The
final
rule
does
allow
for
the
use
of
information
contained
in
previous
inquiries,
even
when
the
inquiries
were
completed
more
than
a
year
prior
to
the
property
acquisition
date,
as
long
as
all
information
collected
and
all
aspects
of
investigation
be
updated
to
included
any
changes
that
may
have
occurred
during
the
interim.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
3
Excerpt
Text:
In
theory
there
is
no
problem
with
the
rule
as
drafted.
In
practice
however
several
issues
need
to
be
recognized.
Most
practicing
EP's
are
reluctant
to
rely
on
information
previously
collected
by
another
practitioner.
Part
of
this
is
liability
related
and
part
of
it
is
the
simple
fact
that
the
quality
of
reports
varies
widely.
Most
EP's
would
certainly
review
the
previous
work
and
use
it
to
the
extent
possible.

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
5
Excerpt
Text:
The
subsequent
use
of
a
report
by
a
third
party
not
involved
in
the
initial
transaction
would
usually
require
a
reliance
letter
from
the
EP.
That
is
an
important
concept
to
maintain.
The
report,
especially
one
involving
a
Brownfield
site,
may
have
risk
tolerance
issues
associated
with
its
preparation
that
are
not
directly
transferable
for
one
party
to
another.
While
this
shouldn't
prohibit
the
subsequent
use
of
a
report,
such
use
should
not
be
allowed
without
considered
thought
and
discussion
about
the
efficacy
of
the
report
to
645
the
new
player.

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.

Commenter
Organization
Name:
Hahn
and
Associates
Comment
Number:
0296
Excerpt
Number:
1
Excerpt
Text:
I
support
Mr.
Kenneth
Pike's
edocket
comment
(
SFUND­
2004­
0001­
0116)
with
regard
of
transfer
of
AAI
(
report)
to
another
party.
I
am
in
agreement
with
Mr.
Pike's
recommendation
as
stated,
including
that
subsequent
purchasers
(
e.
g.
second
party
purchasers)
not
be
allowed
to
rely
on
the
contents
of
an
AAI
report
prepared
for
another
party
("
first
party").

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.

Commenter
Organization
Name:
Mille
Lacs
Ojibwe
Comment
Number:
0330
Excerpt
Number:
10
Excerpt
Text:
The
Band
agrees
with
the
proposed
permitted
use
of
previously
conducted
all
appropriate
inquiries
according
to
the
proposed
provisions.
Again,
such
a
practice
allows
for
the
maximized
use
of
tribal
resources
and
is
cost
efficient.

Response:
The
regulatory
language
in
today's
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation.
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.
646
Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
6
Excerpt
Text:
Use
of
Prior
Reports.
The
proposed
approach
seems
very
adequate
but
could
be
clarified
by
specifically
allowing
the
re­
use
of
information
older
than
one
year
that
will
not
have
changed.
Even
if
a
report
does
not
completely
qualify
as
an
AAI
document,
current
industry
practice
recognizes
that
parts
of
a
prior
report
may
meet
AAI
requirements
adequately
and
be
used,
while
other
sections
of
the
report
may
not
meet
AAI
requirements
and
should
not
be
used,
or
not
used
without
further
investigation.
The
proposed
rule
does
recognize
this
better
than
is
explained
in
the
preamble.

Response:
The
regulatory
language
in
today's
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation.
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
3
Excerpt
Text:
A.
Limited
Shelf
Life
of
Previously
Collected
Information.
Proposed
section
312.20(
b)
limits
the
circumstances
under
which
previously
collected
information
maybe
used
in
a
subsequent
AAI.
As
written,
this
section
is
quite
confusing
and
can
be
simplified
without
undermining
the
goal
of
a
site
assessment
contemporaneous
with
the
property
acquisition.

First,
EPA
proposes
that
the
earlier
information
must
have
been
collected
as
part
of
an
AAI
conducted
in
compliance
with
this
regulation
as
well
as
various
CERCLA
provisions.
Proposed
§
312.20(
b)(
l).
Does
this
mean
that
information
obtained
in
the
course
of
a
prior
site
assessment
conducted
in
accordance
with
ASTM
1527­
97
or
­
00
as
the
authorized
interim
standards
cannot
be
used,
subject
to
the
updating
provisions
later
647
in
the
section?
If
that
is
EPA's
intent,
that
is
unnecessarily
wasteful.
Second,
proposed
section
312.20(
b)(
2)
requires
that
the
information
have
been
updated
within
one
year
of
the
purchase
of
the
property
and
proposed
section
312.20(
b)(
3)
goes
even
further
by
requiring
that
five
important
components
of
the
inquiries
be
updated
within
180
days
of
the
property
purchase.
See
69
Fed.
Reg.
at
52556.
There
is
no
danger
that
AAI
will
be
based
on
stale
information.
EPA
needs
to
simplify
its
discussion
of
this
issue
and,
particularly,
clarify
that
relevant
and
reliable
information
obtained
in
the
course
of
a
prior
site
assessment
can
be
used
to
satisfy
AAI,
subject
to
the
updating
provisions
in
the
rule.
It
is
not
unusual
for
property
transactions
to
take
a
long
time
to
closing,
and
imposing
unrealistic
constraints
on
the
shelf
life
of
previously
collected
information
is
unwarranted.

Response:
EPA
agrees
that
the
regulatory
language
in
the
proposed
rule
was
a
bit
confusing.
EPA
made
some
clarifications
to
the
final
rule.
The
regulatory
language
in
the
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation
(
i.
e.,
40
CFR
312).
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
5
Excerpt
Text:
Proposed
Rule
§
312.20(
b)(
2)
clarifies
that
AAI
must
be
conducted
or
updated
within
one
year
prior
to
taking
title
to
the
subject
property,
and
Proposed
Rule
§
312.20(
b)(
3)
further
clarifies
that
certain
elements
of
AAI
?
i.
e.,
interviews
with
property
owners,
operators
and
occupants,
searches
for
recorded
environmental
liens,
reviews
of
government
records,
visual
inspections
of
the
property
and
the
EP's
declaration
be
conducted
or
updated
within
180
days
prior
to
taking
title.
This
addresses
a
grey
area
in
the
ASTM
standard,
which
merely
specified
that
the
Phase
I
reports
were
presumptively
valid
for
180
days,
after
which
time
it
was
up
to
the
User
in
its
"
reasonable
judgment"
to
determine
whether
conditions
changed
at
the
subject
property
to
render
the
Phase
I
648
invalid.
This
clear
direction
will
allow
the
User
to
know
with
a
higher
degree
of
confidence
whether
its
AAI
is
valid
or
"
stale".

Nonetheless,
it
should
be
recognized
that
the
proposed
AAI
Rule
requires
additional
updates
that
are
unnecessary
under
the
ASTM
standard
at
properties
where
the
conditions
remain
unchanged
and
that
such
unnecessary
updates
will
increase
the
costs
of
AAI.

Response:
The
cost
analysis
conducted
for
the
final
rule
does
not
account
for
the
cost
savings
that
some
prospective
property
owners
may
enjoy
because
they
have
previously
conducted
all
appropriate
inquiries
reports
that
provided
some
of
the
necessary
historical
information.
The
cost
analysis
assumes
that
all
prospective
property
owners
must
undertake
the
all
appropriate
inquiries
investigation
without
the
benefit
of
previously
conducted
inquiries.
Therefore,
the
cost
estimate
provided
with
the
proposed
rule
represents
an
over­
estimate
of
potential
costs,
rather
than
an
underestimate,
as
the
commenter
suggests.

Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
3
Excerpt
Text:
§
312.20
All
Appropriate
Inquires,
(
b)
(
1)

In
§
312.20
All
Appropriate
Inquires,
(
b)
(
1)
should
be
changed
to
read:

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

­­(
1)
Such
information
was
collected
during
the
conduct
of
all
appropriate
inquiries
in
full
or
partial
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);

Rationale:

­
Any
information
obtained
during
previous
environmental
site
assessments
should
be
made
available
to
persons
in
§
312.1(
b)
regardless
of
whether
the
information
was
collected
in
full
or
partial
compliance
with
the
requirements
of
this
part.
For
example,
if
a
previous
environmental
assessment
was
conducted
in
partial
compliance
with
ASTM
1527
or
AAI
because
local
government
records
were
not
reviewed,
then
it
should
not
render
all
other
information
obtained
during
the
previous
environmental
assessment
(
such
as
Sanborns,
interviews,
visual
inspections,
etc.)
as
unavailable
for
reuse.

Response:
It
is
appropriate
to
use
the
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
649
provisions
for
all
appropriate
inquiries
and
is
updated
as
required
in
§
312.20.
In
all
cases,
the
environmental
professional
should
review
the
previously
obtained
or
collected
information
and
assess
its
accuracy
and
applicability
to
the
current
investigation.
650
3.13.2
AAIs
Conducted
by
Third
Parties
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
2
Other
Sections:
NEW
­
6.6
­
Impact
of
the
rule
on
the
cost
of
liability
insurance
Excerpt
Text:
Allowing
(
by
regs)
the
transfer
or
reliance
of
the
original
ESA
to
any
person
besides
the
one
it
was
originally
prepared
for
creates
an
undue
liability
which
will
likely
be
reflected
in
some
companies
by
increased
prices
and/
or
by
the
company
ceasing
to
provide
this
ESA
service
because
of
the
excessive
liability
versus
revenue
the
reports
generate.
Most
companies
want
to
reduce
liability,
but
by
allowing
anyone
to
use
the
original
ESA....
you
increase
that
liability
exposure.
Perhaps
a
re­
write
of
the
proposed
rule
that
would
state
it
is
"
allowable
under
the
judgment
of
the
EP
to
provide
reliance"
would
be
more
acceptable.

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
11
Excerpt
Text:
The
proposed
requirements
for
using
all
appropriate
inquiries
conducted
by
third
parties
(
page
52557­
52558).

The
all
appropriate
inquiries
issue,
as
it
pertains
to
third
parties,
seems
somewhat
inconsistent
with
the
"
previously
conducted
all
appropriate
inquiries"
issue
discussed
above.
Under
the
proposed
rule
the
information
and
data
developed
by
third
parties
may
be
used
so
long
as
it
was
updated
or
collected
within
one
year
of
the
purchaser
acquiring
the
property.
In
the
requirements
for
"
previously
conducted
title
searches,"
there
is
a
180­
day
timeframe.
This
inconsistency
could
lead
to
confusion
since
it
is
possible
for
previously
conducted
inquiries
to
be
performed
by
a
third
party.
Under
that
circumstance,
it
seems
unclear
as
to
whether
the
180
day
or
one
year
timeframe
would
apply.
In
an
effort
to
minimize
this
potential
confusion,
we
suggest
that
the
180­
day
timeframe
be
applied
to
both
circumstances.
We
also
suggest
that
the
proposed
rule
be
amended
to
prohibit
post­
contractual
reliance
letters
(
i.
e.,
any
attempt
by
a
party
to
require
an
environmental
professional
to
provide
a
reliance
letter
shall
be
void
and
unenforceable
as
a
matter
of
law).

Response:
It
is
appropriate
to
use
the
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
651
provisions
for
all
appropriate
inquiries
and
is
updated
as
required
in
§
312.20.
In
all
cases,
the
environmental
professional
should
review
the
previously
obtained
or
collected
information
and
assess
its
accuracy
and
applicability
to
the
current
investigation.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
11
Other
Sections:
NEW
­
6.6
­
Impact
of
the
rule
on
the
cost
of
liability
insurance
Excerpt
Text:
The
proposed
rule
§
312.20
(
c)
states
that
all
appropriate
inquiries
conducted
by
or
for
other
persons
can
be
used
(
which
could
be
interpreted
as
relied
on)
in
a
report
for
a
third
party.
The
preamble
(
page
52557,
first
paragraph
under
(
4))
also
states
that
all
appropriate
inquiries
can
be
conducted
by
one
party
and
transferred
to
another.

Comment:
While
likely
not
the
intent,
this
language
implies
that
numerous
parties
can
rely
on
a
report
prepared
by
a
consultant
for
their
client,
without
any
need
to
obtain
a
release
from
the
consultant.
This
would
set
an
unfortunate
precedent
in
the
assessment
industry,
and
increase
the
overall
business
risk
to
consultants
as
a
whole.
(
Thereby
reducing
their
willingness
to
perform
this
type
of
work
or
greatly
increasing
the
price
of
an
assessment
to
cover
the
added
risk)

Response:
Please
see
response
to
comment
number
0116,
excerpt
1.
Ownership
rights
to
previous
reports
and
whether
or
not
previous
all
appropriate
inquiries
reports
can
legally
be
transferred
between
parties
is
beyond
the
scope
of
this
rulemaking.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
7
Excerpt
Text:
Use
of
AAIs
conducted
by
third
parties.
The
proposed
approach
seems
very
adequate.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
4
Excerpt
Text:
­
The
proposed
requirements
for
using
all
appropriate
inquiries
conducted
by
third
parties.

­­
Intertox
supports
the
proposal
to
allow
all
appropriate
inquires
conducted
by
one
party
652
to
be
transferred
to
another
party,
however,
we
believe
that
an
all
appropriate
inquiry
should
be
valid
for
one
year
only,
thereafter;
the
environmental
professional
should
be
required
to
update
all
aspects
of
the
inquiry,
including
historical
resources
review,
government
database
and
records
review,
and
site
visit.

Response:
The
final
rule
requires
that
all
information
in
a
previously­
conducted
all
appropriate
inquiries
report
be
updated
if
the
report,
or
previous
investigation,
was
completed
more
than
a
year
prior
to
the
date
of
acquisition
of
the
property.
653
3.13.3
The
Agency
Should
Clarify
whether
the
Results
of
the
Reports
that
Have
Been
Prepared
in
Accordance
with
ASTM
E1527­
2000
Can
Be
Included
in
Updated
AAI
Reports
Commenter
Organization
Name:
Prevatte,
Chad
M
Comment
Number:
0093
Excerpt
Number:
4
Excerpt
Text:
In
§
312.20.4(
c)
1
it
states.
"
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
the
reports
meet
the
objectives
and
performance
factors
of
this
regulation,
as
specified
in
paragraphs
(
d)
and
(
e)
of
this
section.
Can
the
results
of
reports
that
have
been
prepared
in
accordance
only
with
ASTM
E
1527­
00
be
included
in
updated
AAI
reports?

Response:
The
regulatory
language
in
the
proposed
rule
was
a
bit
confusing.
EPA
made
some
clarifications
to
the
final
rule.
The
regulatory
language
in
the
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation
(
i.
e.,
40
CFR
312).
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.
654
3.13.4
Shelf
Life
Should
Be
Extended
beyond
180
Days/
One
Year
Commenter
Organization
Name:
Zutz
Comment
Number:
0104
Excerpt
Number:
4
Excerpt
Text:
The
180
day
shelf
life
of
a
report
is
too
short.

We
believe
the
current
industry
standard
of
a
180
days
shelf
life
(
ASTM
1527­
00)
is
also
too
short.
Complicated
real
estate
transactions
can
take
extended
periods
of
time,
especially
when
there
is
an
actual
or
perceived
risk
of
environmental
liability
as
would
be
the
case
with
most
brownfields
sites.
For
example,
it
took
about
a
decade
to
complete
the
real
estate
transaction
for
a
brownfields
site
in
my
city.
In
that
the
activities
that
may
have
caused
environmental
liabilities
are
usually
related
to
historic
land
use
(
not
current
land
use),
the
most
recent
time
period
may
not
be
as
much
of
a
concern
as
earlier
periods.

We
suggest
a
shelf
life
of
at
least
one
to
two
years.

Response:
Although
commenters
may
be
correct
in
their
assertions
that
some
property
transactions
may
take
more
than
a
year
to
close,
EPA
continues
to
believe
that
it
is
important
for
the
all
appropriate
inquiries
investigation
to
be
completed
within
one
year
prior
to
the
date
the
purchaser
acquires
the
property.
We
point
out
that
the
final
regulation,
as
did
the
proposed
regulation,
allows
for
information
from
an
older
investigation
to
be
used
in
a
current
investigation,
however,
if
the
all
appropriate
inquiries
investigation
was
completed
more
than
a
year
prior
to
the
property
acquisition
date,
all
parts
of
the
investigation
must
be
reviewed
and
updated.
We
believe
that
a
year
is
sufficient
time
for
conditions
at
a
property
to
change.
In
particular,
in
cases
where
there
is
a
release
or
threatened
release
at
a
property,
significant
changes
to
the
environmental
conditions
of
a
property
could
change
during
the
course
of
a
year.
In
addition,
dependent
upon
the
ongoing
uses
and
ownership
of
a
property
during
the
course
of
a
one­
year
time
period,
overall
conditions
at
a
property
could
change
and
new
evidence
of
a
release
or
threatened
release
could
appear
over
that
length
of
time.
Therefore,
the
final
rule
requires
that
all
appropriate
inquiries
completed
for
a
particular
property
more
than
one
year
prior
to
the
date
of
acquisition
of
that
property,
must
be
updated
in
their
entirety.
The
final
rule
does
allow
for
the
use
of
information
contained
in
previous
inquiries,
even
when
the
inquiries
where
completed
more
than
a
year
prior
to
the
property
acquisition
date,
as
long
as
all
information
collected
and
all
aspects
of
investigation
be
updated
to
include
any
changes
that
may
have
occurred
during
the
interim.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
4
Excerpt
Text:
655
The
rule
does
not
allow
using
reports
over
a
year
old
and
require
updates
if
over
6
months.
Large
commercial
purchases
of
the
type
contemplated
to
include
complicated
Brownfield
issues
rarely
are
completed
in
six
months.
The
draft
rule
would
seem
to
impose
a
need
for
constant
update
as
the
transaction
progresses.
I
am
not
sure
that
is
necessary
or
productive
so
long
as
the
same
parties
are
involved
in
the
transaction.
I
am
recommending
that
you
remove
the
strict
one­
year
limitation
and
make
provisions
for
updates
as
appropriate.
The
specified
level
of
effort
for
the
six­
month
update
could
easily
be
applied
to
any
update
six
months
or
six
years.

Response:
Please
see
response
to
comment
number
0104,
excerpt
4.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
6
Excerpt
Text:
The
Phase
I
ESA
should
be
available
for
updating
after
one
year
if
the
Phase
I
was
completed
for
the
same
property
and
the
same
client.
For
example,
client
A
purchases
a
commercial
property
and
18
months
later,
client
A
wants
to
refinance
the
same
property.
It
is
sufficient
that
the
Phase
I
be
updated
for
such
purposes
Response:
The
commenter
is
correct.
EPA
points
out
that
the
final
regulation,
as
did
the
proposed
regulation,
allows
for
information
from
an
older
investigation
to
be
used
in
a
current
investigation,
however,
if
the
all
appropriate
inquiries
investigation
was
completed
more
than
a
year
prior
to
the
property
acquisition
date,
all
parts
of
the
investigation
must
be
reviewed
and
updated.
We
believe
that
a
year
is
sufficient
time
for
conditions
at
a
property
to
change.
In
particular,
in
cases
where
there
is
a
release
or
threatened
release
at
a
property,
significant
changes
to
the
environmental
conditions
of
a
property
could
change
during
the
course
of
a
year.
In
addition,
dependent
upon
the
ongoing
uses
and
ownership
of
a
property
during
the
course
of
a
one­
year
time
period,
overall
conditions
at
a
property
could
change
and
new
evidence
of
a
release
or
threatened
release
could
appear
over
that
length
of
time.
Therefore,
the
final
rule
requires
that
all
appropriate
inquiries
completed
for
a
particular
property
more
than
one
year
prior
to
the
date
of
acquisition
of
that
property,
must
be
updated
in
their
entirety.
The
final
rule
does
allow
for
the
use
of
information
contained
in
previous
inquiries,
even
when
the
inquiries
where
completed
more
than
a
year
prior
to
the
property
acquisition
date,
as
long
as
all
information
collected
and
all
aspects
of
investigation
be
updated
to
include
any
changes
that
may
have
occurred
during
the
interim.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
15
Excerpt
Text:
656
1)
Please
explain
the
difference
between
the
180
days
and
the
one­
year
data
expiration
dates
more
clearly.

2)
Although
FAA
believes
that
it
may
be
appropriate
to
update
some
AAI
information
if
it
was
collected
more
than
180
days
prior
to
acquisition
of
the
property,
the
requirement
to
update
certain
information
may
be
excessively
burdensome
and
costly
in
some
instances.
The
information
FAA
believes
the
EP
should
not
have
to
update
if
older
than
180
days
includes
the
following:

­
Interviews
with
previous
owners/
operators:
Information
collected
from
previous
owners
or
operators,
or
from
historical
sources,
will
not
change
over
time
and
EPA
should
not
require
the
EP
to
update
this
information.
The
only
exception
to
this
would
be
if
any
additional
previous
owners
or
operators
were
identified
since
the
initial
AAI
information
collection.
FAA
believes
that
the
requirement
to
re­
interview
previous
owners
and
operators
and
historical
source
information
is
excessive.

­
Database
searches:
Some
of
the
information
may
not
be
updated
by
the
data
source
within
180
days.
For
example,
some
federal,
tribal,
state,
and
local
government
records
(
such
as
the
National
Priorities
List
(
NPL))
are
only
updated
semi­
annually.
Other
databases
are
only
updated
annually.
Therefore,
FAA
believes
that
the
EP
should
only
have
to
update
these
records
if
there
is
evidence
that
conditions
at
the
property
have
changed
within
the
180
days.

­
Site
visits:
FAA
has
many
remote
properties
in
Alaska
and
other
sparsely
populated
areas
where
site
visits
are
not
possible
at
all
times
during
the
year.
FAA
property
transfers
often
take
longer
than
180
days
after
an
AAI
report
is
finished
to
complete.
In
these
remote
and
inaccessible
areas,
requiring
a
new
site
visit
every
180
days
is
excessively
burdensome.
If
an
EP
must
spend
a
day
or
more
traveling
to
and
from
a
facility
to
conduct
a
new
site
visit,
and
that
professional
charges
at
least
$
150
per
hour,
the
additional
cost
would
be
roughly
$
400,
not
$
41­$
47
as
stated
on
page
52571
of
the
proposed
rule.

Response:
The
final
rule
retains
the
requirement
that
certain
aspects
of
the
all
appropriate
inquiries
investigation
be
updated
if
the
investigation
was
completed
more
than
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
final
rule
requires
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:
657
$
interviews
with
past
and
present
owners,
operators,
and
occupants
('
312.23);

$
searches
for
recorded
environmental
cleanup
liens
('
312.25);

$
reviews
of
federal,
tribal,
state,
and
local
government
records
('
312.26);

$
visual
inspections
of
the
facility
and
of
adjoining
properties
('
312.27);
and
$
the
declaration
by
the
environmental
professional
('
312.21(
d)).

Also,
the
final
rule
retains
the
proposed
requirement
that
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.

In
today=
s
final
rule,
we
continue
to
recognize
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
transaction.
Therefore,
the
final
rule
requires
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
'
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
'
312.29)

Commenter
Organization
Name:
SCANA
Comment
Number:
0373
Excerpt
Number:
7
Excerpt
Text:
The
environmental
professional
and
the
purchaser
are
charged
with
meeting
the
performance
objectives
and
performance
factors
of
the
proposed
rule.
The
Agency
is
asked
to
recognize
that
environmental
professionals
(
and
the
purchasers)
are
better
positioned
to
make
a
judgment
call
on
the
use
of
previous
AAI
information
on
a
case­
bycase
basis.
The
Agency
should
note
that
the
environmental
professional
and
the
purchaser
retain
the
liability
of
using
data
obtained
in
the
performance
of
an
inquiry.

It
is
suggested
that
the
Agency
consider
that
the
environmental
professional
(
and
purchaser
where
appropriate)
is
best
poised
to
determine
the
reliability
and
accuracy
of
past
AAI
information
as
it
pertains
to
the
AAI
being
performed.
As
proposed,
the
Agency
could
limit
the
environmental
professional's
use
of
existing
information
that
could
be,
on
a
case­
by­
case
basis,
valid
data.
The
professional
judgment
of
the
environmental
professional
should
not
be
encumbered
by
a
time
limiting
provision.
Based
on
this,
it
is
recommended
that
the
Agency
strike
the
1
year/
180
day
limiting
provisions
as
proposed.
The
Agency
may
find
it
beneficial
to
retain
these
limiting
provisions
and
designate
them
as
guidelines.
658
Response:
Please
see
response
to
comment
number
0334,
excerpt
15.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
12
Excerpt
Text:
The
Proposed
Rule
mandates
an
extremely
rigid
schedule
for
validation
of
Phase
I
ESAs.
AAIs
will
only
be
valid
if
the
report
has
been
updated
within
one
year
prior
to
the
date
of
acquisition
of
the
subject
property.
In
addition,
certain
elements
of
the
AAI
must
be
updated
within
180
days
of
acquisition.
This
is
unreasonable
and
in
some
cases
may
be
infeasible.
As
discussed
above,
the
Proposed
Rule
makes
several
significant
changes
to
the
content
of
the
information
that
must
be
gathered
as
part
of
the
new
AAI
standards.
Most
of
these
changes
require
more
extensive
record
searches
and
some
may
lead
to
sampling,
testing
and
analyses.
Even
without
these
major
new
aspects,
property
purchases,
particularly
industrial
property
purchases,
can
lake
well
over
a
year
to
finalize.
Given
the
goal
of
the
Act,
to
promote
cleanup
and
redevelopment
of
brownfield
sites,
the
Proposed
Rule's
timeframe
is
not
adequate.

While
it
maybe
important
to
update
certain
aspects
of
the
AA1,
such
as
relevant
changes
in
the
condition
of
the
property
and
any
new
specialized
knowledge
of
the
EP
or
user,
other
aspects,
particularly
with
abandoned
and
closed
sites,
are
unnecessary.
Repeating
interviews
of
past
owners,
visual
inspections
of
the
property,
and
government
records
searches
arc
a
few
examples,
where
updates
would
yield
little
to
no
additional
AAIs
information,
but
are
required
within
180
days
of
acquisition.
Often,
these
activities
occur
early
in
Phase
I
ESAs,
so
it
is
almost
certain
that
these
activities
would
have
to
be
done
more
than
once
before
acquisition
in
order
to
comply
with
the
standards
as
written.
In
addition,
a
potential
purchaser
will
now
be
required
to
pay
not
only
for
the
AAI
report,
but
contract
for
the
required
updates
as
well.
While
yielding
no
environmental
benefit,
duplication
of
these
activities
will
increase
the
time
and
cost
of
AAIs
considerably.
Thus,
the
prescribed
schedule
for
completion
and
update
should
by
increased
dramatically
or
eliminated
altogether.

Response:
Please
see
response
to
comment
number
0334,
excerpt
15.

The
requirement
to
update
certain
aspects
of
the
all
appropriate
inquiries
if
the
inquiries
were
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property
is
not
a
change
from
the
current
ASTM
E1527­
2000
standard,
which
requires
such
information
to
be
updated
after
180
days.
Further,
the
Agency
believes
that
updating
reports
for
certain
information
is
critical
to
understanding
the
current
conditions
of
the
property
and
protecting
the
environment
and
human
health.
659
Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
19
Excerpt
Text:
Furthermore,
NPCA
requests
that
the
schedule
for
completion
and
update
of
AAIs
be
eliminated,
or
substantially
increased.

Response:
Please
see
response
to
comment
number
0334,
excerpt
15.

Commenter
Organization
Name:
TXDOT
Comment
Number:
0410
Excerpt
Number:
1
Excerpt
Text:
Regardless
of
acquisition
method,
either
purchase
or
condemnation,
as
mentioned
earlier,
TxDOT
follows
the
requirements
outlined
in
NEPA
to
evaluate
the
impacts
to
the
environment
by
the
development
and
construction
of
a
transportation
facility.
However,
the
time
between
the
completion
of
the
initial
NEPA
assessments
and
evaluation
and
the
acquisition
of
the
property
can
be
considerable,
and
usually
not
within
the
one
year
and
180
days
outlined
within
§
312.20(
b)(
2)
and
(
3)
of
the
proposed
rules.
Additionally,
the
development
of
most
transportation
facilities,
such
as
new
roadways
on
new
right
of
way
or
road
widening
and
intersection
developments
involve
the
acquisition
of
property
from
multiple
landowners.
The
process
to
acquire
property
itself
can
take
considerable
time,
considering
the
time
spent
to
appraise,
negotiate
and
close
on
each
parcel,
this
does
not
count
the
extra
time
required
for
an
eminent
domain
acquisition.
Although,
TxDOT
makes
every
effort
to
complete
"
All
Appropriate
Inquiry,"
by
performing
a
Phase
I
Environmental
Site
Assessment,
through
the
use
of
standards
such
as
ASTM
E1527­
97
and
E1527­
00
and
through
compliance
with
the
National
Environmental
Policy
Act
(
NEPA),
some
aspects
of
the
inquiry
cannot
be
completed
by
the
time
of
acquisition,
since
the
landowner
in
possession
of
the
property
may
refuse
access
or
information
concerning
the
property
even
when
acquisition
is
not
conducted
through
the
exercise
of
eminent
domain.

With
this
in
mind,
TxDOT
recommends
that
DOTs
as
well
as
other
government
entities
be
exempted
from
the
requirement
to
have
the
components
of
the
inquiry
updated
within
180
days
prior
to
the
purchase.
On
any
number
of
TxDOT
projects,
this
would
require
the
continuous
use
of
one
or
several
environmental
professionals
through
the
one
to
three
or
more
years
required
to
acquire
the
necessary
right
of
way.

Therefore,
TxDOT
recommends
the
following
change
in
§
312.20
§
312.20
All
Appropriate
Inquiries
(
a)
"
All
appropriate
inquiries"
pursuant
to
CERCLA
§
101(
35)(
B)
must
include:
660
(
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
responsible
for
the
inquiries
for
the
subject
property
identified
under
§
312.1(
b),
provided:

(
1)
such
information
was
collected
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
the
requirements
of
this
part
(
40
CFR
Part
312)
and
with
§
§
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii);

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

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

(
4)
such
updates
to
information
required
under
§
312.20(
b)(
2)&(
3)
above
are
not
required
should
the
inquiry
be
conduct
by
or
on
behalf
of
a
government
entity
acquiring
multiple
properties
for
a
project
to
construct
a
transportation
facility,
should
the
inquiry
be
completed
and
updated
as
part
of
the
National
Environmental
Policy
Act
(
NEPA)
process.

Response:
EPA
disagrees
with
the
commenter.
The
statute
provides
no
basis
for
treating
government
purchasers
of
property
differently
from
other
prospective
landowners
or
grantees.
Please
see
responses
to
comment
numbers
0242
(
excerpts
4
and
5)
and
0104
(
excerpt
4).

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
3
Excerpt
Text:
The
rule
does
not
allow
for
the
use
of
prior
reports,
or
portions
thereof,
that
are
older
than
one
year.
Updated
reports
are
common
in
the
commercial
real
estate
market
and
generally
cost
approximately
one
half
of
the
cost
of
a
Phase
I
ESA.
The
historical
information
such
as
aerial
photographs,
fire
insurance
rate
maps,
historical
topographic
maps,
street
directories,
chain
of
title
ownership,
etc.
do
not
have
to
be
repurchased,
but
simply
updated.
The
EPA
rule,
as
currently
proposed,
appears
to
require
repurchase
of
661
these
documents,
which
do
not
change
from
year
to
year.

Response:
The
regulatory
language
in
the
proposed
rule
was
a
bit
confusing.
EPA
made
some
clarifications
to
the
final
rule.
The
regulatory
language
in
the
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation
(
i.
e.,
40
CFR
312).
This
allows
for
the
use
of
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
6
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
Age
of
Due
Diligence
­
The
rule
does
not
allow
for
the
use
of
prior
reports
that
are
older
than
one
year.
Some
industry
publications
have
suggested
that
this
means
a
Phase
I
ESA
literally
expires
after
one
year
and
a
completely
new
inquiry
is
required.
The
specified
level
of
effort
to
be
conducted
within
6
months
is
precisely
the
scope
of
work
that
would
need
to
be
conducted
if
the
report
were
six
months
old
or
six
years
old.
The
rule
should
1)
remove
the
one­
year
requirement,
2)
specifically
state
that
reports
older
than
one
year
can
be
used,
or
3)
the
economic
analysis
must
account
for
the
thousands
of
reports
that
will
need
to
be
re­
created.

Response:
The
regulatory
language
in
the
proposed
rule
was
a
bit
confusing.
EPA
made
some
clarifications
to
the
final
rule.
The
regulatory
language
in
the
final
rule
(
at
§
312.20(
c)(
1))
allows
for
the
use
of
information
collected
as
part
of
prior
all
appropriate
inquiries
investigation
for
the
same
property
provided
that
the
prior
information
was
collected
"
during
the
conduct
of
all
appropriate
inquiries
in
compliance
with
CERCLA
Sections
101(
35)(
B),
101(
40)(
B)
and
107(
q)(
A)(
viii)."
We
have
deleted
the
proposed
language
that
would
have
required
the
previously
conducted
investigation
to
have
been
done
in
compliance
with
the
final
regulation
(
i.
e.,
40
CFR
312).
This
allows
for
the
use
of
662
information
collected
as
part
of
previous
all
appropriate
inquiries,
as
long
as
the
information
was
collected
in
compliance
with
the
statutory
provisions
for
all
appropriate
inquiries.
For
property
purchased
on
or
after
May
31,
1997,
therefore,
any
information
collected
as
part
of
an
assessment
in
compliance
with
the
ASTM
E1527­
97
standard
or
the
ASTM
E1527­
2000
standard
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
For
property
purchased
before
May
31,
1997,
information
from
assessments
completed
and
in
compliance
with
the
statutory
provisions
at
CERCLA
Section
101(
35)(
B)(
iv)(
I)
may
be
used
as
part
of
a
current
all
appropriate
inquiries
investigation.
However,
this
prior
information
may
only
be
used
if
updated
in
accordance
with
§
§
312.20(
b)
and
(
c)
of
today's
rule.

The
final
rule
retains
the
requirement
that
certain
aspects
of
the
all
appropriate
inquiries
investigation
be
updated
if
the
investigation
was
completed
more
than
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
final
rule
requires
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
('
312.23);

$
searches
for
recorded
environmental
cleanup
liens
('
312.25);

$
reviews
of
federal,
tribal,
state,
and
local
government
records
('
312.26);

$
visual
inspections
of
the
facility
and
of
adjoining
properties
('
312.27);
and
$
the
declaration
by
the
environmental
professional
('
312.21(
d)).

Also,
the
final
rule
retains
the
proposed
requirement
that
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.

In
today=
s
final
rule,
we
continue
to
recognize
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
transaction.
Therefore,
the
final
rule
requires
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
'
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
'
312.29)
663
Commenter
Organization
Name:
Georgia
Power
Comment
Number:
0423
Excerpt
Number:
4
Excerpt
Text:
§
312.20
All
Appropriate
Inquires,
(
b)(
3)(
i)

In
§
312.20
All
Appropriate
Inquires,
(
b)(
3)(
i)
should
be
changed
to
read:

­
i)
Interviews
with
past
and
present
owners,
operators,
and
occupants
(
see
§
312.23);

Rationale:

­
It
should
not
be
required
that
past
owners
be
re­
interviewed
for
the
purposes
of
updating
the
assessment
within
180
days
of
the
purchase
of
the
subject
property
because
past
owners
generally
would
not
be
expected
to
have
new
information
or
knowledge
of
the
property
from
the
original
interview
to
within
180
days
of
the
purchase
of
the
property
(
provided
the
past
owner
was
initially
interviewed
as
a
past
owner).

Response:
The
interviews
portion
of
the
all
appropriate
inquiries
investigation
is
one
aspect
of
the
investigation
that
must
be
updated
if
the
previously­
conducted
all
appropriate
inquiries
was
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property.
Exactly
which
interviews
must
be
updated,
beyond
the
current
owner(
s)
and
occupants,
is
best
left
to
the
professional
judgment
of
the
environmental
professional.
EPA
agrees
with
the
commenter,
in
that
the
views
of
previous
owners
may
not
change
over
the
180
day
time
period.
However,
the
environmental
professional
may
want
to
ask
additional
questions
of
previous
owners
and
occupants
or
verify
new
information
with
such
persons
when
updating
a
previously­
conducted
investigation.

Commenter
Organization
Name:
Alizadeh,
Ed
Comment
Number:
PM­
0127­
0001
Excerpt
Number:
2
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
Lastly,
I
think
the
rule
­­
By
extending
the
time
period
that
the
inquiries
were
good
from
six
months
to
a
year
will
result
in
being
a
benefit
for
developers.
Frequently
developers
from
start
to
finish
take
much
longer
than
six
months
before
the
deal
is
finalized,
and
by
extending
that
to
a
year,
will
provide
a
benefit
to
developers
who
are
trying
to
redevelop
brownfield
properties.
In
summary,
the
rule
makes
redeveloping
brownfields
sites
more
attractive
to
potential
developers.
It
sets
minimum
criteria
for
environmental
professionals,
which
enhances
the
public
confidence,
and
although
through
the
AAI
studies,
the
fees
will
potentially
increase
due
to
the
added
research
requirements,
it
will
enhance
the
confidence
and
will
be
protective
of
human
health
and
the
environment.
664
Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
PM­
0127­
0012
Excerpt
Number:
2
Excerpt
Text:
The
second
issue
is
that
on
the
usage
of
an
environmental
report
dated
greater
than
one
year,
the
history
of
a
property
does
not
change.
The
photographs
do
not
change,
the
ownership
of
record
does
not
change,
and
the
rate
maps
do
not
change.
I
do
not
see
any
avenue
of
which
we
can
actually
take
these
out
of
a
prior
report
without
having
to
go
back
and
re­
get
the
information,
if
you
will,
the
way
the
current
standard
is
proposed.

Response:
The
final
rule
retains
the
requirement
that
certain
aspects
of
the
all
appropriate
inquiries
investigation
be
updated
if
the
investigation
was
completed
more
than
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
final
rule
requires
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
('
312.23);

$
searches
for
recorded
environmental
cleanup
liens
('
312.25);

$
reviews
of
federal,
tribal,
state,
and
local
government
records
('
312.26);

$
visual
inspections
of
the
facility
and
of
adjoining
properties
('
312.27);
and
$
the
declaration
by
the
environmental
professional
('
312.21(
d)).

Also,
the
final
rule
retains
the
proposed
requirement
that
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.

In
today=
s
final
rule,
we
continue
to
recognize
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
transaction.
Therefore,
the
final
rule
requires
that
each
all
appropriate
inquiries
investigation
include
current
information
related
to:
665
$
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
'
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
'
312.29)
666
3.14
The
AAI
Report
Must
Be
Signed
by
an
EP
Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
6
Excerpt
Text:
We
are
in
agreement
with
the
signature
and
attestation
language
requirements
provided
in
the
rule.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provision.

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
7
Excerpt
Text:
NSPE
believes
that
the
environmental
professional
should
be
required
to
provide
a
signature
as
well
as
the
two
statements
provided
as
part
of
the
proposed
rule.
However,
the
importance
of
the
signature,
in
and
of
itself,
is
not
inherently
obvious
and
does
not
afford
the
owner
or
the
public
with
any
increased
protection.
It
is
NSPE's
point
of
view
that
these
protections
must
be
provided
at
the
outset
of
the
project?
when
the
owner
is
looking
for
a
qualified
environmental
professional1.
In
order
to
provide
these
protections
and
information,
it
is
NSPE's
opinion
that
this
post­
project
signature
requirement
should
be
coupled
with
an
objective
pre­
project
licensure
requirement,
similar
to
that
required
for
the
professional
engineer
or
professional
geologist.
By
using
the
already
existing
licensure
infrastructure
and
rules,
as
established
by
the
individual
states,
the
public
would
be
provided
with
an
objective
and
searchable
database,
which
they
could
use
to
verify
the
qualifications
of
the
environmental
professional
and
to
track
the
environmental
professionals
location/
employer
should
questions
arise.
These
two
previously
mentioned
professions,
engineering
and
geology,
provide
objective
and
rational
bases
for
identifying
those
individuals
who
possess
the
requisite
minimum
knowledge
and
experience
(
i.
e.,
qualifications)
needed
to
perform
certain
activities.
These
bases
can
also
serve
the
public
as
a
resource
from
which
the
public
can
obtain
available
information
related
to
the
environmental
professional.
Although
NSPE
focuses
on
the
protection
of
the
professional
engineer's
license,
we
also
acknowledge
that
we
share
specific
market
niches
with
other
qualified
professions.
Our
concern
with
the
signature
is
that
it,
in
and
of
itself,
will
not
provide
the
public
with
the
objective
professional
protections
that
can
be
provided
if
a
different
and
more
controlled
approach
were
to
be
employed.

Response:
The
final
rule
provides
a
definition
of
environmental
professional
that
sets
minimum
qualifications
for
the
person
who
supervises
the
all
appropriate
inquiries
investigation
and
signs
the
final
report.
EPA
believes
that
individuals
who
meet
the
minimum
qualifications
included
in
the
definition
have
sufficient
education
and
experience
to
667
conduct
and
oversee
the
activities
necessary
to
complete
the
investigation
and
render
the
opinions
necessary
regarding
environmental
conditions
and
the
potential
need
for
further
investigation.
Prospective
landowners
and
grantees
are
always
free
to
hire
professionals
with
stronger
qualifications
than
the
minimum
qualifications
provided
in
the
definition
of
environmental
professional.

Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
1
Excerpt
Text:
­
The
proposed
requirements
for
an
all
appropriate
inquiries
report,
including
the
signature
requirements
for
the
all
appropriate
inquiries
report.

­­
Intertox
supports
the
proposed
requirements
for
an
all
appropriate
inquiry
report.
The
report
is
the
culmination
of
the
review
of
historical
sources
of
information,
review
of
government
records,
and
site
inspection.
Therefore,
documentation
of
approach,
results,
and
identification
of
environmental
liabilities
is
essential
to
the
purchaser.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
2
Excerpt
Text:
)
Requirements
for
an
AAI
Report
including
EP
Signature
a)
Page
#
5278
b)
View:
I
support
the
EP
Signature.
The
EP
signature
signifies
that
the
report
is
complete,
not
in
draft
form.
Draft
Reports
are
not
considered
acceptable.
Furthermore
it
provides
assurance
and/
or
certification
the
EP
has
completed
the
AAI
process.

c)
Assumptions:
Reports
without
signature
are
in
draft
form
d)
Burden:
None.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
18
668
Excerpt
Text:
Results
of
Inquiry
by
an
Environmental
Professional.

a)
Page
52578
b)
View:
All
of
the
requirements
below
taken
directly
from
the
proposed
AAI
standard
are
supported.
It
clearly
defines
that
the
Professional
completing
the
Phase
I
must
meet
the
definition
AAI
EP,
certification
that
the
Phase
I
report
itself
meets
the
performance
standards
of
the
AAI
Phase
I,
provides
a
professional
opinion
and
identifies
relevant
data
gaps.
There
are
tremendous
increases
in
quality
over
the
current
standard,
which
many
professionals
argue
is
not
intended
require
a
written
opinion.
When
reviewing
a
Phase
I
report
we
are
searching
for
sound
and
thorough
investigation
followed
by
the
Professional's
judgment
whether
or
not
additional
investigation
should
be
conducted.

The
proposed
AAI
standard
would
require
the
EP
document
in
a
written
Phase
I
report:
(
1)
Professional
Opinion;
(
2)
identification
of
data
gaps
and
their
significance;
(
3)
qualifications
of
the
EP.

Furthermore
the
proposed
standard
requires
the
written
report
include
the
following
language
and
signature
of
the
EP:

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

The
above
two
mandatory
statements
are
to
be
followed
by
an
EP
signature.

c)
Assumptions:
n/
a
d)
Burden:
This
should
not
place
an
unreasonable
burden
on
an
AAI
EP.
The
certification
that
AAI
has
been
accomplished,
content
of
the
written
report,
including
the
EP's
professional
judgment
are
critical
to
the
AAI
process,
preserving
the
CERCLA
defenses,
and
evaluating
the
real
estate
from
a
Lender's
perspective.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.
669
3.14.1
The
Agency
Should
Clarify
whether
the
Seal
of
the
Licensed
Professional
Engineers
and
Professional
Geologists
Will
Be
Required
on
the
AAI
Report
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
10
Excerpt
Text:
It
is
understood
that
a
new
AAI
"
statement
of
qualifications"
within
the
ESA
is
necessary,
and
that
the
EP
and/
or
preparer
will
need
to
be
sign
the
ESA.
However,
will
the
"
seal"
of
the
licensed
PE
or
PG
or
other
registered
professional
be
required
on
the
document?

Response:
The
final
rule
does
not
require
that
a
P.
E.
or
a
P.
G.
apply
his
or
her
seal
to
an
all
appropriate
inquiries
report.
670
3.14.2
Review
of
Information
Ordered
Closed
by
Courts
Commenter
Organization
Name:
Roeser,
Daniel
Comment
Number:
0249
Excerpt
Number:
6
Excerpt
Text:
Results
of
inquiry
by
an
environmental
professional.

Since
the
validity
of
the
AAI
as
defined
in
the
proposed
rules
is
so
highly
dependent
on
performance
of
the
inquiry
by,
or
under
the
supervision
of,
an
EP,
I
recommend
that
the
proposed
rules
be
modified
to
require
inclusion
of
documentation
of
the
EP's
credentials
in
the
AAI
report.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
When
hiring
an
environmental
professional,
a
prospective
landowner
or
grantee
may
always
ask
an
environmental
professional
to
provide
copies
of
his
or
her
credentials
or
otherwise
prove
that
he
or
she
meets
the
minimum
qualifications
provided
in
the
definition
of
environmental
professional.

Commenter
Organization
Name:
Andrews,
Douglas
Comment
Number:
0399
Excerpt
Number:
5
Excerpt
Text:
3.
312.21
Results
of
inquiry
by
an
environmental
professional.

Since
the
validity
of
the
AAI
as
defined
in
the
proposed
rules
is
so
highly
dependent
on
performance
of
the
inquiry
by,
or
under
the
supervision
of,
an
EP,
I
recommend
that
the
proposed
rules
be
modified
to
require
inclusion
of
documentation
of
the
EP's
credentials
in
the
AAI
report.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
When
hiring
an
environmental
professional,
a
prospective
landowner
or
grantee
may
always
ask
an
environmental
professional
to
provide
copies
of
his
or
her
credentials
or
otherwise
prove
that
he
or
she
meets
the
minimum
qualifications
provided
in
the
definition
of
environmental
professional.
671
Commenter
Organization
Name:
Hoskins,
Herbert
Comment
Number:
0428
Excerpt
Number:
4
Excerpt
Text:
Since
the
validity
of
the
AAI
as
defined
in
the
proposed
rules
is
so
highly
dependent
on
performance
of
the
inquiry
by,
or
under
the
supervision
of,
an
EP,
I
recommend
that
the
proposed
rules
be
modified
to
require
inclusion
of
documentation
of
the
EP's
credentials
in
the
AAI
report.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
When
hiring
an
environmental
professional,
a
prospective
landowner
or
grantee
may
always
ask
an
environmental
professional
to
provide
copies
of
his
or
her
credentials
or
otherwise
prove
that
he
or
she
meets
the
minimum
qualifications
provided
in
the
definition
of
environmental
professional.
672
3.14.3
The
Signature
Requirement
Should
Be
Modified
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
9
Other
Sections:
NEW
­
3.16
­
Division
of
responsibilities
(
tasks
performed
by
EP
vs.
landowner/
purchaser)
Excerpt
Text:
The
Proposed
Rules
allow
the
landowner
or
prospective
purchaser
to
perform
certain
activities.
The
Proposed
Rules
do
not
state
how
this
information
is
to
be
incorporated
into
the
AAI
process.
Is
it
to
be
provided
to
the
EP
to
include
in
his/
her
report?
If
so,
this
could
make
the
EP
responsible
for
the
accuracy
of
this
information.
While
R&
W
supports
disclosure
from
a
prospective
purchaser/
landowner
to
the
EP
and
including
this
information
in
a
single
document,
R&
W
requests
modifying
the
signature
requirements
to
explicitly
state
that
the
EP
cannot
comment
on
the
accuracy
and
is
not
qualified
to
assess
of
the
significance
of
information
provided
by
a
prospective
purchaser/
landowner.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
is
not
required
to
certify
the
results.
In
addition,
the
environmental
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
7
Excerpt
Text:
The
declaration
requires
the
language
'
I
have
developed
and
performed
the
all
appropriate
inquires
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
part
312'
to
be
signed
off
on
by
the
EP
although
four
areas
of
312
requires
actions
by
other
parties
and
not
the
EP.
These
are
detailed
in
312.22
and
summarized
here
as
lien
search,
specialized
knowledge
or
experience,
relationship
of
purchase
price
to
market,
and
commonly
known
information
about
the
property.
The
EP
is
not
responsible
for
this
information
and
cannot
declare
that
all
appropriate
inquires
was
performed
if
this
information
is
not
provided.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
673
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
is
not
required
to
certify
the
results.
In
addition,
the
environmental
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

Commenter
Organization
Name:
Tramm,
Kenneth
Comment
Number:
0425
Excerpt
Number:
2
Excerpt
Text:
40
CFR
part
312.21(
d)
requires
the
environmental
professional
to
make
a
statement
in
the
written
report
that
".[
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."
This
statement
implies
that
in
order
for
an
environmental
professional
to
assess
a
property,
they
must
have
specific
experience
of
a
property
with
similar
nature,
history
and
setting.
For
example,
if
an
assessment
were
conducted
at
a
property
located
on
the
Austin
Chalk
and
two
weeks
into
the
project,
it
is
determined
that
a
nickel
plating
facility
was
formerly
located
on
the
property,
the
environmental
professional
must
evaluate
if
they
had
prior
experience
assessing
a
nickel
plating
facility
on
the
Austin
Chalk.
Given
that
it
is
not
normal
practice
for
environmental
Professionals
to
keep
detailed
records
of
every
assessment
they
have
been
involved
in,
the
literal
interpretation
of
the
proposed
declaration
is
extremely
onerous.

Furthermore,
the
declaration
imposes
requirements
on
the
environmental
professional
that
are
not
stated
elsewhere
in
the
regulation.
We
recommend
that
the
declaration
language
mirror
the
requirements
of
an
environmental
professional
as
stated
in
321.10(
b)(
1).
As
such,
we
recommend
the
declaration
be
modified
to
the
following.."[
I,
We]
have
the
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
the
subject
property."
Alternatively,
the
EPA
should
clarify
what
specific
qualifications
would
be
necessary
for
an
environmental
professional
to
conduct
an
assessment
and
make
a
declaration.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
is
not
required
to
certify
the
results.
In
addition,
the
environmental
674
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

The
individual
carrying
out
the
all
appropriate
inquiry
must
acknowledge
that
he
or
she
meets
the
requirements
of
an
environmental
professional.
That
is
the
intent
of
the
signature
requirement.

Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
1
Excerpt
Text:
Regarding
the
heading
of
What
Are
the
Proposed
Requirements
for
Reviews
of
Historical
Sources
of
Information?
on
page
52561
of
the
proposed
rule:

­
it
states
"
The
proposed
rule
would
not
require
that
any
specific
type
of
historical
information
be
collected "
as
" 
any
list
of
specific
documents
could
result
in
undue
burdens ".

­
We
agree
that
a
rigid
listing
of
specific
sources
can
be
a
problem
for
some
areas/
property
types.

­
However,
this
reluctance
to
recommend
specific
sources
gives
us
concern
as
it
relates
to
the
following
statements
­
"[
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."
The
preceding
statements
are
too
open
to
challenge
as
they
are
written.

­
We
would
suggest
that
the
same
"
qualifier"
for
declaring
conformance
with
the
definition
of
Environmental
Professional
be
included
in
the
preceding
statements
as
follows
­
"[
I,
We],
to
the
best
of
[
my,
our]
professional
knowledge
and
belief,
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],
to
the
best
of
[
my,
our]
professional
knowledge
and
belief,
have
developed
and
performed
the
all
appropriate
inquiries
in
conformance
with
the
standards
and
practices
set
forth
in
40
CFR
Part
312."

Response:
EPA
believes
the
current
wording
for
the
signature
statement
is
appropriate.
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
675
is
not
required
to
certify
the
results.
In
addition,
the
environmental
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.
676
3.15
Suggestions
for
Including
Additional
Requirements
or
Revising
the
Proposed
Requirements
Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
21
Excerpt
Text:
­
The
identification
of
voluntary
consensus
standards
that
are
applicable
to
and
compliant
with
today's
proposed
standards
and
practices
for
all
appropriate
inquiries.

­­
Voluntary
consensus
standards
that
may
be
applicable
and
compliant
to
the
proposed
rule
are
listed
below.
We
offer
these
as
evidence
that
all
appropriate
inquiry
standards
have
been
debated
and
formalized
by
several
organizations
since
the
late
1980s.
We
suggest
that
the
U.
S.
EPA
and
its
negotiated
rule
making
committee
review
these
indepth
and
adapt
those
elements
that
would
create
an
all
appropriate
inquiry
rule
that
is
specific,
measurable,
actionable,
and
realistic.

­
ASFE.
1995.
Phase
I
and
Phase
II
Environmental
Site
Assessments:
RecommendedManagement
Procedures
for
Consultants
and
Clients,
2nd
edition.
Silver
Spring,
MD.
­
ASFE.
1989.
Preacquistion
Site
Assessments:
Recommended
Management
Procedures
for
Consulting
Engineering
Firms.
Silver
Spring.
­
American
Society
of
Civil
Engineers.
1996.
Environmental
Site
Investigation
Guidance
Manual
(
ASCE
Manuals
&
Reports
on
Engineering
Practice
No.
83).
New
York.
­
Association
of
Ground
Water
Scientists
&
Engineers.
1992.
Guidance
to
Environmental
Site
Assessments.
Dublin,
OH.
­
California
Department
of
Toxic
Substances
Control.
2001.
Phase
I
Environmental
Site
Assessment
Advisory:
School
Property
Evaluations.
Sacramento.
­
Canadian
Standard
Association.
2001.
Phase
I
Environmental
Site
Assessments
(
Z768).
Ontario.
­
Colangelo
R.
V.
and
Miller
R.
D.
1995.
Environmental
Site
Assessments
and
Their
Impact
on
Property
Value:
The
Appraiser's
Role.
Chicago:
The
Appraisal
Institute.
­
Colten
C.
E.
and
Mulville­
Friel
D.
1990.
Guidelines
and
Methods
for
Conducting
Property
Transfer
Site
Histories
(
HWRIC­
RR­
049).
Champaign:
Illinois
State
Museum­
Hazardous
Waste
Research
&
Information
Center.
­
Consulting
Engineers
Council
of
Metropolitan
Washington.
1992.
Environmental
Site
Assessments:
Guidance
for
Users
and
Providers­
The
Mid­
Atlantic
Standard
of
Care.
Washington,
D.
C.
­
Environmental
Assessment
Association.
1992.
Basic
Guide
for
Environmental
Inspection.
Scottsdale,
AZ.
­
Environmental
Assessment
Association.
1992.
Environmental
Site
Assessments
Regulations
&
Guidelines.
Scottsdale,
AZ.
­
Federal
Aviation
Administration.
2003.
Environmental
Site
Assessment
(
AIP
Guide
No.
1310).
­
Hejzlar
Z.
1999.
Technical
Aspects
of
Phase
I/
II
Environmental
Site
Assessments.
West
677
Conshohocken,
PA:
ASTM.
­
International
Standards
Organization.
2002.
Environmental
Assessment
of
Sites
and
Organizations
(
ISO­
14015).
New
York.
­
National
Park
Service.
1999.
Level
1
Pre­
Acquisition
Environmental
Site
Assessment
Guidance
Manual.
Washington,
D.
C.
­
New
York
State.
2004.
Environmental
Real
Estate
Assessment
Guide.
Governor's
Office
of
Regulatory
Reform.
­
Ohio
EPA.
2002.
Phase
I
Property
Assessment
for
the
Voluntary
Action
Program.
­
South/
Southwest
Hazardous
Substance
Research
Center.
2001.
Conducting
Environmental
Site
Assessments
for
Brownfield
Properties.
Atlanta:
Georgia
Tech
Research
Institute.

Response:
EPA
thanks
the
commenter
for
this
list
of
standards
that
may
be
applicable
to
the
conduct
of
all
appropriate
inquiries.
EPA
did
not
receive
requests
to
review
potentially
applicable
standards
from
any
other
standards
development
organization
other
than
ASTM
International.
ASTM
International
updated
its
E1527
environmental
site
assessment
standard
to
be
consistent
with
the
all
appropriate
inquiries
provisions
of
CERCLA,
as
amended.
EPA
is
referencing
the
updated,
E1527­
05
standard
as
compliant
with
the
final
rule.
In
the
future,
if
other
standards
development
organizations
request
that
EPA
review
their
standards
for
consistency
with
the
final
rule,
the
Agency
will
do
so.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
3
Excerpt
Text:
One­
size­
fits­
all
­
The
completion
all
appropriate
inquiry
is
required
in
order
to
qualify
for
many
defenses
to
CERCLA
liability.
In
defining
AAI,
however,
EPA
has
established
a
one­
size­
fits­
all
approach.
That
the
same
level
of
inquiry
should
be
required
in
order
to
qualify
for
defenses
as
an
innocent
landowner,
adjacent
property
owner,
or
one
subject
to
institutional
controls
seems
illogical.
Study
of
the
legislation
does
not
reveal
a
rationale
for
this
uniform
requirement.

Institutional
Controls
­
As
written,
the
legislation
does
not
require
specific
actions
to
qualify
for
this
exemption.
Logically,
one
should
be
exempt
from
liability
simply
by
virtue
of
abiding
by
institutional
controls.
This
can
occur
by
design,
after
careful
study
or
by
accident,
simply
as
a
result
of
failure
to
take
actions
which
violate
institutional
controls.
In
order
to
proactively
avoid
violation
of
institutional
controls,
a
more
active
investigation
would
be
required,
however
the
scope
of
such
an
investigation
could
be
significantly
less
than
the
scope
of
work
as
currently
defined.

Adjacent
Properties
­
As
a
result
of
the
legislation
and
one­
size­
fits­
all
rule,
the
requirements
for
defense
as
an
innocent
overlier
have
become
more
stringent.
In
the
past,
no
due
diligence
was
required.
Under
the
proposed
rule,
however,
innocent
parties
who
have
not
performed
due
diligence
will
have
theoretical
liability
for
groundwater
678
contamination
over
which
they
have
no
control.

Response:
In
the
Brownfields
Amendments
to
CERCLA
all
of
the
references
to
the
all
appropriate
inquiries
provisions
are
the
same
without
qualification
regarding
the
type
of
liability
protection
or
type
of
property.
EPA
sees
no
reason
to
vary
the
standards
based
upon
the
type
of
liability
protection
(
e.
g.,
bona
fide
prospective
purchaser,
contiguous
property
owner,
innocent
landowner).

The
statute
requires
that
property
owners
comply
with
all
land
use
restrictions
and
not
impede
the
integrity
of
institutional
controls.
As
part
of
the
final
rule
for
all
appropriate
inquiries,
prospective
landowners
and
grantees
must
search
for
institutional
controls
in
place
or
applicable
to
the
subject
property.

The
commenter
is
correct
in
asserting
that
Congress
did
establish
that
landowners
asserting
the
contiguous
property
owner
liability
protection
must
have
conducted
all
appropriate
inquiries
prior
to
acquiring
the
property.
This
is
a
change
over
the
EPA's
previous
"
Contaminated
Aquifer
Policy."

Commenter
Organization
Name:
Wohlers
Environ
Svcs
Comment
Number:
0435
Excerpt
Number:
1
Excerpt
Text:
Does
the
EPA
intend
to
specify
which
tasks
of
the
All
Appropriate
Inquiries
(
AAI)
investigation
should
be
performed
by
a
designated
Environmental
Professional
(
EP),
and
which
tasks
can
be
performed
by
a
non­
EP
under
supervision
of
an
EP?
If
not,
can
firms
conducting
AAI
investigations
make
this
determination?

Response:
It
is
left
to
the
discretion
of
the
environmental
professional
overseeing
the
conduct
of
the
all
appropriate
inquiries
as
to
who
performs
each
aspect
of
the
inquiries.
An
individual
meeting
the
definition
of
environmental
professional
must
review
and
sign
the
written
report.
EPA
also
recommends
that
a
person
meeting
the
definition
of
environmental
professional
conduct
the
on­
site
visual
inspection
of
the
property.
679
3.15.1
Information
Considered
by
the
EP
in
Reaching
an
Opinion
Regarding
the
Environmental
Condition(
s)
of
the
Subject
Property
Should
Be
Included
in
the
AAI
Report
as
an
Appendix
Commenter
Organization
Name:
Katz,
William
B
Comment
Number:
0049
Excerpt
Number:
1
Excerpt
Text:
It
seems
to
me
that
one
thing
is
missing,
unless
I
missed
it.
That
is
a
requirement
that
a
report
must
have
an
appendix
containing
all
the
data
of
whatever
kind
that
has
been
considered
in
leading
to
the
opinion
of
the
environmental
professional
as
set
forth
in
the
main
body
of
the
report.
I
have
reviewed
too
many
reports
that
do
not
include
all
the
data,
merely
the
conclusions
of
the
person
writing
the
report.
That
makes
it
impossible
to
consider
the
information
leading
to
those
conclusions
and
decide
if
it
is
correct,
complete,
or
questionable.

Response:
The
type
of
background
information
and
documentation
to
include
with
the
written
report
of
the
all
appropriate
inquiries
investigation
is
left
to
the
discretion
of
the
environmental
professional.
680
3.15.2
The
AAI
Report
Should
Be
Submitted
to
the
Agency
or
the
Appropriate
State
Agency
Commenter
Organization
Name:
Rynders,
Dustin,
et
al
Comment
Number:
0076
Excerpt
Number:
2
Excerpt
Text:
The
agency's
proposed
rule
does
not
require
that
a
written
report
be
submitted
to
EPA
or
another
government
agency
or
that
a
written
report
be
maintained
on
the
subject
property
for
any
length
of
time.
§
312.22(
c).
This
seems
insufficient
in
our
analysis.
We
propose
the
following
language
be
added:

Recording
requirement
(
a)
An
entity
wishing
to
assert
this
defense
shall
submit
a
sealed
copy
to
either
the
Agency
or
the
appropriate
state
environmental
agency
to
ensure
the
reliability
of
the
documents.

(
b)
The
copy
on
file
would
be
unsealed
only
in
the
event
that
an
enforcement
action
concerning
the
same
property
was
pursued
by
the
Administrator
or
Agency,
and
the
defendant
asserted
the
"
all
necessary
inquiries"
defense.

(
c)
Until
these
two
conditions
are
met,
the
sealed
report
will
be
considered
as
entirely
privileged
material,
with
the
privilege
belonging
to
the
persons
who
originally
filed
the
sealed
copy
with
the
Agency
or
state
environmental
agency.

Response:
The
final
rule
does
not
include
any
new
reporting
or
disclosure
obligations
and
there
is
not
requirement
to
submit
final
reports
of
all
appropriate
inquiries
investigations
to
EPA
or
any
other
government
entity.
The
rule
only
applies
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
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.

Although
today's
rule
does
not
include
any
new
disclosure
requirements,
CERCLA
Section
103
does
require
persons
in
charge
of
vessels
and
facilities,
including
on­
shore
and
off­
shore
facilities,
to
notify
the
National
Response
Center
of
any
release
of
a
hazardous
substance
from
the
vessel
or
facility
in
a
quantity
equal
to
or
greater
than
a
"
reportable
quantity,"
as
defined
in
CERCLA
Section
102(
b).
Today's
rule
includes
no
changes
to
this
reporting
requirement
nor
any
changes
to
any
other
reporting
or
disclosure
requirements
under
federal,
tribal,
or
state
law.
681
3.15.3
Require
EPs
to
Incorporate
Existing
Tribal
Standards
and
Regulations
into
the
AAI
Process
Commenter
Organization
Name:
Leech
Lake
Ojibwe
Comment
Number:
0125
Excerpt
Number:
1
Excerpt
Text:
Comment
#
1:
Require
Environmental
Professionals
to
Incorporate
Existing
Tribal
Certification
Standards
into
the
AAI
Process.

In
an
effort
to
protect
the
health
of
the
Reservation
Population
and
the
quality
of
the
Reservation
Environment,
the
Leech
Lake
Band
adopted
Tribal
environmental
laws
and,
in
2003,
formally
established
a
Brownfields
Response
Program.
This
program
is
part
of
an
ongoing
multi­
year
effort
to
assert
the
Band's
inherent
sovereignty
and
civil
regulatory
authority,
expand
the
Band's
environmental
enforcement
capabilities,
and
develop
a
dynamic
and
responsive
approach
to
the
cleanup
of
contaminated
properties.

A
key
element
of
this
program
is
the
Band's
Hazardous
Substances
Control
Act
("
HSCA").
The
main
purpose
of
this
Tribal
Hazardous
Waste
Ordinance
is
two­
fold:
(
1)
to
provide
for
the
cleanup
of
sites
on
the
Reservation
containing
hazardous
substances;
and
(
2)
to
prevent
the
creation
of
future
hazards
due
to
the
improper
disposal
of
hazardous
substances
on
or
into
the
Reservation's
air,
land,
surface
water
or
groundwater.
The
HSCA
imposes
an
obligation
on
all
persons
residing
on
or
conducting
business
within
the
exterior
boundaries
of
the
Reservation
to
comply
with
the
terms
of
the
Act.

Critical
to
the
successful
implementation
of
the
HSCA
is
the
Band's
enforcement
of
its
Tribal
clean­
up
standards,
which
were
designed
to
be
protective
of
the
Reservation
Population
and
the
Reservation
Environment.
These
certification
standards
apply
to
all
lands
located
within
the
Reservation's
exterior
boundaries
and
supplement
the
federally
mandated
requirements
of
the
proposed
rule
as
well
as
other
relevant
federal
regulations.

EPA's
proposed
rule,
however,
makes
no
mention
of
the
need
for
environmental
professionals
("
EPs")
to
either
recognize
or
consider
the
existence
of
applicable
Tribal
regulatory
requirements
when
undertaking
AAI
analyses.
This
absence
of
regulatory
language
is
surprising
in
light
of
EPA's
Indian
Policy.
Based
on
the
requirements
of
federal
law
and
policy,
therefore,
EPs
who
investigate
properties
on
Reservation
lands
must
afford
the
Band's
enforcement
standards
the
same
deference
and
respect
as
they
would
to
the
federal
government
and
its
applicable
standards.

To
ensure
that
an
EP
fully
complies
with
the
requirements
of
EPA's
proposed
rule
while
simultaneously
fulfilling
obligations
imposed
by
the
Band's
Brownfields
Response
Program
and
its
HSCA,
the
Band
makes
the
following
recommendations:

(
1)
EPs
must
meet
informally
with
Tribal
environmental
regulatory
officials
before
commencing
AAI
investigations
on
properties
located
within
a
Reservation's
exterior
682
boundaries
(
2)
EPs
must
become
familiar
with
applicable
Tribal
laws,
ordinances,
practices,
and
procedures
related
to
the
actual
or
potential
presence
of
hazardous
substances
within
the
Reservation
Environment;
and
(
3)
EPs
must
structure
their
AAI
analyses
and
investigations
so
as
to
incorporate
applicable
Tribal
standards
into
the
overall
AAI
process.
Furthermore,
the
Band
believes
that
an
EP's
failure
to
integrate
Tribal
standards
into
the
AAI
analysis
would
result
in
an
invalid
certification.
Accordingly,
the
Band
suggests
strongly
that
EPA
include
within
its
final
rule
a
statement
to
the
effect
that
any
failure
by
an
EP
to
incorporate
Tribal
standards
into
the
larger
AAI
process
will
be
deemed
a
failure
by
the
EP
to
conduct
AAI
in
conformance
with
the
standards
and
practices
set
forth
in
EPA's
rule.
Only
by
including
such
language
into
the
final
rule
will
Tribes,
including
the
Leech
Lake
Band,
be
able
to
continue
their
effective
implementation
of
Tribal
laws,
ordinances,
and
related
Brownsfield
Response
Programs.

Response:
The
commenter's
request
is
beyond
the
scope
of
today's
rule.
Parties
conducting
business
within
the
jurisdiction
of
a
state
or
tribal
government
always
are
required
to
comply
with
all
applicable
state
and
tribal
regulations.
EPA
cannot
modify
a
federal
regulation
to
include
all
applicable
provisions
of
all
states
and
all
tribes.
683
3.15.4
The
EP's
Report
Should
Only
Include
Data
Necessary
for
the
Judgment
of
the
EP
Commenter
Organization
Name:
Koch,
Donald
Comment
Number:
0234
Excerpt
Number:
6
Excerpt
Text:
The
regulations
misconstrue
the
meaning
of
CERCLA
(
101)(
35)(
B)
in
that
the
report
of
the
environmental
professional
was
meant
to
be
just
one
component
of
the
all
appropriate
inquiries
rule,
not
the
entire
rule.
The
environmental
professional's
report
should
only
include
the
data
necessary
for
the
judgement
of
the
environmental
professional.

Response:
The
provisions
governing
the
requirements
for
the
all
appropriate
inquiries
written
report
are
included
in
40
CFR
312.21(
c)
and
represent
only
one
aspect
of
the
final
rule.
These
requirements
include
documentation
of
the
environmental
professional's
findings,
his
or
her
opinion
regarding
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances,
the
identification
of
data
gaps
and
comment
on
their
significance,
and
the
signature
requirements.
684
3.15.5
The
Agency
Should
Specify
a
Required
Format/
Outline
for
the
AAI
Report
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
6
Excerpt
Text:
The
Proposed
Rules
do
not
include
a
suggested
outline
or
format
for
the
AAI
report.
R&
W
strongly
suggests
that
a
standard
outline
be
required
(
as
in
the
E­
1527­
00).
This
will
facilitate
review
and
use
of
AAI
reports
by
the
marketplace.
The
lack
of
a
standard
reporting
format
poses
significant
inconsistencies
in
the
marketplace,
similar
to
the
situation
prior
to
the
1993
implementation
of
E­
1527­
93.

Response:
The
purpose
of
the
written
report
is
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.
1
The
Agency
notes
that
while
today's
final
regulation
does
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
final
rule
requires
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
rule
also
requires
that
the
report
identify
data
gaps
in
the
information
collected
that
affect
the
ability
of
the
environmental
professional
to
render
such
an
opinion
and
that
the
environmental
professional
comment
on
the
significance
of
the
data
gaps.
Given
that
the
type
and
extent
of
information
available
on
a
particular
property
may
vary
greatly
with
its
size,
type,
past
uses,
and
location,
and
the
type
and
extent
of
information
necessary
for
an
environmental
professional
to
render
an
opinion
regarding
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
associated
with
any
property
may
vary,
we
decided
not
to
include
in
the
final
rule
specific
requirements
governing
the
content
of
all
reports.

The
provisions
of
the
final
rule
allow
for
the
property
owner
(
or
grantee)
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
landowner's
(
or
grantee's)
objectives
and
information
needs
in
1
Nothing
in
this
regulation
or
preamble
is
intended
to
suggest
that
any
particular
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.
685
addition
to
providing
documentation
that
all
appropriate
inquiries
were
completed
prior
to
the
acquisition
of
the
property,
should
the
landowner
(
or
grantee)
need
to
assert
protection
from
liability
after
purchasing
a
property.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
7
Excerpt
Text:
Proposed
Rule
§
312.21(
c)
requires
that
the
EP
prepare
a
written
report;
however,
aside
for
the
certification
statement,
it
provides
no
guidance
for
the
format
of
that
report.
While
we
support
the
discretion
the
AAI
Rule
vests
in
the
EP,
without
clearer
guidance
from
USEPA
it
will
be
difficult
for
the
User
(
especially
a
new
User
or
a
User
unfamiliar
with
AAI)
to
determine
the
adequacy
of
the
EP's
report.
Consider
including
sample
EP
report
outlines,
similar
to
that
which
the
ASTM
Standard
E­
1527
provides
in
its
Appendix
X2,
Recommended
Table
of
Contents
and
Report
Format,
which
USEPA
would
consider
acceptable
in
satisfying
the
Rule's
requirements.

Response:
Please
see
response
to
comment
number
0320,
excerpt
6.
686
3.15.6
Explicitly
State
that
Due
Diligence
According
to
the
Standard
Will
Not
Address
Significant
Compliance­
Related
Liabilities
Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
4
Excerpt
Text:
The
standard
should
explicitly
recognize
that
conducting
"
all
appropriate
inquiry"
and
qualifying
for
CERCLA
liability
defenses
does
not
guarantee
the
lack
of
conditions
which
could
give
rise
to
liability
to
purchasers
of
property.
The
standard
is
expressly
aimed
at
satisfying
requirements
related
to
specific
CERCLA
liability
defenses
(
innocent
landowner,
bona
fide
prospective
purchaser,
contiguous
property
owner).
These
defenses
may
or
may
not
exist
under
applicable
state
law,
and
where
they
do
not
exist
under
state
law,
liability
may
attach
to
parties
taking
title
notwithstanding
performance
of
"
all
appropriate
inquiry."
Similarly,
although
"
all
appropriate
inquiry"
includes
an
evaluation
of
operations
having
the
potential
to
have
been
a
source
of
releases
to
the
environment,
and
thus
Superfund­
type
liability,
conducting
due
diligence
pursuant
to
the
proposed
standard
will
not
address
regulatory
compliance­
related
liability
exposures
that
are
of
enormous
significance.
Clarity
in
this
regard
is
helpful
in
establishing
realistic
expectations
for
users
of
the
standard,
and
to
reduce
the
potential
for
liability
disputes
between
users
and
sendee
providers.

Response:
The
preamble
to
today's
rule
clearly
states
that
the
requirements
of
the
final
rule
apply
only
to
prospective
property
owners
who
are
seeking
protection
from
liability
under
the
federal
Superfund
Law
(
CERCLA).
Prospective
property
owners
wishing
to
establish
protection
from,
or
a
defense
to,
liability
under
state
superfund
or
other
related
laws
must
comply
with
the
all
criteria
established
under
state
laws,
including
any
criteria
for
conducting
site
assessments
or
all
appropriate
inquiries
established
under
applicable
state
statutes
or
regulations.
687
3.15.7
Clarify
That,
Although
the
Rule
Requires
No
New
Reporting
or
Disclosure,
These
May
Be
Required
under
Other
Existing
Standards
(
e.
g.,
Release
Reporting)

Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
5
Excerpt
Text:
5.
The
proposed
standard
should
clarify
that
while
no
new
reporting
or
disclosure
obligations
are
imposed
by
the
proposal,
in
the
course
of
performing
due
diligence
under
the
standard
conditions
may
be
detected
which
require
reporting
or
disclosure
under
existing
legal
requirements.
Many
states
and
some
federal
reporting
requirements
are
triggered
by
"
any
person
having
knowledge"
of
a
release
or
spill,
and
in
some
state
law7
cases,
if
certain
threshold
storage
requirements
have
been
met,
the
reporting
obligation
is
triggered
by
a
spill
of
"
any
amount"
To
avoid
any
misunderstanding
that
the
proposed
standard
does
not
obligate
reporting,
a
clear
statement
should
be
made
that
this
standard
does
not
revoke
or
override
underlying
state
and
federal
requirements
in
connection
with
release
reporting.

Response:
The
preamble
to
the
final
rule
clearly
states
that
although
the
final
rule
does
not
include
any
new
disclosure
requirements,
CERCLA
Section
103
does
require
persons
in
charge
of
vessels
and
facilities,
including
on­
shore
and
off­
shore
facilities,
to
notify
the
National
Response
Center
of
any
release
of
a
hazardous
substance
from
the
vessel
or
facility
in
a
quantity
equal
to
or
greater
than
a
"
reportable
quantity,"
as
defined
in
CERCLA
Section
102(
b).
Today's
rule
includes
no
changes
to
this
reporting
requirement
nor
any
changes
to
any
other
reporting
or
disclosure
requirements
under
federal,
tribal,
or
state
law.
688
3.16
Division
of
Responsibilities
(
Tasks
Performed
by
EP
vs.
Landowner
or
Purchaser)

Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
9
Excerpt
Text:
Allowing
by
rule
certain
data
to
be
furnished
by
the
owner,
purchaser,
client,
etc.
for
use
within
the
ESA
may
be
somewhat
questionable
by
the
preparer
due
to
liabilities
and
confidence
the
preparer
has
that
the
information
furnished
is
accurate,
or
more
so,
unbiased.
Regulatory
data
typically
obtained
for
sites
from
third
party
database
companies
are
a
different
scenario,
and
deemed
to
be
reliable
and
unbiased
in
my
opinion.

Response:
Based
upon
comments
received
from
the
public
concerning
proposed
§
312.22(
a),
requiring
land
owners/
grantees
provide
the
environmental
professional
with
certain
information
in
the
following
situations,

 
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
§
312.29.

the
Agency
proposes
a
change.
In
today's
final
rule
§
312.22(
a)
will
read:

(
a)
Persons
identified
under
§
312.1(
b)
MAY
provide
the
following
information
to
the
environmental
professional
responsible
for
conducting
the
activities
listed
in
§
312.21:

As
a
result
of
this
change
from
"
must"
to
"
may,"
the
environmental
professional
should
note
as
a
data
gap
any
of
the
four
types
of
information
that
is
not
disclosed
from
the
above
list.
Also,
please
keep
in
mind
that
specialized
knowledge
is
always
a
factor
in
a
court's
decision
as
to
whether
to
grant
liability
protection
to
an
owner
or
grantee.

Commenter
Organization
Name:
Scalise,
Frederick
W,
et
al
Comment
Number:
0105
Except
Number:
3
Other
Sections:
NEW
­
3.4
­
Recorded
environmental
cleanup
liens
searches
Excerpt
Text:
This
section
should
more
clearly
indicate
that
it
is
NOT
the
responsibility
of
the
Environmental
Professional
to
search
for
environmental
cleanup
liens.
Searching
and
analyzing
title
and
deed
records
is
not
generally
within
the
scope
of
expertise
of
an
Environmental
Professional,
and
is
best
689
left
to
a
title
company
or
title
insurance
company.
It
should
be
solely
the
responsibility
of
the
person
defined
in
§
312.1
to
provide
any
information
regarding
liens
to
the
Environmental
Professional.

Response:
The
final
rule
allows
that
the
search
for
recorded
environmental
cleanup
liens
be
performed
either
by
the
prospective
landowner
or
grantee,
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
cost­
effectively
performed
by
the
prospective
landowner
or
grantee,
or
his
or
her
agent.
Such
liens
may
be
included
as
part
of
the
chain
of
title
documents
or
may
be
recorded
in
some
other
manner
or
format
by
state
or
local
government
agencies.
If
such
information
is
collected
by
the
prospective
landowner
or
grantee,
or
other
agent
who
is
not
under
the
supervision
or
responsible
charge
of
the
environmental
professional,
the
final
rule
allows
for,
but
does
not
require,
the
information
that
is
collected
by
or
on
the
behalf
of
the
prospective
landowner
or
grantee
to
be
provided
to
the
environmental
professional.
If
the
information
is
provided
to
the
environmental
professional,
he
or
she
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.
If
such
information
is
not
provided
to
the
environmental
professional
and
the
lack
of
such
information
affects
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances
on,
at,
in
or
to
the
property,
the
lack
of
information
should
be
noted
as
a
data
gap
(
per
the
requirements
of
§
312.21(
b)(
2)).

Commenter
Organization
Name:
NSPE
Comment
Number:
0230
Excerpt
Number:
8
Excerpt
Text:
Under
the
language
of
the
proposed
rule,
the
division
of
responsibilities
pertaining
to
all
appropriate
inquiries
allows
the
prospective
owner
or
the
landowner
to
perform
certain
investigatory
activities.
It
is
NSPE's
position
that
the
landowner
or
the
prospective
purchaser
should
be
allowed
to
perform
these
activities,
but
should
not
be
allowed,
under
any
circumstances,
to
be
protected
under
the
innocent
purchaser
defense
unless
the
party
can
show
that
1.
They
possess
the
minimum
educational
and
experiential
requirements
as
set
forth
in
the
final
rule,
and
2.
The
author
and
relationship
to
the
instant
property
is
clearly
defined
in
any
and
all
documentation
so
that
a
third
party
will
know
of
the
potential
conflicts
of
interest
that
may
exist.

Response:
The
entire
all
appropriate
inquiries
rule
requires
good
faith
compliance.
The
Agency
believes
anything
less
will
not
be
considered
compliant
with
the
rule.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
690
Excerpt
Number:
9
Other
Sections:
NEW
­
3.14.3
­
The
signature
requirement
should
be
modified
Excerpt
Text:
The
Proposed
Rules
allow
the
landowner
or
prospective
purchaser
to
perform
certain
activities.
The
Proposed
Rules
do
not
state
how
this
information
is
to
be
incorporated
into
the
AAI
process.
Is
it
to
be
provided
to
the
EP
to
include
in
his/
her
report?
If
so,
this
could
make
the
EP
responsible
for
the
accuracy
of
this
information.
While
R&
W
supports
disclosure
from
a
prospective
purchaser/
landowner
to
the
EP
and
including
this
information
in
a
single
document,
R&
W
requests
modifying
the
signature
requirements
to
explicitly
state
that
the
EP
cannot
comment
on
the
accuracy
and
is
not
qualified
to
assess
of
the
significance
of
information
provided
by
a
prospective
purchaser/
landowner.

Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
is
not
required
to
certify
the
results.
In
addition,
the
environmental
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

The
individual
carrying
out
the
all
appropriate
inquiry
must
acknowledge
that
he
or
she
meets
the
requirements
of
an
environmental
professional.
That
is
the
intent
of
the
signature
requirement.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
14
Excerpt
Text:
1)
FAA
believes
that
some
of
the
activities
the
proposed
rule
identifies
as
those
the
landowner
or
purchaser
might
conduct
and
be
responsible
for
require
special
knowledge
and
are
not
appropriate
for
a
landowner
or
purchaser
to
conduct
(
69
FR
52556).
For
example,
the
requirement
to
determine
the
significance
of
the
relationship
between
the
purchase
price
of
the
property
and
the
value
of
the
property
if
it
wasn't
contaminated
could
require
specialized
knowledge
that
the
landowner
or
purchaser
wouldn't
have.
FAA
believes
that
the
EP
should
be
required
to
conduct
these
activities.

Response:
Many
commenters
asserted
that
an
environmental
professional
should
not
be
required
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property
as
part
of
the
all
appropriate
inquiries
investigation.
Concerns
raised
by
commenters
include
whether
environmental
professionals
are
qualified
to
assess
the
fair
market
value
of
a
property.

The
final
rule
allows
for
this
criterion
to
be
conducted
by
the
prospective
landowner
or
the
grantee
or
undertaken
as
part
of
the
inquiry
by
an
environmental
professional.
If
an
environmental
691
professional
is
not
qualified
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
the
prospective
landowner
or
grantee
may
undertake
the
task
or
hire
another
third
party
to
make
the
comparison
of
price
and
fair
market
value
and
consider
whether
any
differential
is
due
to
potential
environmental
contamination.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
6
Excerpt
Text:
­
The
New
Rule
Appears
to
Make
the
Purchaser
(
as
Opposed
to
the
Environmental
Professional)
Significantly
Responsible
for
Discerning
Contamination.

ASTM
El
527
distinguishes
between
the
responsibilities
of
the
"
user",
that
is
the
purchaser,
and
the
responsibilities
of
the
environmental
professional
hired
by
the
user
to
conduct
the
site
assessment.
The
structure
of
ASTM
El527
recognizes
that
purchasers
hire
environmental
professionals
to
issue
Phase
I
reports
and
that
purchasers
will
rely
on
those
reports
as
a
defense
to
CERCLA
liability
should
any
contamination
problem
subsequently
come
to
light.
The
role
of
the
user
in
ASTM
El527
is
minimal.
The
user
may
supply
certain
records
to
the
environmental
professional.
ASTM
El527­
00
§
5.1.
Users
often
engage
title
companies
to
perform
title
searches
and
report
environmental
liens
or
use
limitations
to
the
environmental
professional
performing
the
site
assessment.
These
records
are
then
used
in
the
preparation
of
the
environmental
professionals
report.

The
new
rule
takes
an
entirely
different
approach,
appearing
to
make
the
user
significantly
responsible
for
discerning
contamination.
Rather
than
relying
on
a
report
prepared
by
a
professional,
a
purchaser
may
find
himself
facing
a
plaintiffs
accusations
that
he
is
responsible
for
ensuring
the
completeness
and
accuracy
of
the
Phase
I
report.

For
example,
proposed
§
312.30
states
that
"[
throughout
the
inquires,"
the
user
"
must
take
into
account
commonly
known
or
reasonably
ascertainable
information.
.
.
and
consider
such
information
when
seeking
to
identify
conditions
indicative
of
releases
or
threatened
releases."
This
language
appears
to
make
the
user
responsible
for
identifying
contamination.
This
appears
nonsensical.
The
user
hires
an
environmental
professional
to
conduct
an
investigation,
and
the
user
should
be
able
to
rely
on
the
professional's
report
without
herself
analyzing
information.
This
requirement
is
unclear
and
increases
uncertainty
by
appearing
to
increase
responsibilities
of
the
user
in
vague
and
undefined
ways
that
might
be
open
to
any
number
of
interpretations
by
plaintiffs
(
including
EPA)
in
cost
recovery
actions.

Response:
CERCLA
places
liability
for
releases
and
threatened
releases
of
hazardous
substances
upon
owners
and
operators
of
facilities
and
vessels.
Owners
and
operators
seeking
protection
from
liability
as
innocent
landowners,
bona
fide
prospective
purchasers,
or
contiguous
property
owners
must
comply
with
the
criteria
provided
in
the
statute
for
attaining
such
protections,
including
conducting
all
appropriate
inquiries.
The
statute
requires
that
all
appropriate
inquiries
include
an
inquiry
conducted
by
an
environmental
professional.
However,
the
responsibility
for
conducting
the
all
692
appropriate
inquiries
as
well
as
the
responsibility
for
complying
with
all
the
other
statutory
criteria
required
to
obtain
protection
from
liabilities
rests
with
the
owner
or
operator.

A
prospective
landowner
may
hire
an
environmental
professional
to
identify
the
environmental
conditions
of
a
property,
but
ultimate
responsibility
for
complying
with
the
statutory
criteria
rests
with
the
property
owner.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
5
Excerpt
Text:
Division
of
Responsibilities.
The
proposed
approach
seems
very
adequate.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions.

Commenter
Organization
Name:
Auditing
Roundtable,
BEAC
Comment
Number:
0363
Excerpt
Number:
2
Excerpt
Text:
The
assessment
report
is
required
to
include
discussion
of
activities
that
the
rule
recognizes
may
be
outside
the
purview
of
the
site
assessor.

The
purchaser
or
the
landowner
(
or
presumably
other
experts
working
on
behalf
of
the
landowner)
may
conduct
inquiries
relating
to;
(
i)
lien
searches,
(
ii)
an
assessment
of
the
specialized
knowledge
of
the
purchaser/
landowner,
(
iii)
an
assessment
of
the
reasonably
ascertainable
information,
and
(
iv)
assessing
the
relationship
between
the
fair
market
value
of
the
property
and
the
purchase
price.
The
proposed
rule
then
requires
the
environmental
professional
to
include
such
information
within
the
report
and
to
include
it
as
part
of
the
opinions
being
rendered.

Although
these
elements
should
go
into
a
purchaser's
ability
to
demonstrate
whether
it
qualifies
for
the
liability
defenses
under
CERCLA,
it
should
not
be
a
requirement
that
discussion
of
these
elements
be
included
in
the
auditor's
report
if
the
auditor
has
not
participated
in
these
tasks.
Requiring
the
report
prepared
by
the
site
assessor
to
contain
discussion
of
tasks
performed
by
others
not
employed
by
the
assessor
or
working
at
his
or
her
direction
could
be
an
unnecessary
source
of
potential
liability.
Further,
in
only
rare
instances
will
an
environmental
professional
be
trained
and
able
to
render
meaningful
opinions
on
the
above
four
subjects.
Thus,
most
opinions
rendered
in
these
areas
will
be
so
limited
by
qualifying
language
as
to
render
them
of
little
use
to
those
relying
on
the
all
appropriate
inquiry
process.

We
recommend
that
for
auditor
liability
reasons,
the
environmental
professional
be
required
in
the
report
only
to
disclose
the
information
made
available
to
them
during
the
course
of
their
inquiries,
but
not
to
require
this
information
to
be
a
part
of
the
opinions
given
by
the
environmental
professional.
693
Response:
The
final
rule
only
requires
that
the
environmental
professional
acknowledge
that
he
or
she
meets
the
requirements
to
qualify
as
an
environmental
professional
and
"
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."
This
statement
would
apply
only
to
the
statement
and
information
contained
in
the
report.
The
environmental
professional
is
not
required
to
certify
the
results.
In
addition,
the
environmental
professional
may
always
identify
as
data
gaps
any
information
not
received
from
the
prospective
landowner
or
grantee
that
may
affect
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
presence
of
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances.

The
individual
carrying
out
the
all
appropriate
inquiry
must
acknowledge
that
he
or
she
meets
the
requirements
of
an
environmental
professional.
That
is
the
intent
of
the
signature
requirement.

Commenter
Organization
Name:
Eden
Housing
Comment
Number:
0380
Excerpt
Number:
7
Excerpt
Text:
The
New
Rule
Appears
to
Make
the
Purchaser
(
as
Opposed
to
the
Environmental
Professional)
Significantly
Responsible
for
Discerning
Contamination
ASTM
E1527
distinguishes
between
the
responsibilities
of
the
"
user",
that
is
the
purchaser,
and
the
responsibilities
of
the
environmental
professional
hired
by
the
user
to
conduct
the
site
assessment.
The
structure
of
ASTM
E1527
recognizes
that
purchasers
hire
environmental
professionals
to
issue
Phase
I
reports
and
that
purchasers
will
rely
on
those
reports
as
a
defense
to
CERCLA
liability
should
any
contamination
problem
subsequently
come
to
light.
The
role
of
the
user
in
ASTM
E1527
is
minimal.
The
user
may
supply
certain
records
to
the
environmental
professional.
ASTM
E1527­
00
§
5.1.
Users
often
engage
title
companies
to
perform
title
searches
and
report
environmental
liens
or
use
limitations
to
the
environmental
professional
performing
the
site
assessment.
These
records
are
then
used
in
the
preparation
of
the
environmental
professionals
report.
The
new
rule
takes
an
entirely
different
approach,
appearing
to
make
the
user
significantly
responsible
for
discerning
contamination.
Rather
than
relying
on
a
report
prepared
by
a
professional,
a
purchaser
may
find
himself
facing
a
plaintiff's
accusations
that
he
is
responsible
for
ensuring
the
completeness
and
accuracy
of
the
Phase
I
report.

For
example,
proposed
§
312.30
states
that
"[
t]
hroughout
the
inquires,"
the
user
"
must
take
into
account
commonly
known
or
reasonably
ascertainable
information.
.
.
and
consider
such
information
when
seeking
to
identify
conditions
indicative
of
releases
or
threatened
releases."
This
language
appears
to
make
the
user
responsible
for
identifying
contamination.
The
user
hires
an
environmental
professional
to
conduct
an
investigation,
and
the
user
should
be
able
to
rely
on
the
professional's
report
without
herself
analyzing
information.
This
requirement
is
unclear
and
increases
uncertainty
by
appearing
to
increase
responsibilities
of
the
user
in
vague
and
undefined
ways
that
might
be
open
to
any
number
of
interpretations
by
plaintiffs
(
including
EPA)
in
cost
recovery
actions.
Eden,
its
staff,
and
most
purchasers
contemplating
redevelopment,
are
not
694
scientists.
We
cannot
be
held
responsible
for
identifying
contamination
ourselves.
We
must
be
able
to
rely
on
environmental
professionals
to
identify
contamination.

Response:
CERCLA
places
liability
for
releases
and
threatened
releases
of
hazardous
substances
upon
owners
and
operators
of
facilities
and
vessels.
Owners
and
operators
seeking
protection
from
liability
as
innocent
landowners,
bona
fide
prospective
purchasers,
or
contiguous
property
owners
must
comply
with
the
criteria
provided
in
the
statute
for
attaining
such
protections,
including
conducting
all
appropriate
inquiries.
The
statute
requires
that
all
appropriate
inquiries
include
an
inquiry
conducted
by
an
environmental
professional.
However,
the
responsibility
for
conducting
the
all
appropriate
inquiries
as
well
as
the
responsibility
for
complying
with
all
the
other
statutory
criteria
required
to
obtain
protection
from
liabilities
rests
with
the
owner
or
operator.

A
prospective
landowner
may
hire
an
environmental
professional
to
identify
the
environmental
conditions
of
a
property,
but
ultimate
responsibility
for
complying
with
the
statutory
criteria
rests
with
the
property
owner.

The
final
rule
retains,
as
part
of
the
federal
all
appropriate
inquiries
requirements,
the
consideration
of
any
specialized
knowledge
or
experience
of
the
prospective
landowner
(
or
grantee
if
the
grantee
is
or
will
be
the
property
owner).
The
final
rule
does
not
extend
this
requirement
beyond
what
already
was
required
under
CERCLA
since
1986
and
established
through
case
law.
The
final
rule
requires
that
all
appropriate
inquiries
include
the
consideration
of
specialized
knowledge
held
by
the
prospective
landowner
or
grantee
with
regard
to
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
rule
also
requires
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.
Case
law
related
to
the
innocent
landowner
defense
shows
that
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.
695
SECTION
4:
Comments
on
the
Economic
Impact
Analysis
Commenter
Organization
Name:
Lourie
Consultants
Comment
Number:
0353
Excerpt
Number:
3
Excerpt
Text:
It's
my
opinion
that
cost
for
complying
with
the
proposed
AAI
rule
will
not
be
significantly
different
from
the
cost
of
performing
a
thorough,
well­
conducted
ESA
according
to
current
ASTM
E
1527
guidelines.

Response:
EPA
thanks
the
commenter
for
the
stated
position
on
the
burden
under
the
rule.
EPA
agrees
that
the
cost
of
complying
with
the
AAI
rule
will
not
be
significantly
different
from
the
cost
of
complying
with
the
ASTM
E1527­
2000.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
5
Excerpt
Text:
The
cost
analysis
does
not
state
the
average
cost
range
that
was
used
in
estimating
the
economic
impact
but
the
document
states
that
in
addition
to
commercial
data
the
EPA
used
the
cost
for
Phase
I's
performed
on
Brownfield
sites.
These
cost
are
extremely
high
compared
to
the
commercial
property
transaction
Phase
I
costs.
In
our
areas
of
operations,
Phase
I's
average
costs
are
between
$
900
to
$
1600
for
a
standard
ASTM
Phase
I.

Response:
EPA
thanks
the
commenter
for
stating
his
position
regarding
the
potential
burden
of
the
rule.
In
the
Economic
Impact
Analysis
(
EIA)
for
the
proposed
rule,
EPA
developed
a
range
of
unit
costs
for
performing
a
Phase
I
ESA
under
the
ASTM
E1527­
2000,
where
the
range
was
based
on
the
distribution
of
properties
by
size
and
type.
In
the
EIA
developed
for
the
proposed
rule,
Exhibit
7­
3
presents
the
estimated
level
of
effort
(
in
hours)
under
the
ASTM
E1527­
2000
by
property
type
and
size
and
Exhibit
8­
1
presents
the
estimated
unit
costs
under
the
ASTM
E1527­
2000
by
property
type
and
size.
In
developing
the
cost
model,
EPA
estimated
total
incremental
costs
using
the
data
on
the
distribution
of
brownfields
properties
by
size.
These
data,
serving
as
a
proxy
variable
for
the
size
distribution
of
the
affected
properties,
were
used
to
derive
the
weighted
average
unit
cost
for
Phase
I
ESAs.
Our
estimated
weighted
average
unit
cost
of
a
Phase
I
ESA
is
very
close
to
the
2002
average
price
of
Phase
I
ESA
reported
by
the
Environmental
Data
Recourses
(
EDR).
Due
to
data
limitations,
we
did
not
adjust
the
weighted
average
unit
cost
for
regional
differences
which
may
exist.

Commenter
Organization
Name:
Small,
Arthur
Comment
Number:
0424
Excerpt
Number:
2
696
Other
Sections:
NEW
­
3.9
­
Considering
commonly
known
or
reasonably
ascertainable
information
about
the
property
Excerpt
Text:
It
is
through
this
prism
that
we
should
examine
the
proposed
section
312.30.
This
section
requires,
as
a
qualifying
condition
for
the
innocent
landowner
defense,
that
a
prospective
buyer
investigate
"
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property."
In
particular,
it
is
through
this
prism
that
we
should
examine
the
open­
ended
search
requirements
embodied
in
the
new
standard.
As
has
been
noted
elsewhere,
these
new
open­
ended
search
requirements
effectively
compel
potential
buyers
to
search
through
a
potentially
large
and
open­
ended
set
of
possible
information
sources.
These
include
unnamed
"
other"
persons
and
un­
enumerated
"
other"
sources.

Should
these
standards
in
fact
be
open­
ended?

First
I
wish
to
clarify
a
conceptual
point:
the
decision
to
include
an
open­
ended
search
requirement
should
be
judged
on
the
basis
of
marginal
costs
and
marginal
benefits.
The
key
questions
here
concern
a
calculation
at
the
margin.
How
much
additional
environmental
or
economic
benefits
accrue
to
society
(
if
any)
by
virtue
of
making
the
standard
open­
ended,
as
opposed
to
a
closedended
standard?
What
are
the
likely
additional
economic
and
environmental
costs
(
if
any)
along
this
margin?
Is
this
marginal
increase
in
search
requirements
justified
by
benefits
that
can
reasonably
be
anticipated?

In
this
vein
I
wish
to
take
issue
with
some
of
the
findings
of
the
cost­
benefit
analysis
performed
by
ICF
Consulting.
One
of
the
authors'
principle
findings
is
an
estimate
that
the
new
AAI
regulations
will
increase
the
transaction
costs
of
real
estate
sales
by
some
$
41­
47
per
transaction.
This
figure
is
associated
with
higher
costs
of
Phase
I
site
assessment
and
document
search.
ICF's
figure
may
in
fact
be
correct
(
although
I
do
have
quibbles
with
their
data
collection
protocols
[
Footnote:
It
raises
at
least
one
eyebrow
that
ICF
bases
this
estimate
on
an
internal
survey
of
its
own
staff.
By
contrast,
EDR
reports
an
estimated
increase
closer
to
$
200
per
transaction,
based
on
a
survey
of
over
500
environmental
professionals
from
multiple
firms
who
attended
conferences
in
nine
cities
earlier
this
year.
See
Environmental
Site
Assessment
Report
by
EDR
Business
Information
Services,
July
2004.].).
But
is
this
the
right
question?

I
believe
it
is
not
­
or
at
least,
it
is
not
the
central
question.
The
most
important
effect
of
making
these
standards
open­
ended
is
probably
not
how
they
increase
the
costs
of
those
transactions
that
eventually
go
through.
The
more
important
effect
of
the
new
standards
concerns
the
possibility
that
they
may
discourage
some
otherwise­
viable
transactions
from
being
undertaken
at
all.
Transactions
may
be
discouraged
not
so
much
because
of
the
small
increase
in
transaction
costs,
but
because
of
the
potentially
large
increase
in
residual
liability.

As
experts
on
the
subject
of
brownfields,
I
expect
you
don't
need
to
be
convinced
that
open­
ended
liabilities
have
been
shown
to
have
real
and
negative
impacts
on
incentives
to
undertake
projects.

Response:
The
Agency
disagrees
with
the
commenter
that
the
EIA
was
based
solely
on
an
internal
survey
of
ICF
Consulting's
professionals.
Members
of
the
Negotiated
Rulemaking
Committee,
including
four
individuals
with
extensive
experience
in
conducting
environmental
site
assessments
reviewed
697
the
estimated
labor
distribution,
unit
cost
estimates,
and
other
cost
analysis
assumptions
and
generally
agreed
with
the
estimates
developed
by
ICF
Consulting's
professional
engineers.

To
address
the
commenter's
concern
that
the
EDR
results
may
be
more
reliable
than
the
estimates
presented
in
the
EIA,
the
Agency
conducted
a
sensitivity
analysis
on
our
cost
estimates.
The
results
of
the
sensitivity
analysis
are
presented
in
an
addendum
to
the
EIA,
which
is
available
in
the
docket
for
the
final
rule.
We
show
that
the
final
rule
would
not
have
annual
impacts
in
excess
of
the
$
100
million
threshold
set
for
major
rules
even
if
the
final
rule
results
in
an
increase
in
the
price
of
a
Phase
I
ESA
by
an
amount
close
to
the
EDR
respondents'
estimate.
698
4.1
The
Impact
of
the
Rule
is
Underestimated
Commenter
Organization
Name:
Morris,
Michael
Comment
Number:
0114
Excerpt
Number:
3
Excerpt
Text:
My
final
and
greatest
disagreement
is
the
estimated
increase
in
cost
for
an
AAI
assessment.
The
increased
time,
which
is
required
to
complete
the
additional
criteria
required
by
AAI,
is
far
more
than
what
was
used
in
the
official
estimates.
Also
there
is
an
increased
requirement
for
a
higher
paid
professional
to
perform
or
review
the
work.
Finally
the
estimated
cost
for
a
professional
doing
one
additional
hour
of
the
work
is
above
the
total
increased
cost
used
in
the
model
(
for
AAI
comparated
to
the
full
ASTM).

Response:
In
the
final
rule,
EPA
modified
the
definition
of
an
environmental
professional.
In
response
to
the
concerns
raised
by
commenters,
the
final
rule
provides
that
individuals
who
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.

The
more
flexible
qualifications
within
the
definition
of
environmental
professional
provided
in
the
final
rule
most
likely
will
have
the
effect
of
decreasing
the
average
incremental
increase
in
hourly
labor
rates
associated
with
the
final
rule
activities.
It
is
important
to
note
that
both
the
EIA
developed
for
the
proposed
rule
and
the
addendum
estimate
a
weighted
average
incremental
cost
per
Phase
I
ESA,
where
the
increased
effort
under
the
final
rule
is
weighted
by
the
probability
that
incremental
hours
may
be
needed
to
address
the
final
rule
activities.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
17
Excerpt
Text:
There
are
several
other
possible
impacts
that
were
not
considered.

The
Review
of
IC's
identified
with
in
½
mile
of
the
property
represent
a
considerable
expansion
of
effort
beyond
current
industry
practice.
Especially
as
the
number
of
IC's
increase
with
time.
Requiring
the
environmental
professional
to
review
every
site
specific
IC
identified
is
burdensome
and
the
cost
would
need
to
be
factored
into
the
economic
analysis.
An
estimate
of
the
added
cost
of
review
of
an
IC
would
be
in
the
range
of
200
to
400
dollars.

The
rule
does
not
allow
the
use
of
reports
over
one
year
old
and
requires
updates
of
reports
over
180
days
old.
This
will
require
a
substantial
number
of
reports
to
be
redone.
I
am
not
sure
how
one
would
get
a
good
estimate
of
the
number
of
reports
that
would
be
redone.
It
is
probably
not
699
unreasonable
to
assume
it
could
be
in
the
range
of
5
to
10
%
of
the
reports
prepared
if
the
AAI
rule
is
widely
followed.

Depending
upon
how
the
issues
of
data
gaps,
interviews
with
past
owners
and
the
extent
of
visual
inspection
of
adjacent
properties
are
resolved
in
practice,
there
could
be
significant
cost
impacts.
If
all
of
these
activities
remain
in
the
purview
of
the
environmental
professional
and
are
conducted
as
required
by
the
principles
of
the
current
industry
practice
there
will
not
be
significant
additional
cost.
Arguably
all
of
these
items
can
and
are
done
now
if
appropriate.
If,
however,
it
is
contemplated
that
AAI
or
revisions
to
ASTM
1527
will
incorporate
requirements
for
these
specific
task
in
all
reports
there
will
be
additional
cost.

Response:
EPA
agrees
with
the
commenter
that
searching
for
institutional
controls
associated
with
properties
located
within
a
half
mile
of
the
subject
property
is
overly
burdensome.
The
final
rule
requires
that
the
search
for
institutional
controls
be
confined
to
the
subject
property
only.

With
respect
to
the
shelf­
life
of
previously
conducted
all
appropriate
inquiries,
or
environmental
site
assessment
reports,
EPA
clarified
the
language
in
the
final
rule
to
allow
for
the
use
of
information
contained
in
previously­
conducted
assessments,
even
if
the
information
was
collected
more
than
a
year
prior
to
the
purchase
date
of
the
subject
property.
The
final
rule
retains
the
provision
that
requires
that
many
portions
of
a
previously­
conducted
all
appropriate
inquiries
be
updated,
if
the
investigation
was
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property.
Because
the
rule
allows
for
the
use
of
previously
collected
information,
the
cost
of
updating
a
Phase
I
ESA
should
be
lower,
on
average,
than
the
cost
of
an
initial
Phase
I
ESA.
The
shelf­
life
requirement,
therefore,
would
not
increase
the
average
cost
of
conducting
all
appropriate
inquiries
investigations.

Commenter
Organization
Name:
Carvalho,
Michael
Comment
Number:
0257
Excerpt
Number:
1
Excerpt
Text:
EPA's
attempt
at
developing
new
regulations
to
satisfy
the
"
All
Appropriate
Inquiry"
(
AAI)
standard
under
CERCLA,
as
amended
by
the
recent
Brownfields
law,
has
resulted
in
a
proposed
rule
that
will
significantly
increase
the
cost
and
timeframe
for
completing
environmental
due
diligence.
Unfortunately,
EPA
significantly
and
materially
understates
these
costs,
which
should
be
carefully
considered
by
the
regulated
community
and
re­
examined
by
the
Agency
for
consistency
with
existing
federal
law.

In
its
proposed
rule
published
in
the
Federal
Register
on
August
28,
2004,
EPA
states
that
the
cost
increase
for
completing
a
Phase
I
Environmental
Site
Assessment
(
ESA)
is
"
estimated
to
be
between
$
41
and
$
47."
However,
an
informal
survey
of
the
regulated
community
and
literature
search
on
the
subject
finds
that
virtually
no
one
believes
EPA's
estimate.
Indeed,
most
professionals
engaged
in
the
prEPAration
and
review
of
Phase
I
ESAs
believe
that
the
additional
obligations
imposed
by
the
proposed
rule
will
actually
increase
costs
between
$
400
and
$
600
per
report
­
an
order
of
magnitude
greater
than
the
Agency
estimate.
An
informal
poll
of
attendees
at
700
ASTM's
AAI
Conference
held
in
Washington,
DC
on
October
5,
2004,
found
support
for
this
view.
In
fact,
none
of
the
Conference
panelists
­
with
the
notable
exception
of
EPA
­
were
"
on
record"
as
supporting
the
Agency's
cost
assessment.
Even
EPA's
own
review
considered
­
then
quickly
dismissed
­
alternative
projections
that
put
the
cost
increase
at
$
647
per
assessment.
Other
estimates
are
in
excess
of
$
1,500
to
meet
the
Agency's
proposed
requirements.

Assuming
EPA's
estimate
that
240,000
Phase
I
ESAs
are
performed
annually,
the
regulated
community
will
conservatively
be
expected
to
bear
an
additional
$
96,000,000
to
$
144,000,000
in
transactional
costs.
This
is
an
important
figure
as
regulatory
burdens
on
the
private
sector
in
excess
of
$
100,000,000,
annually,
trigger
Secs.
202
and
205
of
the
Unfunded
Mandate
Reform
Act
of
1995,
a
position
the
Agency
outright
rejects.
By
undervaluing
the
impact
of
the
proposed
regulation,
EPA's
proposed
rule
comes
in
"
under
the
radar
screen"
of
federal
law.

Why
the
increase
in
cost?
Much
of
the
increase
can
be
directly
attributed
to
EPA's
definition
of
"
Environmental
professional"
and
the
role
such
individuals
play
in
the
completion
of
Phase
I
ESAs.
Currently,
Environmental
professionals
and
the
companies
that
employ
them
are
able
to
staff
work
based
on
the
complexity
of
the
property
and
other
factors.
This
market­
driven
process
allows
environmental
consultants
to
develop
the
professional
abilities
of
junior
staff,
while
ensuring
that
more
complicated
sites
get
the
attention
that
they
deserve.
However,
because
EPA
specifically
" 
recommends
that
visual
inspections 
be
conducted
by
an
individual
who
meets
the
proposed
regulatory
definition
of
an
environmental
professional
the
staffing
of
such
projects
will
necessarily
change.
The
impact
of
such
staffing
requirements,
particularly
on
"
out­
of­
town"
projects,
will
result
in
the
higher­
cost
environmental
professional
completing
routine
tasks
that
are
currently
completed
by
junior
employees
under
the
guidance
of
seasoned
professionals.
Looking
forward,
the
inability
to
economically
train
up­
and­
coming
staff
will
necessarily
create
an
even
more
limited
number
of
individuals
who
meet
EPA's
definition,
which
will
result
in
a
tendency
to
further
restrict
access
to
this
market
and,
correspondingly,
to
increase
transaction
costs.
The
EPA's
economic
cost
assessment
fails
to
account
for
such
businesses
realties.

Moreover,
it
is
widely
assumed
that
the
Certification
requirements
under
the
proposed
rule,
coupled
with
the
potential
liability
for
professional
engineers
and
geologists,
and
the
need
to
evaluate
"
Data
Gaps"
will
introduce
more
conservatism
into
the
ESA
process
and
result
in
an
increasing
number
of
projects
moving
towards
more
complex
(
and
expensive)
Phase
II
sampling
and
testing.
The
costs
to
complete
Phase
II
ESAs
routinely
run
into
the
thousands
and,
often,
tens
of
thousands
of
dollars.
The
Agency's
cost
assessment
ignores
this
issue
completely.

Most
federal
agencies
are
required
by
law
to
submit
their
proposed
regulations
to
the
Office
of
Management
&
Budget,
among
others,
to
assess
the
economic
impact
of
these
rules
before
they
are
adopted.
There
is
both
good
and
well­
settled
reasoning
for
this
requirement.
While
EPA
did
retain
a
"
Beltway
economist"
to
prepare
an
evaluation
of
the
proposed
AAI
regulation,
the
report
left
many
environmental
practitioners
wondering
whether
the
study
was
prepared
with
a
specific
objective
in
mind,
rather
than
an
impartial
undertaking
of
such
modifications
on
industry
practice.
By
minimizing
the
real
cost
of
EPA's
proposed
regulation
in
an
attempt
to
meet
its
Congressional
mandate
with
the
least
amount
of
scrutiny,
the
Agency
does
a
disservice
to
the
similarly­
mandated
regulatory
review
process.
701
Response:
In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
an
environmental
professional,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
EPA
continues
to
recommend
that
the
on­
site
visual
inspection
be
performed
by
persons
meeting
the
qualification
of
an
environmental
professional.
The
definition
in
the
final
rule
is
less
stringent
than
the
proposed
one
allowing
for
most
people
currently
practicing
to
qualify
as
environmental
professionals.
Therefore,
we
do
not
believe
that
the
recommendation
would
impose
any
significant
cost
burden.

During
the
negotiated
rulemaking
process,
the
FACA
Committee
did
consider
the
option
of
requiring
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
requirements
but
did
not
adopt
it.
In
the
Economic
Impact
Analysis
developed
for
the
proposed
rule,
EPA
estimated
the
incremental
costs
of
requiring
sampling
and
analysis
as
part
of
the
all
appropriate
inquiries
rule
(
AAI
Option
3).

The
final
rule
does
not
require
the
conduct
of
analyses
and
investigations
usually
associated
with
Phase
II
site
assessment
standards.
In
fact,
as
shown
in
the
economic
impact
analysis
for
the
rule,
the
final
rule
includes
activities
that
are
similar
to
the
activities
required
under
the
interim
standard.
The
incremental
costs
associated
with
the
final
rule
therefore
are
estimated
to
be
low.

Commenter
Organization
Name:
Carvalho,
Michael
Comment
Number:
0257
Excerpt
Number:
3
Excerpt
Text:
EPA's
proposed
AAI
rule
will
undoubtedly
increase
the
cost
and
time
required
to
complete
environmental
assessments.
Whether
the
Agency's
proposed
rule
amounts
to
significant
regulatory
action
as
defined
under
applicable
federal
statutes
remains
to
be
seen.
The
Agency
should
reevaluate
its
cost
estimates
in
a
manner
that
is
consistent
and
respectful
of
both
federal
law
and
business
realty.

Response:
The
Economic
Impact
Analysis
developed
for
the
final
rule
was
developed
in
full
compliance
with
the
Office
of
Management
and
Budget
guidance
provided
in
Circular
A­
4.
Costs
associated
with
conducting
the
incremental
activities
required
by
the
proposed
rule
(
over
those
required
by
the
interim
standard)
were
estimated
across
a
variety
of
property
types
and
sizes.
A
weighted
average
incremental
cost
per
property
assessment
was
then
estimated.
EPA
also
estimated
annual
costs
based
upon
an
industry
estimate
of
the
total
number
of
environmental
site
assessments
performed
annually.
For
a
full
explanation
of
how
the
cost
estimates
were
derived,
please
see
"
Economic
Impact
Analysis
for
the
All
Appropriate
Inquiries
Regulation,"
August
2004,
which
is
available
in
the
docket
for
the
final
rule.
702
Commenter
Organization
Name:
Miles
&
Stockbridge
Comment
Number:
0277
Excerpt
Number:
1
Excerpt
Text:
1.
Economic
Impact
­
In
the
prEPAration
of
our
comments,
Miles
&
Stockbridge
reviewed
the
proposed
rule's
Economic
Impact
Analysis
(
EIA),
dated
August
3,
2004
(
conducted
by
ICF
Consulting).
After
a
careful
review,
we
have
determined
that
the
economic
impact
analysis
has
several
shortcomings,
such
as
the
failure
to
accurately
address
the
financial
impacts
that
this
rule
will
have
on
small
businesses.
Although
the
Agency
agrees
that
the
proposed
standards
on
how
to
conduct
"
all
appropriate
inquiries"
will
be
an
additional
workload
burden
on
an
innocent
landowner,
a
contiguous
property
owner,
or
a
bona
fide
prospective
purchaser,
the
cost
calculations
are
not
accurately
portrayed.
EPA's
cost
estimates
were
in
a
range
of
$
41
to
$
47
for
this
additional
workload.
This
is
unrealistic,
given
that
this
workload
is
associated
with
broader
due
diligence
standards.

The
current
established
practices,
including
CERCLA
interim
standards
rely
on
due
diligence
standards
established
by
the
American
Society
for
Testing
and
Materials
(
ASTM)
in
its
Standard
E1527
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
process").
EPA's
proposed
rule
will
introduce
performance­
based
standards
that
are
similar
to
the
ASTM
standards.
However,
as
mentioned
above,
several
of
the
new
AAI
standards
are
broader
in
scope.
These
broader
standards
require
visual
inspections,
interviews
with
previous
owners
and
adjoining
neighbors,
historical
reviews,
reviews
of
government
records,
searches
for
environmental
cleanup
liens,
land
use
records,
analysis
and
determination
of
whether
purchase
prices
are
reflective
of
fair
market
values,
and
service
requirements
of
an
environmental
professional.
Although,
these
additional
requirements
may
not
influence
a
large
company's
redevelopment
efforts,
it
may
prove
to
be
a
significant
disadvantage
for
a
small
business.

2.
180
Day
Time
Limit
­
The
proposed
rule
not
only
requires
additional
site
information,
but
also
establishes
time
limits
associated
with
the
date
of
the
inquiry.
Site
information
will
warrant
updates
for
information
collected
more
than
180
days
prior
to
the
date
of
purchase
of
the
property.
Information
that
may
potentially
require
updates
includes:
interviews
with
past
and
present
owners,
searches
for
environmental
cleanup
liens,
review
of
Local,
State
and
Federal
records,
visual
inspections,
and
a
declaration
by
an
environmental
professional.
These
tasks
and
attendant
costs
may
not
be
a
significant
issue
or
a
'
deal
breaker'
for
a
large
business
that
usually
relies
on
hired
consultants
to
update
this
information.
However,
such
cost
will
have
a
significant
financial
burden
on
a
small
business,
or
small
innocent
purchaser,
if
for
any
reason
the
property
transaction
is
delayed.
Earlier
due
diligence
work
would
be
at
risk,
resulting
in
delay,
expense
and
replication
of
efforts.
Unfortunately,
the
Economic
Impact
Analysis
did
not
consider
or
calculate
the
time
and/
or
cost
this
requirement
would
have
on
replicating
the
inquiry
efforts,
especially
when
the
property
transaction
is
delayed.
Our
experience
suggests
that
the
average
length
of
a
transaction
typically
will
exceed
180
days.
The
EIA
needs
a
more
thorough
analysis
of
time
that
is
required
for
a
commercial
property
transfer.
The
Agency
may
already
have
a
great
deal
of
the
data
that
could
be
analyzed
in
its
internal
audits
and
reports
associated
with
the
Brownfield's
program
nationally.
703
Response:
EPA
estimates
that
the
final
rule
will
not
significantly
impact
small
entities
for
the
following
reasons.

In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
an
environmental
professional,
the
final
rule
provides
that
individuals
that
do
not
meet
the
required
educational
requirement
(
i.
e.,
do
not
have
a
Baccalaureate
or
higher
degree
in
a
field
of
engineering
or
science
from
an
accredited
institution
of
higher
education)
will
qualify
as
an
environmental
professional
if
they
have
ten
(
10)
years
of
relevant
full­
time
experience
in
the
conduct
of
all
appropriate
inquiries
investigations,
or
Phase
I
environmental
site
assessments.
EPA
continues
to
recommend
that
the
on­
site
visual
inspection
be
performed
by
persons
meeting
the
qualification
of
an
environmental
professional.
The
definition
in
the
final
rule
is
less
stringent
than
the
proposed
definition,
allowing
for
most
people
currently
practicing
to
qualify
as
environmental
professionals.
Therefore,
we
do
not
believe
that
the
recommendation
would
impose
any
significant
cost
burden.

With
respect
to
historical
sources
review,
the
final
rule
does
not
require
any
additional
sources
to
be
reviewed
that
are
not
already
within
the
realm
of
sources
required
to
be
consulted
by
the
ASTM
E1527
standard.
With
respect
to
governmental
records
review,
we
recognize
that
the
proposed
rule
did
extend
the
search
for
institutional
controls
to
a
one­
half
mile
radius
of
the
subject
property
while
the
search
requirement
under
the
ASTM
E1528­
2000
standard
is
limited
to
the
subject
property.
EPA,
however,
has
revised
the
search
requirement
under
the
final
rule
by
limiting
the
search
for
institutional
controls
to
the
subject
property.

Under
the
ASTM
E1527­
2000
standard,
it
is
the
user's
responsibility
to
check
for
environmental
liens
that
are
currently
recorded
against
the
subject
property,
and
to
report
these
to
the
environmental
professional
who
is
conducting
the
Phase
I
ESA.
The
requirements
in
the
final
rule
are
the
same;
therefore,
there
will
be
no
incremental
cost
(
labor
or
expenses)
incurred
due
to
promulgation
of
the
final
rule.

With
respect
to
the
requirement
that
the
environmental
professional
consider
whether
or
not
the
property's
purchase
price
reasonably
reflects
the
fair
market
value
of
the
property
(
assuming
the
property
is
not
contaminated),
the
final
rule
does
not
require
that
a
real
estate
appraisal
be
conducted.
Therefore,
there
is
no
reason
for
a
more
extensive
search
to
have
to
be
performed
in
response
to
the
final
rule
than
what
is
currently
required
under
the
ASTM
E1527­
2000.

The
final
rule
does
not
explicitly
require
interviews
with
past
owners
and
occupants,
but
provides
that
the
environmental
professional
include
interviews
of
past
owners,
operators,
or
occupants
as
necessary
to
meet
the
objectives
of
the
rule
and
in
accordance
with
the
performance
factors.
We
recognize
that
such
interviews
will
need
to
be
performed
in
the
case
of
some
properties
and
we
revised
the
cost
estimates
for
the
final
rule
to
properly
account
for
the
incremental
burden
associated
with
conducting
additional
interviews.
The
incremental
burden,
however,
is
expected
to
be
minimal.
The
revised
cost
estimates
are
provided
in
the
addendum
to
the
EIA,
which
is
available
in
the
docket
for
the
final
rule.

With
respect
to
shelf­
life
of
ESA
reports,
EPA
clarified
the
regulatory
language
in
the
final
rule
to
allow
for
the
use
of
information
contained
in
previously­
conducted
assessments,
even
if
the
704
information
was
collected
more
than
a
year
prior
to
the
purchase
date
of
the
subject
property.
EPA
agrees
with
the
commenters
that
the
shelf­
life
requirement
may
result
in
a
small
fraction
of
Phase
I
ESAs
been
redone.
Because
the
rule
allows
for
the
use
of
previously
collected
information,
the
cost
of
re­
doing
a
Phase
I
ESA
should
be
lower,
on
average,
than
the
cost
of
the
initial
Phase
I
ESA.
The
shelf­
life
requirements
of
the
final
rule,
therefore,
are
not
expected
to
increase
the
average
cost
of
Phase
I
ESAs.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
7
Excerpt
Text:
The
preamble
includes
(
pages
52569­
52572)
a
comparison
of
the
cost
to
perform
an
assessment
in
accordance
with
the
proposed
rule
to
the
current
cost
to
prEPAre
an
ASTM
1527­
00
level
assessment,
and
states
that
the
cost
increase
would
be
$
41­$
47/
site,
or
$
539/
site
if
an
environmental
professional
performed
all
the
work.
The
comparison
notes
the
following
assumptions,
which
were
the
basis
for
the
comparison:
­
A
reduced
burden
for
the
conduct
of
interviews
in
the
cases
where
the
property
is
abandoned;
­
An
increased
burden
associated
with
documenting
recorded
environmental
cleanup
liens;
­
An
increased
burden
for
documenting
the
comparison
of
price
vs.
market
value
of
a
property,
and
concluding
the
reason;
and,
­
An
increased
burden
for
recording
degree
of
obviousness.

Comment:
The
ultimate
cost
difference
will
obviously
depend
on
what
changes
occur
to
the
proposed
rule,
along
the
lines
of
our
comments
presented
here.
However,
based
on
the
proposed
rule
as
it
currently
exists,
these
costs
appear
to
grossly
underestimate
the
potential
cost
increase.
We
currently
meet
or
exceed
the
ASTM
1527­
00
standard
in
all
reports,
including
performance
of
municipal
research,
which
we
understand
is
not
always
performed
in
the
industry.
Our
comments
are
based
on
incremental
increases
that
we
see
over
that
baseline
of
assessment.
We
have
provided
our
comments
relative
to
each
of
the
assumptions,
then
added
points
which
we
feel
were
not
addressed
in
the
cost
analysis.

­
Interviews
­
In
the
vast
majority
of
cases,
the
interview
burden
increases,
as
the
requirements
now
include
not
just
current
owners
or
operators,
but
past
owners,
operators
or
occupants.
The
time
required
to
locate
and
interview
these
individuals
is
likely
to
be
anywhere
from
one
to
several
hours.
In
the
case
chosen
for
the
evaluation,
the
burden
to
interview
past
owners,
operators
and
occupants
is
not
reduced,
and
the
need
to
interview
the
current
owner,
etc.
is
replaced
by
an
interview
of
abutter(
s).
Therefore,
we
do
not
agree
that
the
burden
would
be
reduced
even
in
this
case.
We
feel
that
the
price
increase
for
this
portion
of
the
work
would
be
in
the
range
of
$
70
­
$
210
(
assuming
an
average
billing
rate
of
a
non­
environmental
professional
of
$
70/
hr,
which
holds
for
the
remainder
of
these
examples).

­
Environmental
Liens
(
which
ENSR
understands
to
include
Engineering
and
Institutional
controls)
­
Based
on
the
current
requirement
of
researching
these
to
a
one­
half
mile
radius,
the
lack
of
publicly
available
databases
for
these
in
several
states
(
EDR
reports
that
Institutional
Controls
databases
are
available
in
35
states,
and
Engineering
Controls
database
are
available
in
only
13
705
states),
and
the
implication
of
the
need
(
per
the
preamble)
to
perform
extensive
municipal
research
to
obtain
this
information
for
all
sites
within
one­
half
mile
radius,
and
the
increased
labor
could
range
from
at
least
several
hours
to
over
a
day
(
and
perhaps
several
days
in
the
case
of
an
urban
area).
Here
we
are
estimating
this
at
$
210
(
3
hours)
to
$
560
(
one
day).
We
have
hopes
that
the
final
rule
will
clarify
that
the
intent
is
not
to
perform
the
detailed
municipal
research
beyond
the
site
and
abutters,
which
would
make
the
lower
number
the
more
likely.
Add
to
this
the
likely
need
to
perform
a
title
search
in
order
to
be
certain
of
the
presence
or
absence
of
such
a
control
to
the
subject
site,
and
the
cost
per
site
increases
by
another
$
250
­
$
300.

­
Price
vs.
Market
Value
­
As
this
will
be
a
statement
of
the
buyer's
opinion,
this
is
not
considered
likely
to
significantly
impact
costs,
beyond
that
of
an
interview
question.

­
Degree
of
Obviousness
­
Again,
as
a
statement
of
opinion
and
the
inclusion
of
recommendations,
this
is
not
considered
to
add
significantly
to
overall
costs,
and
impact
would
likely
be
in
the
range
of
$
35/
site
(
1/
2
hour).

­
Tribal
Records
­
The
evaluation
does
not
consider
an
increased
burden
for
researching
tribal
records.
According
to
EDR,
46
states
have
tribal
databases
for
USTs
and
LUSTs
only
(
via
EPA
records).
All
other
tribal
record
research
would
have
to
be
performed
by
interviews
with
the
tribal
government,
and
direct
record
review.
If
performed
in
concurrence
with
municipal
research
(
i.
e.
if
the
site
and
vicinity
are
in
multiple
jurisdictions)
and
the
tribal
government
is
present
in
the
site
locale,
this
could
add
up
to
a
few
hours
to
the
process
(
estimated
at
$
140).
If
the
tribal
government
is
present
at
a
remote
location,
this
cost
would
be
increased
further.
We
have
not
calculated
this
further
increase,
as
we
understand
that
a
minority
of
sites
would
fall
under
this
category,
although
we
do
not
expect
the
numbers
to
be
insignificant.

­
Data
Gap
Documentation
­
The
proposed
rule
carries
strong
requirements
for
documentation
of
data
gaps,
efforts
made
to
fill
them,
and
an
evaluation
(
for
each
data
gap)
of
whether
or
not
this
affects
the
environmental
professional's
ability
to
make
a
conclusion
regarding
the
potential
for
the
site
to
have
been
impacted
by
a
release
or
threat
of
release.
We
expect
this
to
add
to
the
report
writing
burden
at
the
level
of
one
to
two
hours,
depending
on
the
availability
of
records
for
the
site
($
70
­
$
140).

Response:
EPA
thanks
the
commenter
for
providing
detailed
explanations
on
the
activities
that
would
be
associated
with
a
higher
level
of
effort
under
the
proposed
rule
than
estimated
in
the
EIA.

The
final
rule
does
not
explicitly
require
interviews
with
past
owners
and
occupants,
but
provides
that
the
environmental
professional
include
interviews
of
past
owners,
operators,
or
occupants
as
necessary
to
meet
the
objectives
and
performance
factors
of
the
final
rule.
We
agree
with
the
commenters
that
locating
past
owners
and
occupants
may
be
more
time
consuming
than
locating
the
current
owners
and
occupants
of
a
property
and
that
in
some
cases
the
environmental
professional
will
need
to
complete
the
full
interview
with
the
current
owner
before
determining
that
it
is
necessary
to
interview
a
past
owner
or
occupant.
706
In
response
to
this
and
similar
public
comments,
EPA
revised
the
cost
estimate
developed
for
the
proposed
rule
to
account
for
the
incremental
burden
associated
with
locating
and
interviewing
past
owners
and
occupants.
The
revised
cost
estimates
are
provided
in
the
addendum
to
the
EIA,
which
is
available
in
the
docket
for
the
final
rule.

With
respect
to
the
requirements
to
search
for
institutional
controls,
EPA
agrees
with
the
commenter
that
the
EIA
underestimated
the
incremental
cost
associated
with
this
requirement.
The
proposed
rule
extended
the
search
for
institutional
controls
to
a
one­
half
mile
radius
of
the
subject
property,
while
the
search
requirement
under
the
ASTM
E1527­
2000
standard
is
limited
to
the
subject
property.
Had
the
EIA
for
the
proposed
rule
properly
accounted
for
the
extended
scope
of
the
institutional
controls
search
requirement
(
as
it
was
included
in
the
proposed
rule),
the
estimated
average
incremental
cost
per
Phase
I
ESA
would
have
been
higher
than
$
47.
EPA,
however,
has
revised
the
requirements
for
searching
for
institutional
controls
under
the
final
rule
by
limiting
the
search
to
the
subject
property.
This
revision
is
in
line
with
the
commenters'
recommendations
and
the
search
requirements
for
institutional
controls
in
the
ASTM
E1527­
2000
standard.
Therefore,
due
to
the
revision
of
the
requirements,
the
EIA
does
not
need
to
be
revised
to
account
for
incremental
costs.

With
respect
to
the
search
for
environmental
liens,
we
disagree
with
the
commenter
that
this
requirement
would
impose
an
incremental
burden
on
a
prospective
property
purchaser.
The
EIA
developed
for
the
proposed
rule
assumed
that,
under
the
ASTM
E1527­
2000
standard,
it
is
the
user's
responsibility
to
check
for
environmental
liens
that
are
currently
recorded
against
the
subject
property,
and
to
report
these
to
the
environmental
professional
conducting
the
Phase
I
ESA.
The
requirements
in
the
final
rule
are
no
different;
therefore,
there
will
be
no
incremental
cost
(
labor
or
expenses)
incurred
as
a
result
of
the
final
rule.
Thus,
even
if
the
cost
of
a
title
search
is
explicitly
accounted
for
under
the
base
case
and
under
the
final
rule
in
the
EIA,
the
estimated
average
incremental
cost
per
transaction
would
stay
unchanged.

With
respect
to
the
requirement
that
the
purchaser
of
the
property
consider
whether
or
not
the
property's
purchase
price
reflects
the
fair
market
value
of
the
property
(
assuming
the
property
is
not
contaminated),
we
agree
with
the
commenter
that
this
requirement
will
not
significantly
impact
the
cost
of
Phase
I
ESAs
since
the
final
rule
does
not
require
that
a
real
estate
appraisal
be
conducted.
The
EIA
did
incorporate
an
incremental
labor
hour
burden
in
the
cost
analysis
for
the
rule
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property.
The
EIA
assumed,
however,
that
this
requirement
would
impact
only
a
fraction
of
the
total
number
of
properties
assessed
annually.

With
respect
to
the
documentation
requirement
regarding
the
degree
of
obviousness
of
contamination,
the
incremental
burden
suggested
by
the
commenter
is
consistent
with
the
EIA
incremental
labor
hour
estimate,
which
ranges
from
0.5
to
1
hour
per
Phase
I
ESA
depending
on
the
property
type/
size.

With
respect
to
the
requirement
to
search
tribal
records,
EPA
clarifies
in
the
preamble
to
the
final
rule
that
tribal
records
need
only
be
searched
for
and
reviewed
in
those
instances
where
the
subject
property
is
located
on
or
near
tribal­
owned
lands.
When
such
records
are
not
available,
necessary
information
should
be
sought
from
other
sources.
The
EIA
assumed
that
this
requirement
would
be
707
fulfilled
to
the
extent
that
tribal
records
are
easily
available,
through,
for
example,
the
EDR
database.
If
such
records
are
not
available,
it
is
likely
that
the
environmental
professional
will
attempt
to
obtain
the
relevant
information
during
the
interview
process,
and
therefore
there
will
be
no
incremental
cost
associated
with
the
requirement.

With
respect
to
the
requirement
for
documenting
data
gaps,
the
EIA
did
not
explicitly
account
for
this
performance
factor.
Data
gaps
will
need
to
be
documented
only
in
the
cases
in
which
the
environmental
professional
cannot
perform
one
or
more
of
the
required
tasks.
The
EIA
implicitly
assumed
that
if
the
documentation
of
data
gaps
is
necessary,
the
time
saved
by
omitting
the
required
tasks
would
offset
the
time
needed
for
the
documentation.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
5
Other
Sections:
NEW
­
6.6
­
Impact
of
the
rule
on
the
cost
of
liability
insurance
Excerpt
Text:
The
Pre­
Amble
further
states
that
the
environmental
professional's
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
may
invalidate
defenses
to
CERCLA
liability.
This
essentially
raises
the
standard
of
professional
care
for
the
environmental
professional
to
perfection.
If
any
condition
is
not
identified
by
the
environmental
professional,
the
landowner
might
lose
CERCLA
defenses,
even
if
the
environmental
professional
strictly
followed
the
AAI
Rules.
Certainly,
the
EPA
is
far
from
perfect,
so
how
can
it
expect
the
environmental
professional
to
be
in
every
case?
R&
W
recommends
a
specific
statement
addressing
the
environmental
professional's
standard
of
care
be
included
in
the
AAI
rules.
Failure
to
do
so
will
increase
the
cost
of
the
inquiries
due
to
the
increased
cost
of
liability
insurance,
and
will
create
a
need
for
environmental
professional's
to
charge
a
risk
premium
relative
to
E­
1527
Phase
I
ESAs
due
to
inevitable
increases
in
litigation.
These
costs
were
not
addressed
in
the
Economic
Impact
Analysis
and,
therefore,
must
be
controlled
in
the
Proposed
Rules.
R&
W
requests
that
the
EPA
remove
this
statement
from
the
Pre­
Amble
and
specifically
address
this
vital
issue
in
any
future
Proposed
Rules.

Response:
In
today's
final
rule,
§
312.20(
g)
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
petroleum
products,
and
controlled
substances).
The
final
rule
requires
such
persons
to
identify
the
sources
of
information
consulted
to
address
the
data
gaps
and
comment
upon
the
significance
of
the
data
gaps
with
regard
to
the
ability
to
identify
conditions
indicative
of
releases
or
threatened
releases.
Section
312.21(
c)(
2)
also
requires
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.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
708
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

The
commenter
is
taking
an
extreme
interpretation
of
EPA's
discussion
of
the
importance
of
conducting
a
sound
and
thorough
all
appropriate
inquiries
investigation.
The
intent
of
the
preamble
discussion
is
to
note
that
every
effort
should
be
made
to
conduct
a
thorough
all
appropriate
inquiries
investigation
so
that
the
prospective
property
owner
is
able
to
comply
with
all
of
the
statutory
provisions
required
for
obtaining
protection
from
CERCLA
liability.
Should
an
undiscovered
release
because
an
issue
at
a
later
date,
after
a
person
has
acquired
a
property,
the
landowner's
defense
may
in
part
or
in
whole
depend
upon
his
or
her
ability
to
demonstrate
the
caliber
and
quality
of
the
all
appropriate
inquiries
investigation
that
was
completed
prior
to
acquiring
the
property.

The
conduct
of
an
incomplete
all
appropriate
inquiries
investigation,
or
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.
Failure
to
comply
with
any
of
the
statutory
requirements
may
be
problematic
in
a
claim
for
protection
from
liability.

It
is
not
clear
that
the
insurance
industry
would
react
to
the
final
rule
as
the
commenter
has
indicated.
It
is
also
possible,
for
example,
that
insurance
companies
will
cut
premiums
for
all
policies
that
might
be
affected
by
CERCLA
as
a
result
of
additional
liability
protection
the
final
rule
will
offer
to
prospective
purchasers
who
follow
the
requirements
of
the
final
rule.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
15
Other
Sections:
NEW
­
3.3.1
­
Scope
of
the
review
­
how
far
back
in
time/
history
historical
records
must
be
reviewed
Excerpt
Text:
Furthermore,
the
proposed
§
312.24(
b)
does
not
limit
the
duration
of
investigation
for
historically
unimproved
properties.
The
E
1527­
00
requirement
to
investigate
such
properties
back
to
1940
is
more
economically
efficient
and
poses
virtually
no
threat
of
not
identifying
conditions
posing
material
environmental
risk.
This
has
made
the
E
1527­
00
process
much
more
efficient.
The
Economic
Impact
Analysis
failed
to
address
the
increased
requirements
over
the
E
1527­
00
requirements.
Therefore,
it
understates
the
impact
of
the
Proposed
Rules.
R&
W
requests
that
the
709
EPA
further
clarify
the
historical
research
requirement
to
avoid
needless
historical
investigation
of
vacant
property
(
prior
to
1940).
In
the
absence
of
such,
R&
W
requests
that
the
EPA
provide
a
realistic
economic
assessment
of
this
section
of
the
Proposed
Rules.

Response:
Historical
land
use
is
typically
determined
through
interviewing
current
and
past
property
owners,
but
also
largely
through
reviewing
of
historical
fire
insurance
maps,
aerial
photographs,
topographic
maps,
tax
files,
land
title
records,
etc.
These
historical
sources
are
reviewed
under
the
ASTM
E1527­
2000
standard;
therefore,
there
will
be
no
additional
labor
or
cost
burden
to
collect
and
review
these
sources
under
the
final
rule.
With
respect
to
the
required
timeframe
for
reviewing
historical
records,
the
requirements
of
the
rule
are
essentially
the
same
as
the
ASTM
E1527­
2000
standard.
The
ASTM
standard
requires
(
at
section
7.3.2)
that
"
all
obvious
uses
of
the
property
shall
be
identified
from
the
present,
back
to
the
property's
obvious
first
developed
use,
or
back
to
1940,
whichever
is
earlier."
[
emphasis
added]
The
final
rule
for
all
appropriate
inquiries
requires
that
historical
documents
and
recorders
be
reviewed
"
for
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
government
purposes."
Given
that
the
requirements
of
the
final
rule
are
essentially
the
same
as
the
requirements
under
the
interim
standard,
there
will
be
no
incremental
cost
associated
with
the
historical
records
review
requirement
of
the
final
rule.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
20
Other
Sections:
NEW
­
3.9.2
­
The
Agency
should
provide
additional
guidance
Excerpt
Text:
Section
312.30,
Commonly
Known
or
Reasonably
Ascertainable
Information
about
the
Property,
is
not
workable
in
its
current
form.
The
implication
to
interview
owners
and
occupants
of
adjoining
property
poses
the
same
confidentiality
and
security
law
issues
as
mentioned
previously
about
interviewing
past
owners,
occupants,
etc.
The
suggestion
that
the
environmental
professional
should
review
or
consult
"
Others
with
knowledge
of
the
subject
property;
and
other
sources
of
information
[
e.
g.,
newspapers,
websites,
community
organizations,
local
libraries,
and
historical
societies]"
is
too
vague
in
the
absence
of
some
further
guidance.
ASTM
Committee
E­
50
addressed
this
with
practically
reviewable
and
likely
to
be
useful
limitations.
The
sources
cited
in
the
example
cannot
be
reviewed
on
the
property­
by­
property
basis.
For
example,
does
the
EPA
contemplate
microfilms
of
newspapers
be
searched
back
to
the
beginning
of
the
collection
for
each
property
having
some
form
of
a
data
gap?
The
Economic
Impact
Analysis
suggests
no
further
costs
will
be
incurred
by
the
proposed
AAI
rules
than
with
E
1527­
00.
Thus,
the
Analysis
is
clearly
not
consistent
with
the
Proposed
Rules
and,
therefore,
understates
the
impact
of
the
Proposed
Rules.
R&
W
requests
that
the
EPA
reform
the
Proposed
Rules
to
include
specific
limitations
similar
to
E
1527­
00.

Response:
The
final
rule
requires
that
the
environmental
professional
to
supplement
the
searches
and
reviews
of
historical
and
governmental
records
with
commonly
known
or
reasonably
ascertainable
710
information
about
the
subject
property.
This
requirement
was
included
in
the
previous
provisions
for
the
CERCLA
innocent
landowner
defense
and,
therefore,
is
not
an
incremental
burden
imposed
by
the
final
rule.
The
final
rule
provided
a
few
examples
of
where
commonly
known
or
reasonably
ascertainable
information
may
be
found.
The
final
rule
does
require
that
the
suggested
sources
be
used,
only
that
commonly
known
or
reasonably
ascertainable
information
be
accounted
for
during
the
inquiries.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
21
Excerpt
Text:
In
addition
to
the
technical
issues
raised
above,
the
Economic
Impact
Analysis
(
EIA)
is
fundamentally
flawed.
ICF
Consulting
derived
hourly
cost
of
staff
and
consulting
experience
with
Phase
I
ESAs
from
only
one
source:
itself.
The
EIA
cites
several
polls
conducted
by
EDR,
but
fails
to
cite
the
recent
poll
of
environmental
professionals
by
EDR.
These
polls
indicate
that
the
vast
majority
of
environmental
professionals
and
associated
consulting
staff
interviewed
believe
the
cost
of
the
AAI
inquiries
as
proposed
will
increase
by
greater
than
10%
over
the
current
E
1527­
00.
This
would
be
approximately
four
times
the
increase
estimated
by
the
Economic
Impact
Analysis.
R&
W
requests
that
the
EPA
perform
a
new
Analysis
to
address
this,
as
wells
as
other
flaws
and
omissions
described
previously.

The
EIA
also
states,
"
The
proposed
regulation
also
should
not
result
in
any
increase
in
the
amount
of
work
performed
by
those
individuals
who
meet
the
environmental
professional
definition
 "
R&
W
cannot
speak
to
nationwide
practices,
but
in
the
midwestern
states,
it
is
common
to
use
experienced
environmental
staff
who
may
not
meet
the
definition
of
environmental
professional
to
perform
site
observations
on
low
risk
properties
(
e.
g.,
vacant
land,
commercial
office
buildings,
etc.).
While
the
Proposed
Rules
do
not
require
it,
the
Pre­
Amble
specifically
recommends
that
site
observations
be
performed
by
an
environmental
professional.
R&
W
restates
its
request
that
the
EPA
obtain
an
EIA
that
includes
all
the
requirements
of
the
Proposed
Rules
and
guidance
in
the
Pre­
Amble.

The
EIA
suggests
that
review
of
federal,
state,
tribal,
and
local
government
records
" 
is
not
likely
to
impose
any
additional
burden
hours
above
the
current
environmental
assessment
practices
 "
This
does
not
account
for
the
fact
that
reasonably
ascertainable
lists
of
brownfield
sites,
engineering
controls
and
institutional
controls
are
not
available.
The
EIA
does
not
describe
how
this
additional
information
is
going
to
be
obtained
at
no
cost
increase
compared
to
the
E
1527­
00.

The
EIA
makes
similar
discounting
of
the
commonly
known
or
reasonably
ascertainable
requirements
of
the
Proposed
Rules.
Without
qualifications
such
as
'
likelihood
to
be
useful'
and
'
able
to
be
searched
by
property,'
this
requirement
is
a
significant
expansion
over
the
E
1527­
00
practice.
The
EIA
patently
ignores
this.

As
stated
above,
the
proposed
scope
of
the
AAI
historical
investigation
is
significantly
more
vague
and
more
onerous
than
E
1527­
00,
but
the
EIA
states,
"
The
proposed
regulation
will
not
impose
any
additional
burden
hours
above
the
current
environmental
assessment
practices."
R&
W
restates
711
its
request
that
the
EPA
obtain
an
Analysis
that
includes
all
the
requirements
of
the
Proposed
Rules
and
guidance
in
the
Pre­
Amble.

The
EPA
claims
that
the
Proposed
Rules
will
increase
the
cost
of
the
"
all
appropriate
inquiry"
by
$
46.
This
is
clearly
understated,
as
described
above.
Furthermore,
the
Proposed
Rules
require
property
developers
or
investors
to
consult
with
a
title
company
in
order
to
consider
whether
the
purchase
price
of
a
property
reasonably
reflects
the
fair
market
value
of
the
property,
should
the
property
be
contaminated.
Property
developers
or
investors
could
incur
costs
estimated
at
$
300
to
complete
this
single
requirement.
R&
W
requests
that
the
EPA
re­
evaluate
the
increase
in
cost
that
the
Proposed
Rules
will
create.

Response:
EPA
thanks
the
commenters
for
providing
detailed
explanations
on
the
incremental
burden
under
the
proposed
rule.

To
address
the
commenter's
concern
that
the
EDR
results
may
be
more
reliable
than
the
estimates
presented
in
the
EIA,
the
Agency
conducted
a
sensitivity
analysis
in
the
addendum
to
the
EIA.
We
show
that
if
the
EDR
survey
results
are
correct,
the
incremental
cost
of
the
final
rule
may
be
higher
than
we
originally
estimated.
However,
the
final
rule
would
not
have
annual
impacts
in
excess
of
the
$
100
million
threshold
set
for
major
rules
even
if
the
final
rule
increases
the
cost
per
Phase
I
ESA
by
an
amount
close
to
the
EDR
respondents'
estimate.

In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
environmental
professional,
EPA
modified
the
definition
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
Although
EPA
continues
to
recommend
that
the
on­
site
visual
inspection
be
performed
by
persons
meeting
the
qualification
of
an
environmental
professional,
the
definition
in
the
final
rule
is
less
stringent
than
the
proposed
one
and
will
allow
for
most
people
currently
practicing
to
qualify
as
environmental
professionals.
Therefore,
EPA
estimates
that
no
additional,
or
incremental
cost,
is
associated
with
the
need
to
hire
an
individual
who
meets
the
definition
of
environmental
professional
to
oversee
the
conduct
of
the
all
appropriate
inquiries.

With
respect
to
requirements
in
the
final
rule
to
review
federal,
state,
tribal,
and
local
government
records,
the
final
rule
requires
that
governmental
records
of
engineering
controls
and
institutional
controls
be
searched
only
for
information
on
engineering
and
institutional
controls
at
the
subject
property.
The
rule
is,
therefore,
consistent
with
the
current
industry
practices
and
the
ASTM
E1527­
2000
standard.
There
is
no
incremental
cost
or
burden
associated
with
the
requirement
to
search
for
institutional
or
engineering
controls.

The
final
rule
requires
environmental
professionals
to
supplement
the
searches
and
reviews
of
historical
and
governmental
records
with
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property.
This
requirement
was
included
in
the
previous
provisions
for
the
CERCLA
innocent
landowner
defense
and,
therefore,
is
not
an
incremental
burden
imposed
by
the
final
rule.
712
With
respect
to
the
requirement
that
the
purchaser
of
the
property
consider
whether
or
not
the
property's
purchase
price
reflects
the
fair
market
value
of
the
property
(
assuming
the
property
is
not
contaminated),
we
disagree
with
the
commenter's
assertion
that
this
requirement
will
significantly
impact
the
cost
of
Phase
I
ESAs.
First,
the
final
rule
does
not
specifically
require
that
a
real
estate
appraisal
be
conducted.
Therefore,
the
EIA
assumed
that
a
more
extensive
search
would
not
be
required
beyond
what
is
currently
required
under
the
ASTM
E1527­
2000
standard.
Second,
the
EIA
did
account
for
the
incremental
labor
hour
burden
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
value
of
the
property.
This
requirement,
however,
is
expected
to
impact
only
a
fraction
of
the
properties
(
i.
e.,
those
properties
where
there
is
a
significant
difference
between
the
purchase
price
and
the
fair
market
value
of
the
property).
Lastly,
it
is
the
current
industry
practice
to
perform
a
search
for
environmental
cleanup
liens.
Also,
the
ASTM
E1527­
2000
standard
includes
a
requirement
to
identify
environmental
cleanup
liens,
but
identifies
the
search
as
the
responsibility
of
the
"
user,"
or
prospective
property
owner.
In
the
final
rule,
the
search
for
environmental
cleanup
liens
may
be
assigned
to
either
the
prospective
property
owner
or
the
environmental
professional.
Therefore,
the
cost
for
conducting
a
search
for
environmental
cleanup
liens
does
not
represent
an
incremental
cost
associated
with
the
requirements
of
the
final
rule.

Commenter
Organization
Name:
Holm,
Wright,
Hyde,
&
Hays
Comment
Number:
0323
Excerpt
Number:
3
Excerpt
Text:
Comment
1:
While
the
CERCLA
definition
of
releases
(
and
threatened
releases)
is
very
broad,
typically
a
release
can
be
identified
(
although
past
air
emissions
can
be
a
challenge
where
the
plume
"
touched
down").
Threatened
releases
on
most
properties
are
reasonably
identifiable
(
e.
g.,
rusting
drums,
and
USTs
no
longer
in
service
without
any
closure
report)
but
become
much
more
difficult
with
the
transfer
of
ongoing
manufacturing
operations
along
with
the
property.
With
the
transfer
of
ongoing
manufacturing
operations,
generally,
operations
experts
representing
the
buyer
review
the
condition
of
equipment
but
not
relative
to
a
threatened
release
to
the
environment.

In
fact,
the
experience
of
environmental
professional,
is
that
a
review
of
major
permits
and
all
spill/
release/
response
plans
is
frequently
performed
(
20%
of
the
time
in
2004)
to
identify
items
that
may
constitute
a
threatened
release
at
"
ongoing
operations"
to
be
transferred.
The
time
it
takes
to
perform
this
activity
averages
16
hours.
In
addition,
more
in
depth
reviews
of
key
operations
took
place
about
2%
of
the
time
and
required
about
40
hours
of
effort
of
highly
skilled
professionals
(
more
costly
per
hour).
While
certain
environmental
professionals
may
not
focus
as
heavily
as
the
norm
on
standard
transfers
that
have
value
almost
entirely
because
of
planned
future
redevelopment
(
the
prime
focus
of
Brownfields
activities),
it
is
expected
that
the
AAI
regulations
and
any
revised
ASTM
Standards
that
follow
will
set
the
standard
and
will
be
followed
by
most
environmental
professionals
for
all
types
of
transfers.

Recommendation:

1)
Reflect
the
above
in
the
upper
end
of
the
AAI
cost
range
and
the
maximum
annual
cost
increase
in
foot
note
4
on
page
52573
of
the
August
26,
2004
Federal
Register.
713
2)
Recognize
in
the
preamble
that
meeting
these
new
standards
may
be
particularly
difficult
for
sites
with
ongoing
operations
so
that
appropriate
expectations
are
set
for
all
likely
stakeholders.

Response:
The
definition
of
releases
and
threatened
releases
included
in
the
final
rule
is
the
same
as
defined
in
CERCLA.
CERCLA
liability
attaches
to
releases
and
threatened
releases
of
hazardous
substances.
Therefore,
the
scope
of
the
all
appropriate
inquiries
investigation
always
has
been
relative
to
identifying
releases
and
threatened
releases
of
hazardous
substances.
The
final
rule
does
not
change
the
scope
of
the
CERCLA
liability
provisions,
nor
does
EPA
have
the
authority
to
modify
the
scope
of
the
CERCLA
liability
in
the
all
appropriate
inquiries
rule.
Additionally,
the
final
rule
does
not
impose
any
additional
burden
associated
with
the
scope
of
CERCLA
liability.

The
fact
that
the
commenter
points
out
that
a
review
of
major
permits
and
spill
response
plans
is
frequently
performed
when
conducting
a
site
assessment
points
to
a
conclusion
that
the
activity
does
not
represent
an
incremental
cost
associated
with
the
final
rule.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
25
Excerpt
Text:
INCREASED
LIABILITY
COSTS
1)
Requiring
a
statement
and
signature
of
the
environmental
professional
on
the
AAI
report
will
lead
to
increased
costs
as
environmental
professionals
will
seek
increased
liability
protection
for
possible
errors
and/
or
omissions
in
their
judgments
and
identification
of
data
gaps.
The
estimated
$
41­$
47
increase
over
current
ASTM
1527­
2000
costs
does
not
take
into
account
the
increased
costs
that
environmental
professionals
will
charge
based
on
their
increased
liability.
FAA
does
not
believe
that
EPA
has
addressed
this
added
cost
effectively
in
the
economic
impact
section
of
the
proposed
rule
and
would
like
EPA
to
include
this
fact
in
their
calculations.

Response:
EPA
thanks
the
commenters
for
their
suggestions.
The
final
rule
requires
that
the
written
report
include
two
signed
declarations
by
the
environmental
professional.
One
declaration
must
state
that
the
environmental
professional
meets
the
professional
criteria
as
defined
by
the
final
rule
under
§
312.10.
The
second
required
declaration
must
state
that
all
appropriate
inquiries
have
been
carried
out
in
accordance
with
the
rule's
requirements.
We
disagree
with
the
commenter's
suggestion
that
these
declaration
requirements
would
lead
to
an
increase
in
the
cost
of
Phase
I
ESAs
since
they
are
not
significantly
different
from
what
is
required
under
the
ASTM
E1527­
2000
standard.

In
response
to
issues
raised
by
commenters,
we
point
out
that
the
final
regulation,
as
did
the
proposal,
requires
that
environmental
professionals
document
and
comment
on
the
significance
of
only
those
data
gaps
that
"
affect
the
ability
of
the
environmental
professional
to
identify
conditions
indicative
of
releases
or
threatened
releases
of
hazardous
substances...
on,
at,
in,
or
to
the
subject
property."
If
certain
information
included
within
the
objectives
and
performance
factors
for
the
final
rule
cannot
be
found
and
the
lack
of
certain
information,
in
light
of
all
other
information
that
714
was
collected
about
the
property,
has
no
bearing
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
the
final
rule
does
not
require
the
lack
of
such
information
to
be
documented
in
the
final
report.
Given
the
restriction
on
the
type
of
data
gaps
that
must
be
documented,
and
given
that
the
documentation
is
restricted
to
instances
where
the
lack
of
information
hinders
the
ability
of
the
environmental
professional
to
render
an
opinion
regarding
the
environmental
conditions
at
the
property,
we
disagree
with
the
commenters
who
assert
that
the
requirement
is
overly
burdensome
or
will
result
in
the
inability
to
complete
the
required
investigations.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
9
Excerpt
Text:
Unfunded
Mandates
Reform
Act:
DEQ
believes
EPA
must
conduct
a
more
detailed
cost­
benefit
analysis.
This
proposed
rule
will
result
in
expenditures
to
State,
local
and
Tribal
governments
and
to
the
private
sector.
As
stated
earlier,
DEQ
will
have
to
contract
AAI
investigations
to
outside
contractors
because
not
all
of
its
project
officers
would
be
qualified
to
conduct
AAI
investigations
under
the
proposed
definition
of
an
"
Environmental
professional."
This
will
result
in
much
larger
costs
per
investigation.
EPA
has
stated
that
an
"
Environmental
professional"
does
not
have
to
perform
all
of
the
AAI
investigation,
but
DEQ
cannot
take
qualified
"
Environmental
professional"
project
officers
off
of
high
priority
enforcement
sites
to
review
work
by
other
project
officers.
DEQ
believes
that
EPA
must
conduct
a
more
detailed
cost
evaluation
to
determine
whether
this
proposed
rule
will
result
in
expenditures
to
State,
local
and
Tribal
governments
and
to
the
private
sector
in
amounts
over
$
100
million.
It
appears
the
cost
evaluation
discussed
in
the
Summary
of
Regulatory
Costs
did
not
take
into
account
the
affect
the
definition
of
an
"
Environmental
professional"
will
have
on
the
cost
of
an
AAI
investigation.

Response:
In
response
to
the
many
comments
EPA
received
on
the
proposed
definition
of
environmental
professional,
EPA
modified
the
definition
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience
in
performing
ESAs,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
Although
EPA
continues
to
recommend
that
the
on­
site
visual
inspection
be
performed
by
persons
meeting
the
qualification
of
an
environmental
professional,
the
definition
in
the
final
rule
is
less
stringent
than
the
proposed
one
allowing
for
most
people
currently
conducting
environmental
site
assessments
to
qualify
as
environmental
professionals.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
2
Excerpt
Text:
We
also
believe
that
the
additional
cost
of
the
new
procedures
will
greatly
exceed
the
estimate
provided
by
EPA.
715
Response:
Please
see
response
to
comment
0344,
excerpt
5.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
5
Other
Sections:
NEW
­
3.8.1
­
The
environmental
professional
should
not
be
required
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property
Excerpt
Text:
­
Proposed
§
312.29
"
The
Relationship
of
the
Purchase
Price
to
the
Value
of
the
Property,
if
the
Property
was
not
Contaminated"
Imposes
a
new
Requirement
for
a
Property
Valuation
Analysis
and
Unduly
Intrudes
Into
Market
Transactions
Proposed
§
312.29
requires
that
purchasers
"
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."

With
this
requirement
in
place,
failure
to
commission
a
valuation
analysis
of
the
property
would
expose
prospective
purchasers
to
subsequent
claims
that
the
purchase
price
was
below
market
and
should
have
alerted
the
purchaser
to
the
presence
of
contamination.
Although
the
preamble
of
the
proposed
rule
states
that
a
formal
appraisal
is
not
necessary,
it
states
that
the
intent
is
to
determine
if
the
"
price
paid
for
the
property
is
reflective
of
its
market
value,"
and
may
be
accomplished
by
retaining
a
"
real
estate
expert"
to
conduct
a
"
comparability
analysis"
(
page
52567).
It
is
often
difficult
to
ascertain
market
value
without
making
various
adjustments
to
comparable
sales,
such
as
size,
location,
availability
of
parking,
rail
or
truck
access,
etc.
Given
the
potential
exposure
to
second
guessing,
prudent
purchasers
will
probably
commission
appraisals,
and
in
any
event
it
is
not
likely
that
the
non­
appraisal
market
valuation
envisioned
by
proposed
rule
will
differ
much
in
scope
or
cost
from
a
formal
appraisal.
Therefore,
the
cost
of
an
appraisal
should
be
included
in
the
additional
costs
associated
with
the
rule
The
rulemaking
committee
may
believe
that
§
312.29
is
required
by
the
Brownfields
Act
of
2002,
which
does
recite
the
phrase
"
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated."
However,
this
element
of
All
Appropriate
Inquiry
remains
unchanged
since
1986
and
to
the
extent
that
EPA
may
believe
that
it
is
a
statutorily
required
element
of
future
All
Appropriate
Inquiries,
it
is
already
covered
by
ASTM
El
527.
ASTM
El
527
properly
limits
"
the
relationship
of
the
purchase
price
to
the
value
of
the
property"
to
"
actual
knowledge
that
the
purchase
price
is
significantly
less
than
the
purchase
price
of
comparable
properties."
ASTM
El527­
00
§
5.4
There
is
no
requirement
that
the
purchaser
ascertain
and
consider
the
price
of
comparable
properties
or
ascertain
and
consider
the
fair
market
value
of
the
subject
property.
Hence,
existing
practice
does
not
intrude
into
market
transactions
and
does
not
require
an
appraisal.

Response:
The
statute
requires
that
the
federal
regulations
for
all
appropriate
inquiries
include
a
requirement
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property.
This
provision
has
716
been
part
of
the
statutory
requirements
for
all
appropriate
inquiries
since
1986,
it
is
not
a
new
or
incremental
requirement.
The
provision
is
not
limited
to
"
actual
knowledge."
The
statute
requires
that
the
relationship
between
purchase
price
and
market
value
be
considered
in
case
of
all
properties,
without
limitation.

The
final
rule,
however,
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion.
Although
some
commenters
requested
that
the
final
rule
require
that
a
formal
appraisal
be
conducted
and
we
acknowledge
that
there
may
be
potential
value
in
conducting
an
appraisal,
we
determined
that
a
formal
appraisal
is
not
necessary
for
the
prospective
landowner
or
grantee
to
make
a
general
determination
of
whether
the
price
paid
for
a
property
reflects
its
fair
market
value.
In
the
case
of
many
property
transactions,
a
formal
appraisal
may
be
conducted
for
other
purposes
(
e.
g.,
to
establish
the
value
of
the
property
for
the
purposes
of
establishing
the
conditions
of
a
mortgage
or
to
provide
information
of
relevance
where
a
windfall
lien
may
be
filed).
In
cases
where
the
results
of
a
formal
property
appraisal
are
available,
the
appraisal
results
may
serve
as
an
excellent
source
of
information
on
the
fair
market
value
of
the
property.

In
cases
where
the
results
of
a
formal
appraisal
are
not
available,
the
determination
of
fair
market
value
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
generally
is
reflective
of
its
fair
market
value.
Significant
differences
in
the
purchase
price
and
fair
market
value
of
a
property
should
be
noted
and
the
reasons
for
any
differences
also
should
be
noted.

In
the
EIA
for
the
proposed
rule,
EPA
assumed
that
a
more
extensive
search
would
not
be
required
under
the
rule
to
document
the
reasons
for
discrepancies
between
the
purchase
price
and
the
fair
market
value
of
a
property
(
assuming
it
were
not
contaminated)
than
what
is
currently
required
under
the
ASTM
E1527­
2000
standard.
The
EIA
did
incorporate
an
incremental
labor
hour
burden
in
the
cost
analysis
for
the
rule
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property.
The
EIA
assumed,
however,
that
this
requirement
would
impact
only
a
fraction
of
the
total
number
of
properties
assessed
annually.

Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
6
Excerpt
Text:
The
Grand
Rapids
Area
Chamber
of
Commerce
remains
concerned
with
the
economic
impacts
associated
with
the
proposed
rule
on
investors
and
the
real
estate
industry.
The
EPA
claims
that
the
proposed
rule
will
increase
the
cost
of
the
"
all
appropriate
inquiry"
by
$
46.
It
is
our
belief
that
this
figure
is
severely
underestimated.
The
various
additional
requirements
in
the
proposed
rule
would
increase
the
cost
of
"
all
appropriate
inquiries"
by
a
much
larger
dollar
figure.
For
example,
the
proposed
rule
requires
that
property
developers
or
investors
may
have
to
consult
with
a
title
717
company
in
order
to
consider
whether
the
purchase
price
of
a
property
reasonably
reflects
the
fair
market
value
of
the
property
should
the
property
be
contaminated.
Property
developers
or
investors
could
incur
costs
estimated
at
$
300
to
complete
this
single
requirement.
In
addition,
the
increase
in
property
investigations
and
background
checks,
will
result
in
a
lengthy
interview
process
requiring
additional
manpower
and
expenses
paid
by
the
investors.
Therefore,
the
Grand
Rapids
Area
Chamber
of
Commerce
requests
that
the
EPA
re­
evaluate
the
increase
in
cost
that
the
proposed
rule
will
create.

Response:
EPA
thanks
the
commenters
on
their
suggestion
that
the
estimates
of
the
costs
under
the
AAI
rule
should
be
reevaluated.
With
respect
to
the
requirement
that
the
purchaser
of
the
property
consider
whether
or
not
the
property's
purchase
price
reflects
the
fair
market
value
of
the
property
(
assuming
the
property
is
not
contaminated),
we
disagree
with
the
commenter's
assertion
that
this
AAI
requirement
will
significantly
impact
the
cost
of
Phase
I
ESAs.

The
final
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion.
Although
some
commenters
requested
that
the
final
rule
require
that
a
formal
appraisal
be
conducted
and
we
acknowledge
that
there
may
be
potential
value
in
conducting
an
appraisal,
we
determined
that
a
formal
appraisal
is
not
necessary
for
the
prospective
landowner
or
grantee
to
make
a
general
determination
of
whether
the
price
paid
for
a
property
reflects
its
fair
market
value.
In
the
case
of
many
property
transactions,
a
formal
appraisal
may
be
conducted
for
other
purposes
(
e.
g.,
to
establish
the
value
of
the
property
for
the
purposes
of
establishing
the
conditions
of
a
mortgage
or
to
provide
information
of
relevance
where
a
windfall
lien
may
be
filed).
In
cases
where
the
results
of
a
formal
property
appraisal
are
available,
the
appraisal
results
may
serve
as
an
excellent
source
of
information
on
the
fair
market
value
of
the
property.

In
cases
where
the
results
of
a
formal
appraisal
are
not
available,
the
determination
of
fair
market
value
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
generally
is
reflective
of
its
fair
market
value.
Significant
differences
in
the
purchase
price
and
fair
market
value
of
a
property
should
be
noted
and
the
reasons
for
any
differences
also
should
be
noted.

In
the
EIA
for
the
proposed
rule,
EPA
assumed
that
a
more
extensive
search
would
not
be
required
under
the
rule
to
document
the
reasons
for
discrepancies
between
the
purchase
price
and
the
fair
market
value
of
a
property
(
assuming
it
were
not
contaminated)
than
what
is
currently
required
under
the
ASTM
E1527­
2000
standard.
The
EIA
did
incorporate
an
incremental
labor
hour
burden
in
the
cost
analysis
for
the
rule
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property.
The
EIA
assumed,
however,
that
this
requirement
would
impact
only
a
fraction
of
the
total
number
of
properties
assessed
annually.

Lastly,
it
is
the
current
industry
practice
to
perform
a
search
for
environmental
cleanup
liens.
Also,
the
ASTM
E1527­
2000
standard
includes
a
requirement
to
identify
environmental
cleanup
liens,
718
but
identifies
the
search
as
the
responsibility
of
the
"
user,"
or
prospective
property
owner.
In
the
final
rule,
the
search
for
environmental
cleanup
liens
may
be
assigned
to
either
the
prospective
property
owner
or
the
environmental
professional.
Therefore,
the
cost
of
conducting
a
search
for
environmental
cleanup
liens
does
not
represent
an
incremental
cost
associated
with
the
requirements
of
the
final
rule.

Commenter
Organization
Name:
Potter
and
Adams
Comment
Number:
0351
Excerpt
Number:
1
Excerpt
Text:
The
anticipated
incremental
cost
increase
of
less
than
$
50,
as
stated
in
the
Preamble
section
V.
A.
2,
is
lower
than
the
actual
incremental
cost
increase
anticipated
by
this
firm.
Certain
assumptions
in
Section
5
of
the
Economic
Impact
Analysis
for
the
Proposed
All
Appropriate
Inquiries
Regulation
(
August
3,
2004)
("
EIA")
do
not
accurately
reflect
the
increased
burden
of
the
proposed
AAI.
For
example,
a)
Section
5.6.1.7
of
the
EIA
states
an
assumption
that
half
of
the
time
spent
interviewing
local
government
officials
is
completed
during
the
site
visit.
This
does
not
reflect
usual
practice
nor
is
it
practical.

b)
Section
5.6.4
of
the
EIA
includes
direct
costs
of
up
to
$
25
per
property
associated
with
obtaining
state
and
local
records.
For
an
industrial
property,
direct
costs
greater
than
$
150
are
typical.
This
section
also
includes
direct
costs
of
up
to
$
25
per
property
associated
with
obtaining
historical
source
records.
Typical
costs
for
obtaining
Sanborn
maps
and
aerial
photographs
are
greater
than
$
200.
Additional
costs
would
be
incurred
if
a
title
search
were
performed.

c)
Section
5.6.5.2
of
the
EIA,
footnote
21,
suggests
that
when
interviews
of
past
owners/
occupants
are
required,
this
activity
serves
as
a
substitute
for
interviews
of
current
owners/
occupants
rather
than
an
additional
activity.
Practically
speaking,
however,
interviews
of
current
owners/
occupants
must
first
be
performed
to
identify
a
data
gap
and
to
identify
other
persons
to
interview,
and
then
the
additional
interviews
may
be
conducted.
Tracking
down
past
owners/
occupants
is
a
time
consuming
activity.
This
represents
an
additional
burden
not
captured
in
the
EIA.

d)
Section
5.6.5.3
of
the
EIA
states
an
assumption
that
it
will
take
approximately
a
half
hour
to
compose,
review
and
edit
text
regarding
explanations
of
purchase
price/
market
value
discrepancies.
Section
5.6.5.4
of
the
EIA
states
an
assumption
that
it
will
take
approximately
½
to
1
hour
to
compose,
review
and
edit
text
regarding
the
user's
environmental
lien
and
institutional
control
search
results.
Section
5.6.5.5
of
the
EIA
states
an
assumption
that
it
will
take
approximately
onehalf
to
1
hour
to
compose,
review
and
edit
text
regarding
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
and
recommendations
for
next
steps
that
the
user
should
consider
in
the
ESA
process.
These
activities
alone
account
for
a
minimum
increased
burden
of
1.5
hours
labor,
which
cannot
be
accomplished
in
most
firms
for
less
than
$
50.
The
EIA
assumes
an
average
billing
rate
of
$
67
per
hour.

e)
The
EIA
does
not
address
the
increased
burden
of
additional
documentation
requirements
for
data
gaps.
The
ASTM
1527,
which
is
considered
the
base
case,
requires
documentation
of
data
gaps
719
specifically
with
regard
to
historical
use
research,
while
the
proposed
AAI
places
no
limits
on
the
requirement
for
documentation
of
data
gaps.
Furthermore,
the
AAI
will
carry
the
weight
of
federal
law,
which
places
even
greater
liability
on
the
environmental
professional
in
an
already
litigious
industry.
Therefore,
even
in
cases
where
a
fully
"
compliant"
ASTM
1527
is
the
base
case,
the
proposed
AAI
will
induce
additional
burden
on
the
environmental
professional
to
document
procedures
and
results
of
inquiries.

f)
As
noted
above,
clarification
is
needed
regarding
the
role
of
the
environmental
professional
in
conducting
the
site
visit.
In
some
cases,
requiring
environmental
professional
to
conduct
site
visit
will
have
a
significant
effect
on
the
cost,
which
is
not
addressed
in
the
EIA.

The
average
ASTM
1527
Phase
I
ESA
cost
of
$
2,132
in
Exhibit
8­
1
of
the
EIA
is
in
line
with
national
average
pricing
surveys
conducted
by
Environmental
Data
Resources
("
EDR").
However,
the
incremental
cost
increase
of
$
47
is
not.
EDR's
survey
of
consultants
who
perform
Phase
I
ESAs
shows
that
the
vast
majority
of
consultants
predict
an
incremental
cost
increase
due
to
AAI,
with
45%
of
consultants
anticipating
an
increase
of
10­
20%
or
more,
which
translates
to
a
$
200
to
$
400
or
more
incremental
cost
increase.
Our
firm
believes
this
estimate
is
more
accurate
than
the
estimate
presented
in
the
EIA.

Response:
EPA
thanks
the
commenters
for
providing
detailed
explanations
on
which
particular
activities
would
be
associated
with
a
higher
level
of
effort
under
the
proposed
rule
than
estimated
in
the
EIA.

With
respect
to
interview(
s)
with
the
local
government
officials,
the
timing
of
the
interview(
s)
largely
depends
on
the
location
of
the
subject
property
relative
to
the
environmental
professional's
office
or
base
location.
Based
on
ICF
Consulting's
experience,
when
significant
travel
is
required
(
e.
g.,
plane
ride,
multiple
hour
drive),
interviewing
local
officials
is
more
efficiently
done
in
conjunction
with
the
site
visit,
and
supplemented
by
telephone
interviews.
In­
person
interviews
of
local
officials
also
are
likely
to
occur
when
searching
for
local
historical
documentation,
as
often
times
the
documentation
is
in
the
same
location
as
the
local
officials
that
need
to
be
interviewed.
We
do
not
believe
that
the
commenters'
remark
warrants
a
revision
to
the
cost
assumptions
and
burden
estimates
presented
in
the
EIA
conducted
for
the
proposed
rule.

Sanborn
maps
and
aerial
photographs
are
often
times
included
as
an
additional
product
that
is
ordered
along
with
the
standard
environmental
database
report.
Based
on
our
communications
with
EDR
at
the
time
the
EIA
was
prepared,
the
costs
of
database
search
reports
typically
ranged
from
approximately
$
160
(
for
the
standard
database
search
report)
to
approximately
$
315
(
for
the
standard
database
search
report,
plus
up
to
four
historical
sources,
which
could
include
Sanborn
maps,
aerial
photographs,
historical
topographic
maps,
city
directories,
or
other
various
sources).
With
respect
to
other
direct
costs
(
ODCs),
the
EIA
assumed,
both
under
the
base
case
and
the
final
AAI
rule,
$
250
for
the
database
search
report,
plus
an
additional
$
45­$
75
for
historical
use
information,
state
and
local
environmental
records,
and
documents
provided
by
the
client.
Therefore,
the
EIA
estimates
of
the
average
total
ODCs
for
the
database
report,
historical,
and
governmental
records
range
from
$
295
to
$
325
and
are
very
close
to
the
ODC
estimates
suggested
by
the
commenter.
720
The
commenter
suggests
that
the
title
search
would
be
an
incremental
cost
under
the
AAI
rule.
The
EIA
assumed
that,
under
the
current
ASTM
standard,
it
is
the
user's
responsibility
to
check
for
environmental
liens
that
are
currently
recorded
against
the
subject
property,
and
to
report
these
to
the
environmental
professional
conducting
the
Phase
I
ESA.
The
final
rule's
requirements
for
environmental
lien
searches
are
no
different;
therefore,
there
would
be
no
incremental
cost
(
labor
or
expenses)
incurred
as
a
result
of
the
final
AAI
rule.
Thus,
even
if
the
cost
of
a
title
search
is
explicitly
accounted
for
under
the
base
case
and
under
the
final
regulation,
the
average
incremental
cost
per
transaction
would
stay
unchanged.

With
respect
to
the
requirement
to
interview
past
owners
and
occupants,
we
agree
with
the
commenter
that
the
environmental
professional
may
need
to
complete
the
full
interview
with
the
current
owner
before
determining
whether
the
interview
with
past
owner
and
occupants
would
be
necessary.
In
response
to
this
and
similar
public
comments,
the
EIA
was
revised
to
account
for
the
incremental
burden
associated
with
locating
and
interviewing
past
owners
and
occupants.
The
revised
cost
estimates
are
provided
in
the
addendum
to
the
EIA,
which
is
provided
in
the
docket
for
the
final
rule.

The
commenters
failed
to
recognize
that
the
documentation
requirements
in
the
final
rule
regarding
the
purchase
price
of
the
property
and
the
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property
would
not
need
to
be
satisfied
in
the
case
of
each
property
or
site
assessment.
The
EIA
weighted
the
increased
effort
under
the
final
rule
by
the
probability
that
the
incremental
hours
may
be
needed.
In
many
cases,
there
will
be
no
discrepancy
between
the
purchase
price
and
the
fair
market
value
of
the
property,
therefore
no
documentation
of
the
reasons
for
the
discrepancy
will
be
necessary.

With
respect
to
data
gaps,
the
EIA
did
not
explicitly
account
for
this
performance
factor.
Data
gaps
would
need
to
be
documented
only
in
the
cases
in
which
the
environmental
professional
cannot
perform
one
or
more
of
the
required
tasks.
The
EIA
implicitly
assumed
that
if
the
documentation
of
data
gaps
is
necessary,
the
time
saved
by
omitting
the
required
tasks
would
offset
the
time
needed
for
the
documentation.

With
respect
to
the
on­
site
visual
inspection
requirement,
EPA
continues
to
recommend
that
the
onsite
visual
inspection
be
performed
by
persons
meeting
the
qualification
of
an
environmental
professional.
However,
EPA
modified
the
definition
of
environmental
professional
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience
in
performing
ESAs,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
in
the
final
rule
is
less
stringent
than
the
definition
included
in
the
proposed
rule
and
allows
for
most
people
currently
conducting
environmental
site
assessments
to
qualify
as
environmental
professionals.
Therefore,
we
do
not
believe
that
the
recommendation
will
impose
any
significant
incremental
cost
burden.
721
To
address
the
commenters'
suggestion
that
the
EDR
survey
results
may
be
more
reliable
than
the
estimates
presented
in
the
EIA,
the
Agency
conducted
a
sensitivity
analysis
in
the
addendum
to
the
EIA.
We
show
that
the
final
rule
will
not
have
annual
impacts
in
excess
of
the
$
100
million
threshold
set
for
major
rules
even
if
the
final
rule
increases
the
cost
per
Phase
I
ESA
by
an
amount
close
to
the
EDR
respondents'
estimate.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
17
Excerpt
Text:
VI.
ICF's
ESTIMATE
OF
ADDITIONAL
TRANSACTION
COSTS
AND
TIME
IS
NOT
CREDIBLE,
AND
THE
RULE
WILL
DISPROPORTIONATELY
IMPACT
LOW
INCOME
AND
MINORITY
COMMUNITIES,
AND
SMALL
ENTITITES
­
A.
The
New
Rule
will
Significantly
Increase
the
Cost
and
Time
Involved
in
Conducting
Phase
One
Site
Assessments
ICF
Consulting
prepared
the
Economic
Impact
Analysis
for
the
proposed
rule
and
contends
that
the
new
rule
will
result
in
an
average
additional
cost
for
conducting
a
phase
one
site
assessment
of
$
47.
This
is
simply
not
credible.
In
California,
a
good
quality
phase
one
costs
between
three
and
five
thousand
dollars.
The
environmental
consultants
in
the
San
Francisco
Bay
Area
we
have
consulted
have
informed
us
that
under
the
new
rule
it
will
increase
to
five
to
ten
thousand.

An
industry
leader
in
providing
environmental
site
assessments
located
in
Seattle,
Washington
has
carefully
analyzed
the
new
rule
and
concluded
that
costs
may
increase
by
up
to
50%.
See
Comments
on
Proposed
Rule­
All
Appropriate
Inquires,
submitted
by
Geomatrix
Consultants
Inc.
(
Nov.
30,
2004).

ICF's
Economic
Impact
Analysis
chose
to
disregard
a
survey
of
five
hundred
environmental
consultants
in
nine
cities
that
concluded
that
cost
of
the
new
rule
would
raise
the
cost
of
a
phase
1
by
at
least
10%.
See
EDR
Business
Information
Services,
Environmental
Site
Assessment
Report
(
July
7,
2004).
Even
this
figure
is
very
low
but
it
is
almost
five
times
ICF's
estimate
and
throws
off
all
of
ICF's
other
economic
calculations.

The
Economic
Impact
Analysis
does
not
account
for
many
cost
impacts
that
will
be
associated
with
the
new
rule.
It
does
not
allow
any
time
or
cost
for
the
conduct
of
an
appraisal
or
market
valuation
analysis.
It
only
allows
a
modicum
of
time
for
the
environmental
professional's
consideration
of
the
market
analysis.
This
market
valuation
requirement
is
new.
It
is
not
currently
performed
and
its
added
cost
should
be
included
in
any
valid
economic
impact
analysis.
Because
purchasers
will
be
conducting
All
Appropriate
Inquiry
in
order
to
gain
liability
protection,
we
do
not
believe
they
will
leave
themselves
exposed
by
electing
not
to
conduct
a
market
valuation
or
by
not
requiring
the
environmental
professional
to
consider
it.
Yet
ICF
includes
time
for
the
environmental
professional
to
consider
the
valuation
in
only
15%
of
cases.
722
The
depth
of
review
and
number
of
historical
sources
that
must
be
reviewed
under
the
new
rule
are
both
greatly
increased,
but
ICF
allows
no
additional
time.
There
is
also
no
additional
time
allotted
for
the
expanded
review
of
local
government
records,
nor
is
any
additional
time
allowed
for
the
expanded
adjoining
property
analysis.

We
also
believe
that
the
increased
number
and
scope
of
tasks
required,
combined
with
the
performance
based
approach,
will
increase
the
time
required
to
complete
All
Appropriate
Inquiry.
We
think
that
it
will
not
be
possible
in
many
real
estate
transactions
to
comply
with
the
new
rule
under
the
time
constraints
imposed
by
purchase
and
sale
closing
deadlines.
We
think
the
time
factor
makes
the
new
rule
impracticable.

We
believe
meaningful
public
comment
on
the
proposed
rule
is
not
possible
until
a
realistic
Economic
Impact
Analysis
is
prepared.
We
request
that
EPA
consider
our
comments
and
the
comments
of
others
regarding
the
cost
impact
and
use
the
information
in
these
comments
to
commission
a
new
Economic
Impact
Analysis
that
realistically
assesses
the
new
rule.
We
believe
you
will
find
that
the
overwhelming,
if
not
unanimous,
opinion
is
that
ICF's
analysis
does
not
provide
meaningful
information.
We
request
that
public
comment
be
extended
or
reopened
to
allow
public
consideration
of
the
new
Economic
Impact
Analysis
before
any
final
decision
is
made.

Response:
EPA
thanks
the
commenters
on
their
position
on
the
burden
under
the
proposed
AAI
requirements.
To
address
the
commenters'
concern
that
the
EDR
survey
results
may
be
more
reliable
than
the
estimates
presented
in
the
EIA,
the
Agency
conducted
a
sensitivity
analysis
in
the
addendum
to
the
EIA.
We
show
that
the
final
rule
would
not
have
annual
impacts
to
the
economy
in
excess
of
the
$
100
million
threshold
set
for
major
rules
even
if
the
final
rule
increased
the
average
cost
per
Phase
I
ESA
by
an
amount
close
to
the
EDR
survey
respondents'
estimate.

The
final
rule
does
not
require
that
a
real
estate
appraisal
be
conducted
to
achieve
compliance
with
this
criterion.
Although
some
commenters
requested
that
the
final
rule
require
that
a
formal
appraisal
be
conducted
and
we
acknowledge
that
there
may
be
potential
value
in
conducting
an
appraisal,
we
determined
that
a
formal
appraisal
is
not
necessary
for
the
prospective
landowner
or
grantee
to
make
a
general
determination
of
whether
the
price
paid
for
a
property
reflects
its
fair
market
value.
In
the
case
of
many
property
transactions,
a
formal
appraisal
may
be
conducted
for
other
purposes
(
e.
g.,
to
establish
the
value
of
the
property
for
the
purposes
of
establishing
the
conditions
of
a
mortgage
or
to
provide
information
of
relevance
where
a
windfall
lien
may
be
filed).
In
cases
where
the
results
of
a
formal
property
appraisal
are
available,
the
appraisal
results
may
serve
as
an
excellent
source
of
information
on
the
fair
market
value
of
the
property.

In
cases
where
the
results
of
a
formal
appraisal
are
not
available,
the
determination
of
fair
market
value
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
generally
is
reflective
of
its
fair
market
value.
Significant
differences
in
the
purchase
price
and
fair
market
value
of
a
property
should
be
noted
and
the
reasons
for
any
differences
also
should
be
noted.
723
In
the
EIA
for
the
proposed
rule,
EPA
assumed
that
a
more
extensive
search
would
not
be
required
under
the
rule
to
document
the
reasons
for
discrepancies
between
the
purchase
price
and
the
fair
market
value
of
a
property
(
assuming
it
were
not
contaminated)
than
what
is
currently
required
under
the
ASTM
E1527­
2000
standard.
The
EIA
did
incorporate
an
incremental
labor
hour
burden
in
the
cost
analysis
for
the
rule
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
fair
market
value
of
the
property.
The
EIA
assumed,
however,
that
this
requirement
would
impact
only
a
fraction
of
the
total
number
of
properties
assessed
annually.

With
respect
to
the
requirements
to
review
historical
sources
of
information,
the
final
rule
does
not
require
any
additional
historical
sources
to
be
reviewed
that
are
not
already
within
the
realm
of
sources
consulted
under
the
ASTM
E1527­
2000
standard.

With
respect
to
the
adjoining
property
analysis,
the
EIA
underestimated
the
incremental
cost
associated
with
the
proposed
requirement
to
search
for
institutional
controls.
The
proposed
rule
extended
the
search
for
institutional
controls
to
a
one­
half
mile
radius
of
the
subject
property
while
the
search
requirement
under
the
ASTM
E1527­
2000
standard
is
limited
to
the
subject
property.
Had
the
EIA
properly
accounted
for
the
extended
scope
of
the
search
requirement
for
institutional
controls
under
the
proposed
rule,
the
estimated
average
incremental
cost
per
Phase
I
ESA
would
have
been
higher
than
$
47.
EPA,
however,
has
revised
the
search
requirement
for
institutional
controls
in
the
final
rule
by
limiting
the
search
to
the
subject
property.
Therefore,
the
EIA
does
not
need
to
be
revised
to
account
for
additional
incremental
costs
associated
with
the
search
for
institutional
controls.

Although
EPA
received
comments
that
raised
issues
relative
to
the
assumptions
and
results
presented
in
the
EIA
conducted
for
the
proposed
rule,
very
few
commenters
provided
data
or
documentation
to
support
their
claims.
We
did
conduct
a
sensitivity
analysis
using
the
limited
information
provided
from
the
results
of
the
EDR
customer
survey.
In
addition,
EPA
received
a
significant
number
of
comments
from
parties
who
conduct
environmental
site
assessments
stating
that
they
generally
agreed
with
the
results
of
our
cost
analysis.
Therefore,
EPA
did
not
develop
a
new
or
additional
cost
analysis
or
re­
open
the
public
comment
period.

Commenter
Organization
Name:
NPCA
Comment
Number:
0403
Excerpt
Number:
15
Excerpt
Text:
EPA
estimates
that
the
average
incremental
cost
relative
to
Phase
I
ESAs
under
the
ASTM
El
527­
2000
of
the
new
standards
will
be
$
41
to
S47
dollars.
NPCA
strongly
disagrees
with
this
assertion.
As
outlined
above
the
additional
expenses
related
to
the
much
expanded
and
prolonged
title
and
record
searches,
the
real
possibility
that
sampling,
testing
and
analysis
will
have
to
take
place
and
the
need
to
continually
update
much
of
the
information
within
the
time
periods
specified,
will
greatly
increase
the
cost
under
the
new
AAIs
above
traditional
Phase
I
ESAs.
In
addition,
NPCA
reiterates
that
the
added
cost
of
hiring
an
environmental
professional,
as
defined
in
the
Proposed
Rule,
alone
will
greatly
increase
price
of
Phase
1
ESAs
under
the
proposed
AAIs.
724
Response:
With
respect
to
the
title
and
historical
records
search,
the
final
rule
does
not
require
any
additional
sources
to
be
reviewed
that
are
not
already
within
the
realm
of
sources
required
to
be
considered
under
the
ASTM
E1527­
2000
standard.
EPA
revised
the
search
requirement
for
institutional
controls
that
was
included
in
the
proposed
rule.
In
the
final
rule,
the
required
search
for
institutional
controls
is
limited
to
the
subject
property.
Therefore,
the
search
requirement
in
the
final
rule
is
the
same
as
required
under
the
ASTM
E1527­
2000
standard.

With
respect
to
shelf­
life
of
ESA
reports,
EPA
clarified
the
regulatory
language
in
the
final
rule
to
allow
for
the
use
of
information
contained
in
previously
conducted
assessments,
even
if
the
information
was
collected
more
than
a
year
prior
to
the
purchase
date
of
the
subject
property.
However,
most
aspects
of
a
site
assessment
completed
more
than
180
days
prior
to
the
date
of
acquisition
of
the
subject
property
must
be
updated
to
reflect
current
conditions
and
current
property­
specific
information.
This
requirement
may
result
in
the
redoing
of
a
small
fraction
of
Phase
I
ESAs.
Because
the
rule
allows
for
the
use
of
previously
collected
information,
the
cost
of
re­
doing
a
Phase
I
ESA
should
be
lower,
on
average,
than
the
cost
of
the
conducting
an
initial
Phase
I
ESA.
The
shelf­
life
requirement,
therefore,
would
not
increase
the
average
cost
of
Phase
I
ESAs.

The
final
rule
does
not
require
that
sampling
and
analysis
be
conducted
as
part
of
all
appropriate
inquiries.

In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
environmental
professional,
EPA
modified
the
definition
in
the
final
rule
to
allow
persons
who
have
10
years
of
full­
time
relevant
experience,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
in
the
final
rule
is
less
stringent
than
the
definition
in
the
proposed
rule
and
allows
for
most
people
currently
conducting
Phase
I
environmental
site
assessments
to
qualify
as
environmental
professionals.

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
5
Excerpt
Text:
CCLR
has
carefully
reviewed
the
Economic
Impact
Analysis
(
EIA)
prepared
by
ICF
Consulting,
and
have
discussed
its
contents
with
numerous
environmental
professionals
and
community
developers.
We
also
had
an
opportunity
to
discuss
the
cost
impact
of
the
proposed
rule
with
participants
at
the
St.
Louis
2004
Brownfields
Conference.
The
consensus
is
that
the
EIA
does
not
accurately
reflect
the
additional
cost
and
time
that
will
be
involved
in
conducting
All
Appropriate
Inquiry
according
to
the
proposed
rule.

In
our
discussions
with
environmental
professionals,
we
have
found
a
consistent
opinion
that
existing
phase
I
costs
in
California
under
ASTM
E1527
vary
between
$
3,000
and
$
5,000,
and
that
under
the
proposed
rule,
these
costs
will
increase
to
a
range
of
$
5,000
to
$
10,000.
Given
the
openended
nature
of
the
new
performance
based
approach
and
lack
of
actual
experience
with
the
new
725
rule,
we
believe
the
holistic
estimates
provided
by
seasoned
front
line
phase
I
providers
offer
a
more
accurate
estimate
than
the
EIA
provides.

The
EIA
contains
carefully
drawn
paragraphs
and
box
charts
that
attempt
to
analyze
tasks
required
in
the
preparation
of
a
phase
I
report
down
to
the
fraction
of
an
hour.
However,
as
it
is
based
on
the
following
assumptions:
1)
there
is
not
much
that
was
not
already
required
by
ASTM
E1527;
2)
the
tasks
required
have
definite
boundaries;
and
3)
the
new
rule
will
increase
certainty;
it
is
our
opinion
that
the
EIA
does
not
accurately
reflect
the
additional
cost
and
time
inherent
in
the
proposed
rule.
These
issues
are
discussed
below.

­
Concern
1:
The
EIA
assumes
many
tasks
are
not
new
­­
The
EIA
assumes
that
the
valuation
analysis
is
already
routinely
prepared
and
will
involve
no
new
costs.
Although
The
EIA
allows
some
time
for
the
environmental
professional
to
consider
the
valuation
analysis,
it
does
not
allow
any
cost
for
a
real
estate
expert
or
appraiser
to
prepare
the
analysis
because
it
believes
a
valuation
analysis
already
exists.
This
is
an
inaccurate
assumption,
and
contradicts
EPA's
rejection
of
ASTM
E1527
on
grounds
that
it
does
not
require
a
valuation
analysis.
In
the
hundreds
of
phase
I
reports
we
have
reviewed,
we
have
never
seen
a
valuation
analysis.
The
EIA
also
assumes
that
environmental
professionals
will
have
to
take
time
to
consider
valuation
analyses
in
only
15%
of
the
cases.
Every
brownfield
redeveloper
we
have
spoken
with
claims
that
it
will
be
absolutely
necessary
to
conduct
a
valuation
analysis
in
every
transaction,
because
failure
to
do
so
would
expose
them
to
plaintiff's
claims
that
purchase
price
should
have
alerted
them
to
contamination.
Plaintiffs
will
hire
appraisers
to
make
their
point
in
court
so
community
developers
will
have
to
hire
appraisers
as
a
part
of
their
'
defensive
phase
I."
The
appraisal
will
be
transmitted
to
the
environmental
professional
because
it
is
required
by
the
new
rule.
And
the
new
rule
requires
the
environmental
professional
to
consider
it.
EPA
should
add
the
cost
of
the
appraisal
and
allow
time
for
the
environmental
professional
to
consider
it
in
100%
of
transactions.

­­
The
EIA
also
allows
no
additional
time
or
cost
for
review
of
historical
sources
under
the
new
rule.
Yet
EPA
concludes
that
ASTM
E1527
isn't
thorough
enough
in
its
requirements
for
historical
source
review.
Under
the
new
rule
all
uses
and
occupancies,
not
just
obvious
ones,
must
be
identified.
If
there
is
a
difference
between
all
uses
and
only
obvious
uses,
there
must
be
more
time
involved
in
finding
all
uses
instead
of
just
obvious
ones.
The
new
rule
also
greatly
expands
the
universe
of
information
that
must
be
searched.

­­
The
EIA
allows
no
extra
cost
for
more
frequent
sampling
and
analysis.
The
performance
based
approach
requires
the
environmental
professional
to
keep
looking
until
answers
are
found.
In
many
cases
this
will
require
sampling
and
analysis.
ASTM
E1527
requires
the
environmental
professional
to
consult
enumerated
sources
and
report
on
what
is
found.
This
does
not
produce
the
need
to
use
the
sampling
and
analysis
process
to
produce
answers.
The
EIA
estimates
that
the
additional
cost
of
limited
sampling
is
$
1439.
Based
on
our
experience
with
phase
I
assessments
as
they
are
currently
conducted
and
familiarity
with
many
transactions,
and
our
interviews
with
brownfield
redevelopers
who
have
reviewed
the
proposed
rule,
we
estimate
that
sampling
and
analysis
will
be
triggered
by
the
new
rule
in
50%
of
transactions.
We
recommend
that
EPA
add
at
least
$
700
in
average
transaction
costs
for
this
item.
726
­­
The
EIA
allows
no
extra
cost
for
review
of
local
government
records.
Section
312.26
of
the
proposed
rule
states
that
"
local
government
records.
.
.
must
be
reviewed,"
and
represents
an
expanded
scope
and
liability
exposure
because
it,
too,
is
"
performance
based."
The
point
of
this
performance
based
approach
is
to
make
it
more
thorough
and
searching
than
ASTM's
checklist
approach,
however,
no
additional
time
was
allotted
to
the
estimate.

­­
The
EIA
allows
no
time
for
the
new
"
adjoining
and
nearby"
property
analysis.
This
is
a
sweeping
new
requirement,
and
an
appropriate
average
time
should
be
allotted
for
this.

­
Concern
2:
The
EIA
treats
performance
based
tasks
as
if
they
have
definite
boundaries
­­
The
EIA
presents
charts
with
precise
hour
estimates
even
though
it
is
not
clear
that
anyone
with
industry
experience
conducted
a
test
of
the
new
tasks
under
the
performance
based
approach.
A
representative
set
of
phase
I
reports
under
the
new
rule
and
under
the
old
rule
to
provide
the
actual
time
spent
along
with
the
reports
produced
would
be
of
great
assistance.
This
would
allow
for
meaningful
public
comment
by
brownfield
redevelopers
on
how
much
time
is
really
needed
to
produce
a
"
performance
based"
phase
I
that
truly
lessens
their
fear
of
CERCLA
liability,
as
Congress
intended.
The
assumptions
in
the
EIA
unfortunately
provide
little
real­
world
information.
The
EIA
cannot
know
how
long
it
will
take
to
keep
going
until
the
answers
are
found
in
a
way
that
reduces
the
potential
for
a
plaintiff's
criticism
on
the
phase
I.
And
there
is
no
meaningful
way
to
judge
this
question
until
qualified
lawyers
have
the
opportunity
to
have
input
into
the
cost
estimate
process
by
gauging
the
re[
orts
that
are
produced.
The
EIA's
presentation
unfortunately
does
not
contain
sufficient
research
to
provide
a
realistic
basis
for
evaluating
what
is
actually
involved
in
the
new
rule.

­
Concern
3:
The
EIA
makes
an
assumption
that
the
new
rule
produces
certainty
­­
The
EIA
assumes
without
discussion
or
supporting
documentation,
that
the
new
rule
will
provide
more
certainty
for
brownfield
redevelopers.

Lastly,
the
EIA
does
not
include
the
impact
of
the
increased
time
involved
in
tracking
down
many
new
sources
of
information
and
continuing
performance
based
searches
until
definitive
conclusions
are
reached.
The
increased
time
involved
in
sampling
and
analysis
is
also
not
included
in
the
estimates.
Based
on
our
experience,
we
believe
that
the
new
rule
could
potentially
add
weeks
to
the
time
required
to
complete
a
phase
I
on
average,
and
in
some
cases
will
extend
the
time
to
an
extent
that
will
make
it
impossible
to
complete
the
phase
I
on
schedule
to
meet
closing
deadlines.

The
increased
time
involved
in
the
performance
based
approach
will
reduce
the
possibility
of
successfully
conducting
the
required
research
within
impending
deadlines
of
escrow,
financing,
government
permitting,
and
the
business
needs
of
buyers
and
sellers.

In
many
cases,
it
will
probably
be
impossible
to
complete
the
phase
I
within
the
standard
30
day
closing
period
of
commercial
real
estate
transactions.
Unless
the
rules
can
be
modified
to
meet
this
standard
business
practice,
the
performance
based
rules
will
not
support
successful
transactions.
727
Response:
With
respect
to
the
requirement
that
the
environmental
professional
consider
whether
or
not
the
property's
purchase
price
reflects
the
fair
market
value
of
the
property
(
assuming
the
property
is
not
contaminated),
we
disagree
with
the
commenter's
assertion
that
the
requirements
of
the
final
rule
will
significantly
impact
the
cost
of
conducting
Phase
I
ESAs.
To
comply
with
the
provisions
of
the
final
rule,
a
prospective
property
owner
does
not
have
to
conduct
a
formal
appraisal
of
the
property.
A
formal
appraisal
is
not
necessary
for
the
purchaser
to
make
a
general
determination
of
whether
the
price
paid
for
a
property
reasonably
reflects
its
fair
market
value.
Additionally,
the
requirement
to
consider
the
relationship
between
the
purchase
price
and
the
fair
market
value
of
a
property,
if
the
property
were
not
contaminated,
is
not
a
new
or
incremental
requirement
imposed
by
the
final
rule.
This
provision
has
been
part
of
the
requirements
for
conducting
all
appropriate
inquiries
since
CERCLA
was
amended
to
include
the
innocent
landowner
provisions
in
1986.
Therefore,
the
economic
impact
analysis
includes
no
additional
costs
for
complying
with
this
provision.

The
commenter
claims
that
Phase
I
ESA
reports
typically
do
not
include
property
valuation
analyses.
This
observation
is
consistent
with
the
Agency's
understanding
of
the
requirements
of
the
ASTM
E1527­
2000
standard;
unlike
the
final
rule,
the
ASTM
E1527­
2000
standard
does
not
require
the
environmental
professional
to
document
any
information
about
the
relationship
between
purchase
price
and
the
fair
market
value
of
the
property
in
the
ESA
report.
The
documentation
requirement
is
new
to
the
final
rule
and
costs
associated
with
the
documentation
requirement
have
been
accounted
for
into
the
EIA
for
the
final
rule.

The
commenters
failed
to
recognize
that
the
final
rule
requires
that
the
environmental
professional
document
the
inquiries
about
the
property's
purchase
price
only
in
those
cases
in
which
the
prospective
purchaser
found
that
the
purchase
price
is
significantly
different
from
the
fair
market
value
of
the
property
(
if
it
were
not
contaminated).
It
is
not
reasonable
to
assume,
as
the
commenters
have
suggested,
that
this
requirement
would
impact
100
percent
of
transactions.

With
respect
to
historical
sources
review,
the
final
rule
does
not
require
any
additional
historical
sources
be
reviewed
that
are
not
already
within
the
realm
of
sources
required
to
be
consulted
by
the
ASTM
E1527­
2000
standard.

The
final
rule
does
not
require
that
sampling
and
analysis
be
conducted
to
comply
with
the
all
appropriate
inquiries
requirements.
Therefore,
no
incremental
costs
to
conduct
such
activities
were
included
in
the
economic
impact
analysis.

With
respect
to
review
of
local
government
records,
the
final
rule
requires
that
local
government
records
be
reviewed
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors
specified
under
the
rule.
While
the
current
ASTM
E1527­
2000
standard
does
not
specifically
require
the
review
of
local
records,
it
does
state
under
7.2.2
Additional
Environmental
Record
Sources:
State
or
Local
that
"[
o]
ne
or
more
additional
state
sources
or
local
sources
of
environmental
records
may
be
checked,
in
the
discretion
of
the
environmental
professional,
to
enhance
and
supplement
federal
and
state
sources
identified
above."
In
practice,
a
properly
performed
ASTM
Phase
I
ESA
(
which
is
the
assumed
baseline
approach
for
the
EIA)
typically
includes
a
review
of
at
least
some
local
records
(
either
as
part
of
or
in
conjunction
with
728
interviewing
local
government
officials
and
reviewing
local
historical
sources).
Therefore,
in
conducting
the
EIA,
EPA
assumed
a
similar
level
of
effort
would
be
conducted
to
comply
with
the
final
rule
as
is
currently
undertaken
when
conducting
an
environmental
site
assessment
in
compliance
with
the
ASTM
E1527­
2000
standard.

With
respect
to
analyses
of
conditions
of
"
adjoining
and
nearby"
properties,
the
final
rule
does
not
require
any
additional
investigations
that
are
not
already
within
the
scope
of
the
ASTM
E1527­
2000
standard.
Sections
8.4.1.3,
8.4.1.4,
and
8.4.1.5
of
the
ASTM
E1527­
2000
standard
require
that
an
evaluation
and
documentation
(
in
the
ESA
report)
of
the
current
uses
of
adjoining
properties,
past
uses
of
adjoining
properties,
and
current
or
past
uses
in
the
surrounding
area
be
performed
to
the
extent
that
the
uses
are
visually
and/
or
physically
observed
on
the
site
visit,
or
are
identified
in
the
interviews
or
record
review.

With
respect
to
the
commenter's
remarks
on
the
EIA
methodology
and
a
need
for
an
input
from
lawyers
(
concern
2),
the
FACA
Committee
members,
including
individuals
with
a
background
in
law,
were
provided
with
opportunities
to
review
and
comment
on
the
EIA
methodology.

We
disagree
with
the
commenter
that
the
Agency
did
not
discuss
the
benefits
under
the
rule.
The
benefits
of
the
final
rule
were
discussed
in
the
EIA,
at
Chapter
6.

With
respect
to
the
commenter's
concerns
regarding
the
Agency's
statements
that
the
final
rule
will
increase
certainty,
the
Agency
points
out
that
the
final
rule
establishes
certainty
with
regard
to
what
a
prospective
property
owner
must
do
to
comply
with
the
statutory
requirements
relative
to
conducting
all
appropriate
inquiries.
The
promulgation
of
a
final
rule
will
establish
federal
standards
that
are
easily
accessible.
In
addition,
the
final
rule
and
preamble
provide
the
public
with
guidance
regarding
EPA's
interpretation
of
the
statutory
criteria
for
conducting
all
appropriate
inquiries.

Certainty
with
regard
to
CERCLA
liability
is
beyond
the
provisions
of
the
final
all
appropriate
inquiries
rule.
All
appropriate
inquiries
are
only
one
of
many
criteria
imposed
by
the
statute
to
obtain
protection
from
CERCLA
liability.
Property
owners
must
comply
with
all
statutory
criteria
to
obtain
liability
protection.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
4
Other
Sections:
NEW
­
3.5.2.1
­
Search
distance
for
institutional
and
engineering
controls
Excerpt
Text:
Review
of
Industrial
Controls
within
½
mile
of
the
property
is
a
considerable
expansion
of
the
effort
beyond
the
current
industry
practice
that
significantly
increases
costs
without
yielding
information
useful
to
the
process.
IC's
are
very
specific
to
the
properties
they
affect.
The
most
common
form
of
an
institutional
control
is
a
risk
based
closure
that
allows
for
residual
contamination
to
remain
on
site
given
the
current
site
specific
property
use.
In
many
areas
these
IC
are
plentiful,
particularly
with
respect
to
leaking
underground
storage
tanks.
Requiring
review
of
729
every
site
specific
IC
identified
within
½
mile
is
overly
burdensome,
the
cost
of
which
is
not
factored
into
the
economic
analysis.
It
is
recommended
that
the
requirement
be
limited
to
searching
for
IC
on
the
subject
site
and
the
adjoining
properties.

Response:
EPA
agrees
with
the
commenter
that
searching
for
institutional
controls
associated
with
properties
located
within
a
half
mile
of
the
subject
property
is
overly
burdensome.
The
final
rule
requires
that
the
search
for
institutional
controls
be
confined
to
the
subject
property
only
and,
thus,
does
not
differ
from
the
current
industry
practice.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
6
Other
Sections:
NEW
­
3.13.4
­
Shelf
life
should
be
extended
beyond
180
days/
one
year
Excerpt
Text:
Age
of
Due
Diligence
­
The
rule
does
not
allow
for
the
use
of
prior
reports
that
are
older
than
one
year.
Some
industry
publications
have
suggested
that
this
means
a
Phase
I
ESA
literally
expires
after
one
year
and
a
completely
new
inquiry
is
required.
The
specified
level
of
effort
to
be
conducted
within
6
months
is
precisely
the
scope
of
work
that
would
need
to
be
conducted
if
the
report
were
six
months
old
or
six
years
old.
The
rule
should
1)
remove
the
one­
year
requirement,
2)
specifically
state
that
reports
older
than
one
year
can
be
used,
or
3)
the
economic
analysis
must
account
for
the
thousands
of
reports
that
will
need
to
be
re­
created.

Response:
In
the
final
rule,
EPA
clarified
the
regulatory
language
to
allow
for
the
use
of
information
contained
in
previously
conducted
environmental
site
assessments,
even
if
the
information
for
the
assessment
was
collected
more
than
a
year
prior
to
the
purchase
date
of
the
subject
property.
Information
from
previous
ESA
reports
may
be
used.
However,
the
final
rule
requires
that
most
information
be
updated
if
the
information
was
collected
more
than
180
days
prior
to
the
date
of
acquisition
of
the
property.
All
appropriate
inquiries
investigations
must
include
an
assessment
of
the
current
conditions
of
a
property,
or
the
conditions
of
the
property
at
the
point
in
time
that
the
property
is
acquired.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
7
Other
Sections:
NEW
­
3.5.2.1
­
Search
distance
for
institutional
and
engineering
controls
Excerpt
Text:
Institutional
Controls
­
Review
of
ICs
identified
within
½
­
mile
of
the
property
is
a
considerable
expansion
of
effort
beyond
the
current
industry
practice
that
significantly
increases
costs
without
yielding
information
useful
to
the
process.
ICs
are
very
specific
to
the
properties
they
affect.
The
most
common
form
of
an
institutional
control
is
a
risk­
based
closure
that
allows
for
residual
contamination
to
remain
on
site
given
a
current
site­
specific
property
use.
In
a
highly
industrialized
730
area,
these
ICs
are
plentiful,
particularly
with
respect
to
leaking
USTs.
Requiring
the
environmental
professional
to
review
every
site­
specific
IC
identified
within
½
­
mile
is
overly
burdensome,
the
cost
of
which
is
not
factored
into
the
economic
analysis.
I
recommend
that
the
requirement
be
limited
to
searching
for
ICs
on
the
subject
site
and
adjoining
properties.

Response:
EPA
agrees
with
the
commenter
that
searching
for
institutional
controls
associated
with
properties
located
within
a
half
mile
of
the
subject
property
is
overly
burdensome.
The
final
rule
requires
that
the
search
for
institutional
controls
be
confined
to
the
subject
property
only
and,
thus,
does
not
differ
from
the
current
industry
practice.

Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
6
Excerpt
Text:
Regarding
the
heading
of
Summary
of
Regulatory
Costs
on
page
52571
of
the
proposed
rule:

­
it
states
" 
the
average
incremental
cost
of
the
proposed
rule
relative
to 
is
estimated
to
be
between
$
41
and
$
47."

­
This
incremental
cost
estimate
is
less
than
one
half­
hour
of
time
from
a
typical
environmental
professional
fee
schedule.
Although
many
similarities
exist
between
the
proposed
rule
and
ASTM
E1527,
just
becoming
aware
of
the
differences
will
far
exceed
the
estimated
incremental
cost
difference.

­
As
noted
in
the
Requirements
for
Public
Comments
on
page
52568
of
the
proposed
rule,
the
EPA
is
requesting
comments
on
at
least
23
topics
in
the
proposed
rule.
This
request
suggests
that
something
more
or
different
in
these
23
topics
than
what
is
currently
suggested
in
ASTM
E1527.
Just
assuming
a
minimum
of
one
half­
hour
is
required
to
adequately
address
each
topic
(
which
we
believe
is
a
very
conservative
estimate)
and
an
average
environmental
professional
fee
of
$
75/
hour,
this
would
result
in
an
additional
cost
of
$
862.50.

Response:
The
cost
of
becoming
familiar
with
the
final
rule
would
be
a
one­
time
cost
for
environmental
professionals.
The
environmental
professionals
would
likely
pass
some
or
all
of
that
cost
onto
their
customers.
The
more
Phase
I
ESAs
an
environmental
professional
performs,
all
other
things
equal,
the
lower
would
be
the
average
cost
per
Phase
I
ESA
passed
through
by
that
environmental
professional.
Therefore,
we
expect
that
this
one­
time
activity
would
have
a
negligible
impact
on
the
average
cost
of
Phase
I
ESAs.
Further,
once
the
final
rule
is
promulgated,
the
new
environmental
professionals'
education/
training
would
be
based
on
the
final
rule's
requirements.

EPA
requested
public
comments
on
the
standards
and
practices
included
as
part
of
the
proposed
rule.
The
list
of
topics
included
in
the
Federal
Register
was
intended
to
aid
the
public
in
commenting
on
the
proposed
rule
and
was
not
suggestive
of
the
activities
or
tasks
in
which
the
proposed
rule
differed
from
the
current
ASTM
E1527­
2000
standard.
731
Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
6
Excerpt
Text:
The
EPA's
Economic
Impact
Analysis
for
the
proposed
AAI
rules
state
that
the
average
incremental
cost
for
an
AAI­
compliant
ESA
versus
an
ASTM­
compliant
ESA
would
increase
up
to
$
47
per
assessment.
We
believe
the
average
incremental
costs
would
be
much
more
than
that
amount.
As
discussed
above,
greater
costs
will
be
incurred
during
an
AAI­
compliant
ESA
for
(
1)
the
expanded
research
requirements
(
review
of
government
records
and
historic
sources),
(
2)
the
need
for
additional
interviews
(
especially
tracking
down
neighboring
property
owners),
(
3)
the
requirement
for
written
justification
of
the
environmental
professional's
interpretation
of
the
rules
(
professional
discretion),
and,
perhaps,
(
4)
liability
insurance
premiums.
We
estimate
that
the
costs
for
an
AAIcompliant
ESA
may
be
as
much
as
50%
greater
than
for
an
ASTM­
compliant
ESA.

Additional
costs
for
the
prospective
buyer
include
the
need
to
obtain
a
full
chain­
of­
title
to
search
for
possible
environmental
cleanup
liens.
The
costs
for
a
full
chain­
of­
title
may
run
several
hundred
dollars
and
should
be
included
in
the
economic
impact
analysis
for
the
proposed
AAI
rules.

Response:
With
respect
to
historical
sources
review,
the
final
rule
does
not
require
any
additional
sources
to
be
reviewed
that
are
not
already
within
the
realm
of
sources
required
to
be
consulted
under
the
ASTM
E1527­
2000
standard.

With
respect
to
governmental
records
review,
we
recognize
that
the
proposed
rule
did
extend
the
search
for
institutional
controls
to
a
one­
half
mile
radius
of
the
subject
property
while
the
search
requirement
under
the
current
ASTM
E1527­
2000
standard
is
limited
to
the
subject
property.
EPA,
however,
has
revised
the
requirement
to
search
for
institutional
controls
in
the
final
rule
by
limiting
the
search
to
the
subject
property.

The
final
rule
does
not
explicitly
require
interviews
with
past
owners
and
occupants,
but
provides
that
the
environmental
professional
include
interviews
of
past
owners,
operators,
or
occupants
as
necessary
to
meet
the
proposed
objectives
and
in
accordance
with
the
proposed
performance
factors.
EPA
recognizes
that
locating
past
owners
and
occupants
may
be
more
time
consuming
than
originally
assumed
in
the
EIA
developed
for
the
proposed
rule.
Therefore,
we
revised
the
cost
estimates
in
the
EIA
to
account
for
the
incremental
burden
associated
with
locating
and
interviewing
past
owners
and
occupants
of
the
subject
property.
The
revised
cost
estimates
are
provided
in
the
addendum
to
the
EIA,
which
is
included
in
the
public
docket
for
the
final
rule.

We
disagree
with
the
commenter's
assertion
that
the
requirement
to
locate
neighboring
property
owners
will
impose
a
significant
burden
under
the
final
rule.
Neighboring
property
owners
will
need
to
be
interviewed
only
if
the
subject
property
is
abandoned.
Although
the
current
ASTM
E1527­
2000
standard
does
not
have
explicit
requirements
for
abandoned
properties,
it
is
reasonable
to
assume
that
the
environmental
professional
would
try
to
locate
past
owners
and
occupants
of
732
such
properties.
In
most
cases,
locating
neighboring
property
owners
should
be
less
time
consuming
then
locating
the
past
owners
and
occupants
of
the
subject
property.

With
respect
to
the
environmental
professional
signature
requirements,
the
final
rule
requires
that
the
written
report
include
two
signed
declarations
by
the
environmental
professional.
One
declaration
must
state
that
the
environmental
professional
meets
the
professional
criteria
as
defined
by
the
final
rule
under
§
312.10.
The
second
required
declaration
must
state
that
all
appropriate
inquiries
investigation
was
conducted
in
accordance
with
the
requirements
of
the
final
rule.
We
disagree
with
the
commenter's
suggestion
that
these
declaration
requirements
will
lead
to
an
increase
in
the
cost
of
conducting
a
Phase
I
ESA.
The
requirements
are
not
significantly
different
from
what
is
required
under
the
ASTM
E1527­
2000
standard.

With
respect
to
the
comment
regarding
liability
insurance,
it
is
not
clear
that
the
insurance
industry
will
react
to
the
final
rule
as
the
commenter
indicates.
It
is
also
possible,
for
example,
that
insurance
companies
will
cut
premiums
for
all
policies
that
might
be
affected
by
CERCLA
as
a
result
of
additional
liability
protection
the
statute
offers
to
prospective
purchasers
who
follow
the
standards
of
the
final
rule.

With
respect
to
the
requirement
to
search
for
environmental
cleanup
liens,
we
disagree
with
the
commenter
that
this
requirement
imposes
an
incremental
burden
on
a
property
purchaser.
Under
the
current
ASTM
E1527
standard,
it
is
the
prospective
property
owner's
responsibility
to
search
for
environmental
liens
that
are
currently
recorded
against
the
subject
property,
and
to
report
these
to
the
environmental
professional
conducting
the
Phase
I
ESA.
The
requirements
in
the
final
rule
are
no
different;
therefore,
there
will
be
no
incremental
cost
(
labor
or
expenses)
incurred
under
the
final
rule.
Thus,
even
if
the
cost
of
a
title
search
is
explicitly
accounted
for
under
the
base
case
and
under
the
final
rule,
the
average
incremental
cost
per
transaction
would
stay
unchanged.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
1
Excerpt
Text:
At
issue
herein
are
selected
cost
factors
as
evaluated
in
the
"
Economic
Impact
Analysis
for
the
Proposed
All
Appropriate
inquiries
Regulation
as
prepared
by
ICF
Consulting
and
dated
August
3,
2004.
This
document
renders
a
bottom
line
determination
of
an
expected
increase
in
Phase
I
costs
to
the
marketplace
as
being
less
than
$
50
per
report.
It
is
the
unanimous
opinion
in
our
office
that
this
result
is
not
only
invalid
but
that
the
formulations
on
which
it
is
based
are
also
fundamentally
flawed.

A
recently
conducted
survey
by
Environmental
Data
Resources,
Inc.
addressed
the
anticipated
cost
impacts
of
the
EPA
AAI
proposed
rules
on
Phase
1
assessments.
The
survey
included
more
than
500
Phase
I
providers
in
nine
U.
S.
cities.
The
majority
of
respondents
(
or
60%)
anticipate
cost
increases
of
more
than
10%,
with
16%
predicting
increases
of
more
than
20%.
A
companion
survey
also
indicated
that
most
consultants
in
the
private
sector
marketplace
charge
between
$
1,700
to
$
2,300
for
a
Phase
1
report,
depending
factors
such
as
type
of
property
and
geographic
area.
The
733
anticipated
cost
increases
relating
to
the
proposed
rules
are
obvious
and
substantial.
The
question
arises,
how
can
so
many
front
line
providers
of
Phase
1
reports
be
wrong.
I
submit
that
they
are
not.
In
my
opinion
the
cost
for
a
phase
1
will
increase
by
at
least
15
to
20%
if
the
new
rule
goes
into
effect.
Because
the
proposed
rule
is
vague
and
untested
it
is
hard
to
give
an
exact
estimate,
but
I
am
confident
it
will
be
at
least
this
much.

Response:
The
Agency
based
its
cost
estimates
on
an
evaluation
of
the
differences
between
the
proposed
standards
for
the
rule
and
the
content
of
the
ASTM
E1527­
2000
standard.
EPA
identified
the
technical
differences
between
the
proposed
rule
and
the
ASTM
E1527­
2000
standard
and
then
estimated
the
costs
associated
with
conducting
those
regulatory
activities
that
represent
tasks
over
and
above
those
conducted
in
implementing
the
ASTM
standard.

To
address
the
commenter's
concern
that
the
EDR
survey
results
may
be
more
reliable
than
the
estimates
presented
in
the
EIA,
the
Agency
conducted
a
sensitivity
analysis
using
the
alternative
cost
estimates
and
presents
the
results
in
an
addendum
to
the
EIA
developed
for
the
proposed
rule.
The
addendum
is
available
in
the
public
docket
for
the
final
rule.
Our
sensitivity
analysis
shows
that
the
final
rule
would
not
have
annual
incremental
cost
impacts
in
excess
of
the
$
100
million
threshold
set
for
significant
regulatory
actions
even
if
the
average
incremental
costs
per
Phase
I
ESA
were
of
the
magnitude
suggested
by
the
EDR
survey
respondents.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
2
Excerpt
Text:
As
the
table
acknowledges,
"
All"
property
types
will
affect,
however,
no
incremental
increase
in
labor
costs
is
expected.
This
is
because
ICF
states
that
the
proposed
rule
does
not
require
any
more
review
of
these
record
sources
than
current
ASTM
practice.
This
assumption
is
incorrect.
ASTM
E1527
limits
records
reviews
to
standard
enumerated
sources.
The
new
rule,
on
the
other
hand,
requires
a
"
performance
based"
review
that
is
essentially
open
ended.
The
new
rule
will
require
searching
substantially
more
records
and
will
take
many
additional
hours.
Once
again,
using
Environmental
Data
Resources
as
a
reference,
their
website
presently
posts
that
in
response
to
the
AAI
proposed
rules
that
they
have
"
added
475
new
databases
and
counting"
so
as
to
assist
their
clientele
in
dealing
with
the
upcoming
AAI
rules.
While
we
cannot
give
an
exact
number,
it
is
reasonable
to
assume
that
a
significant
number
of
additional
database
records
will
be
added.
The
resulting
bottom
line
labor
costs
impacts
are
related
to
the
significantly
increased
labor
time
in
the
review,
and
more
importantly
the
evaluation
of
the
additional
information.
Additionally,
the
new
source
research
item
must
be
added
to
the
resulting
due
diligence
report
along
with
the
written
evaluation
of
the
result.

Sec.
312.29,
Commonly
Known
or
Reasonably
Ascertainable
Information
About
the
Property
What
information
is
commonly
known
and
who
commonly
knows
it?
The
environmental
professional
may
refer
to
one
or
more
of
four
listed
sources
of
information.
At
such
time
that
this
rule
is
eventually
sorted
out
in
the
courts,
will
only
one
of
the
four
be
enough?
This
question
begs
734
specific
resolve
now
rather
than
later
because
of
the
liability
issues.
Was
the
information
reasonably
obtainable?
This
is
extremely
arbitrary.
The
performance
based
approach
of
the
new
rule
will,
however,
force
environmental
consultants
to
spend
many
hours
researching
the
commonly
known
category
newly
created
by
this
rule.
ICF
assumes
that
this
category
is
already
included
in
searches
conducted
pursuant
to
ASTM
E1527
and
allocates
no
additional
cost.
This
is
incorrect.
ASTM
E1527­
00
§
7.1.4;
and
7.3.2.3
fulfill
the
requirements
of
CERCLA
and
strictly
limit
the
application
of
commonly
known
or
reasonably
ascertainable
information
to
specifically
enumerated
sources.
The
new
rule
requires
consultants
to
conduct
an
open­
ended
search
throughout
the
local
community.

Even
the
sources
have
fundamental
flaws
in
being
obtainable
or
practical.
Source
(
1)
Current
owners
or
occupants
of
neighboring
properties
who
may
have
knowledge
of,
or,
information
related
to
the
subject
property
­
Problem:
in
a
private
sector
transaction,
the
existence
of
the
transaction
itself,
particularly
in
the
early
stages,
is
confidential
in
nature.
Source
(
2)
Local
and
State
government
officials
who
may
have
knowledge
of,
or,
information
related
to
the
subject
property
­
Problem:
Fire
Marshals
and
other
such
individuals
in
local
government
departments
have
their
own
responsibilities
and
are
spread
thin
due
to
inadequate
staffing.
Thusly,
these
resources
are
not
practical
or
readily
ascertainable,
but
would
the
courts
see
it
in
the
light
of
such
practical
reality?
Source
(
3)
Others
with
knowledge
of
the
subject
property
­
Problem:
who
are
others
and
will
the
courts
decide.
Source
(
4)
Other
sources
of
information,
eg.
newspapers,
websites,
community
organizations,
local
libraries
and
historical
societies,
Problem:
also
concerns
me
from
a
liability
perspective.
Does
a
Google
search
turn
something
up?
Does
the
librarian
know
something
that
the
other
librarian
doesn't?

The
above
paragraph
references
some
of
the
practical
considerations
and
liability
issues
but
the
economic
dynamic
remains.
What
are
the
cost
dynamics
of
discovering
this
"
commonly
known
and
reasonably
ascertainable
information?"
Exhibit
7­
7
indicates
that
no
price
increase
will
occur.
ICF's
conclusion
is
based
on
invalid
assumptions
and
is
erroneous.

Response:
With
respect
to
historical
sources
review,
the
final
rule
does
not
require
any
additional
historical
sources
to
be
reviewed
that
are
not
already
within
the
realm
of
sources
required
to
be
consulted
by
the
ASTM
E1527­
2000
standard.
With
respect
to
governmental
records,
the
final
rule
does
explicitly
require
review
of
tribal
records.
EPA,
however,
clarified
in
the
preamble
to
the
final
rule
that
tribal
records
need
only
be
searched
for
and
reviewed
in
those
instances
where
the
subject
property
is
located
on
or
near
tribal­
owned
lands.
When
such
records
are
not
available,
necessary
information
should
be
sought
from
other
sources.
The
EIA
assumed
that
this
requirement
would
be
fulfilled
to
the
extent
that
tribal
records
are
easily
available,
through,
for
example,
the
EDR
database.
If
such
records
are
not
available,
it
is
likely
that
the
environmental
professional
would
attempt
to
obtain
the
relevant
information
during
the
interview
process,
and
therefore
there
would
be
no
incremental
cost
associated
with
the
requirement.

The
final
rule
requires
environmental
professionals
to
supplement
the
searches
and
reviews
of
historical
and
governmental
records
with
commonly
known
or
reasonably
ascertainable
information
about
the
subject
property.
This
requirement
was
included
in
the
previous
provisions
for
the
CERCLA
innocent
landowner
defense
and,
therefore,
is
not
an
incremental
burden
imposed
by
the
735
final
rule.
The
sources
of
information
listed
in
the
final
rule
are
provided
as
examples
only.
There
may
be
additional,
or
better,
sources
of
commonly
known
information.
Many
sources
of
information
may
be
reasonably
attainable.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
3
Other
Sections:
NEW
­
3.8.1
­
The
environmental
professional
should
not
be
required
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property
Excerpt
Text:
Although
the
proposed
rule
apparently
envisions
that
the
valuation
analysis
will
be
conducted
by
the
purchaser
rather
than
the
environmental
professional,
it
also
requires
the
report
of
the
environmental
professional
to
take
into
account
this
information.
The
Environmental
professional
simply
has
no
business
in
this
part
of
a
real
estate
transaction.
In
the
private
sector,
the
purchase
price
of
a
property
is
confidential
to
the
buying
and
selling
parties
involved
in
the
transaction.
The
third
party
vendors
are
not
commonly
privy
to
this
information
and
are
not
expected
to
ask.
If
I
were
to
make
common
practice
of
asking
my
clients
about
the
financial
specifics
of
their
deal,
they
would
tell
me
that
it
is
none
of
my
business,
and
they
would
be
right.
Private
sector
transactions
as
they
are
being
conducted
are
just
that,
private.

In
any
event,
the
ICF
analysis
includes
a
modicum
of
time
for
the
environmental
professional
to
consider
this
market
value
information,
but
no
time
or
cost
allocation
for
the
purchaser
to
conduct
the
market
value
analysis.
The
actual
conduct
of
the
market
valuation
will
definitely
have
some
cost.
If
the
environmental
professional
were
to
be
responsible
for
considering
this
information
(
which
I
oppose)
it
would
surely
take
longer
than
the
half
hour
allotted
by
ICF
and
would
surely
come
into
play
in
virtually
all
transactions
because
the
purchaser
would
conduct
a
defensive
appraisal
for
fear
of
liability
exposure.

Beyond
this,
an
environmental
professional
is
not
in
an
informed
position
to
be
able
to
"
take
into
account"
such
comparable
price
analyses
of
multiple
parcels
of
real
estate
in
an
area
and
draw
an
experienced
conclusion
regarding
purchase
price.
But
that
is
what
proposed
section
312.21(
b)
would
require.
This
is
a
separate
industry
altogether.
I
urge
that
this
proposed
section
3.12.29
be
removed.

Response:
EPA
disagrees
with
the
commenter
that
the
requirement
to
consider
the
relationship
between
the
purchase
price
and
the
fair
market
value
of
the
property
(
if
it
were
not
contaminated)
will
significantly
impact
the
costs
of
conducting
Phase
I
ESAs.
The
final
rule
does
not
require
that
a
formal
real
estate
appraisal
be
conducted.
In
addition,
this
requirement
has
been
part
of
the
all
appropriate
inquiries
requirements
since
Congress
amended
CERCLA
to
provide
for
the
innocent
landowner
defense
in
1986.
The
requirement
in
the
final
rule
includes
no
changes
to
the
previous
requirement.
Therefore,
the
EIA
only
accounts
for
some
incremental
labor
hour
burden
for
the
environmental
professional
to
document
the
results
of
an
inquiry
into
the
relationship
of
the
purchase
price
to
the
value
of
the
property.
This
requirement,
however,
is
expected
to
impact
only
736
a
fraction
of
the
properties
(
i.
e.,
those
where
there
are
significant
differences
between
the
purchase
price
and
the
fair
market
value
of
the
property).

With
respect
to
the
commenter's
request
that
the
requirement
under
§
312.29
be
removed
from
the
rule,
the
Agency
notes
that
this
requirement
is
one
of
the
ten
statutory
criteria
specifically
required
by
Congress
to
be
included
in
the
final
regulation.
In
addition,
this
requirement
has
been
part
of
the
all
appropriate
inquiries
provisions
under
the
CERCLA
innocent
landowner
defense
since
1986.
Therefore,
the
Agency
did
not
make
any
modification
to
this
requirement
in
the
final
rule.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
4
Other
Sections:
NEW
­
6.6
­
Impact
of
the
rule
on
the
cost
of
liability
insurance
Excerpt
Text:
In
addition
to
the
sections
discussed
above,
the
interviews,
historical
sources,
and
lien
search
provisions
of
the
new
rule
all
add
substantial
cost
and
uncertainty
to
the
conduct
of
a
phase
1
site
assessment.

The
ASTM
­
1527
protocol
serves
the
private
sector
efficiently
from
both
the
performance
and
cost
perspectives.
The
proposed
AAI
rules
essentially
forces
a
public
sector
approach
to
real
estate
transactions
on
a
private
sector
marketplace
that
operates
under
strict
time
and
cost
constraints.
Nonetheless,
the
overall
time
and
cost
ramifications
on
the
private
sector
marketplace
have
not
been
been
credibly
addressed
by
ICF
in
the
document
issued
for
the
EPA.
The
zero
time
and
related
cost
allowances
put
forth
by
ICF
not
only
ignore
the
obvious
labor
cost
burdens
but
also
the
related
abstract
costs
such
as
increased
professional
liability
premiums,
more
conducted
Phase
II's
to
close
data
gaps,
and
fewer
providers
in
the
marketplace
as
a
result
of
the
proposed
stringent
Environmental
professional
qualifications.

ICF's
determinations
are
arbitrary
in
nature
and
may
well
be
based
on
arbitrarily
established
foundations.
Such
arbitrary
foundations
were
voiced
by
EPA
representatives
at
an
AAI
workshop
held
as
part
of
ASTM's
meeting
in
Washington
DC
on
October
5,
2004,
"
ICF's
baseline
was
E
1527,
but
that's
not
being
met
right
now
by
many
poor­
quality
consultants.
If
the
industry
was
truly
following
ASTM,
the
impact
wouldn't
be
as
great.
Many
are
claiming
their
Phase
Is
are
ASTMcompliant
when
in
fact
they're
falling
short
of
the
bar."
Seems
to
be
a
perception
among
committee
members
and
EPA
players
here
that
if
you're
doing
good
work
now,
then
there's
not
a
whole
lot
that's
changing.

The
base
line
is,
in
fact,
that
the
private
sector
market
place
is
functioning
well
under
E
1527
and
that
most
consultants
are
doing
their
jobs
in
compliance
with
the
protocol.
The
new
rule
simply
adds
a
significant
amount
of
work
that
is
not
required
by
current
industry
practice.
The
proposed
AAI
rules
significantly
expand
consultant
liability
exposure,
which
will
result
in
higher
errors
and
omissions
insurance
premiums.
The
new
rule
will
increase
labor
costs
and
associated
time
dynamics
of
the
due
diligence
process.
In
many
instances
it
may
be
impossible
to
comply
with
the
new
rule
within
the
timeframe
that
the
marketplace
allows
for
closing
commercial
real
estate
transactions.
737
Response:
The
Agency
based
its
cost
estimates
on
an
evaluation
of
the
differences
between
the
proposed
standards
for
the
rule
and
the
content
of
the
ASTM
E1527­
2000
standard.
EPA
identified
the
technical
differences
between
the
proposed
rule
and
the
ASTM
E1527­
2000
standard
and
then
estimated
the
costs
associated
with
conducting
those
regulatory
activities
that
represent
tasks
over
and
above
those
conducted
in
implementing
the
ASTM
standard.

With
respect
to
the
commenter's
remark
regarding
the
incremental
burden,
the
commenter
failed
to
recognize
that
the
EIA
includes
estimates
of
incremental
burden
hours
for
a
number
of
the
new
requirements
included
in
the
proposed
and
final
rules.

With
respect
to
the
commenter's
remark
regarding
liability
insurance,
it
is
not
clear
that
the
insurance
industry
would
react
to
the
final
rule
as
the
commenter
indicates.
It
is
also
possible,
for
example,
that
insurance
companies
will
cut
premiums
for
all
policies
that
might
be
affected
by
CERCLA
as
a
result
of
additional
liability
protection
the
statute
offer
to
prospective
landowners
who
comply
with
the
provisions
of
the
final
rule.

With
respect
to
the
commenter's
remark
regarding
the
proposed
definition
of
environmental
professional,
EPA
has
modified
the
definition
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
in
the
final
rule
is
less
stringent
than
the
definition
included
in
the
proposed
rule
and
allows
for
most
people
currently
conducting
environmental
site
assessments
to
qualify
as
environmental
professionals.

Commenter
Organization
Name:
Wike,
Dennis
Comment
Number:
PM­
0127­
0003
Excerpt
Number:
2
Excerpt
Text:
My
one
question
I
saw
in
here
is
the
issue
of
the
proposed
cost.
Help
me
if
I'm
wrong,
but
is
that
proposed
in
there
that
they
think
it
will
only
cause
a
$
46
increase
to
go
from
a
Phase
I
today
to
the
all
appropriate
inquiries?

If
that's
correct,
I
would
disagree
with
that.
I
think
you'll
see
a
several
hundred
dollar
increase
per
Phase
I.
I
believe
the
product
to
be
substantially
better
and
I
believe
the
qualifications
of
those
conducting
it
will
be
substantially
better,
and
I
think
you
will
do
the
general
industry
a
great
service
by
keeping
those
standards
in
there
and
requiring
that
the
professionals
that
do
this
demonstrate
that
they
are
professionals.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
provisions
of
the
final
rule.

The
Agency
based
its
cost
estimates
on
an
evaluation
of
the
differences
between
the
proposed
standards
for
the
rule
and
the
content
of
the
ASTM
E1527­
2000
standard.
EPA
identified
the
technical
differences
between
the
proposed
rule
and
the
ASTM
E1527­
2000
standard
and
then
738
estimated
the
costs
associated
with
conducting
those
regulatory
activities
that
represent
tasks
over
and
above
those
conducted
in
implementing
the
ASTM
standard.

To
address
public
comments
regarding
the
potential
cost
impacts
of
the
final
rule,
EPA
conducted
a
sensitivity
analysis
in
the
addendum
to
the
EIA.
The
analysis
shows
that
the
final
rule
will
not
have
annual
impacts
in
excess
of
the
$
100
million
threshold
set
for
major
rules
even
if
the
incremental
costs
per
Phase
I
ESA
increases,
on
average,
by
$
200.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
PM­
0127­
0012
Excerpt
Number:
3
Excerpt
Text:
The
third
issue,
on
cost,
I
think
it's
a
little
off
base.
The
requirement
of
checking
the
environmental
liens
itself
is
about
a
$
250
process
on
average,
to
hire
someone
qualified
to
go
down
to
a
court
house
to
run
the
records
and
pull
these
liens
out.
That
in
itself
would
add
in
round
numbers,
$
250
to
the
price
of
a
Phase
I
report.

Response:
EPA
thanks
the
commenter
for
his
suggestion.
Under
the
ASTM
E
1527­
2000,
it
is
the
prospective
property
owner's,
or
the
user's,
responsibility
to
check
for
environmental
liens
that
are
currently
recorded
against
the
subject
property,
and
to
report
these
to
the
environmental
professional
conducting
the
Phase
I
ESA.
The
final
rule
does
not
impose
any
different
requirements
than
the
current
ASTM
standard;
therefore,
there
would
be
no
incremental
cost
(
labor
or
expenses)
incurred
under
the
final
rule.
Even
if
the
cost
of
a
title
search
is
explicitly
accounted
for
under
the
base
case
(
the
ASTM
E1527­
2000
standard)
and
under
the
final
rule,
the
average
incremental
cost
per
transaction
would
stay
unchanged.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
17
Other
Sections:
MODIFIED
­
3.5.2.1
­
Search
distance
for
institutional
and
engineering
controls
Excerpt
Text:
The
requirement
of
§
312.26
to
search
registries
or
publicly
available
information
for
brownfield
sites,
engineering
controls,
and
institutional
controls
is
simply
not
feasible.
Such
records
are
typically
kept
in
a
property­
by­
property
basis,
e.
g.,
recorded
in
title
records
for
each
property.
Surely,
Congress
did
not
intend
searching
title
records
for
every
parcel
of
real
estate
within
onehalf
mile
for
each
proposed
transaction.
Similarly,
the
Economic
Impact
Analysis
did
not
include
any
costs
to
address
these
requirements
that
are
above
the
current
E
1527­
00
practice.
Therefore,
the
Analysis
understates
the
impact
of
this
Proposed
Rule.

Response:
EPA
thanks
the
commenters
for
their
concern
regarding
the
cost
burden
associated
with
the
proposed
rule
under
§
312.26.
EPA
agrees
with
the
commenter
that
the
EIA
underestimated
the
739
incremental
labor
hours
required
to
conduct
the
search
for
institutional
controls,
as
required
under
the
proposed
rule.
EPA,
however,
revised
the
search
requirement
for
institutional
controls
in
the
final
rule
by
limiting
the
search
for
institutional
controls
to
the
subject
property.
The
EIA,
therefore,
does
not
need
to
be
revised.
740
4.2
The
Volume
of
Phase
I
ESAs
Performed
Using
the
AAI
Standard
is
Overestimated/
Underestimated
Commenter
Organization
Name:
Morris,
Michael
Comment
Number:
0114
Excerpt
Number:
1
Excerpt
Text:
Several
assumptions
were
made
regarding
the
frequency
that
the
AAI
protocol
will
be
used.
Although
the
AAI
regulations
will
apply
to
most
commercial
property
transactions,
there
will
be
a
substantial
number
of
assessments
that
will
not
fulfill
all
the
criteria.
Many
of
these
incomplete
assessments
will
be
abbreviated
at
the
request
of
the
client
to
reduce
the
cost.
Furthermore,
because
of
the
increased
cost
for
an
assessment,
fewer
assessments
will
be
performed.
This
will
be
especially
true
in
small
brownfield
type
parcels
where
the
assessment
cost
becomes
a
significant
increase
in
the
total
cost
of
the
transition.

Response:
EPA
thanks
the
commenter
on
his
concern
regarding
the
number
of
affected
properties.
Because
the
final
rule
will
increase
the
level
of
certainty
regarding
the
criteria
that
must
be
met
for
a
prospective
property
owner
to
obtaining
protection
from
CERCLA
liability,
while
imposing
only
minimal
cost
increases,
we
do
not
believe
the
rule
will
have
a
significant
negative
effect
on
the
volume
of
Phase
I
ESAs
conducted,
as
the
commenter
has
indicated.
We
recognize,
however,
that
there
is
a
degree
of
uncertainty
surrounding
the
number
of
prospective
property
owners
who
will
be
affected
by
the
final
rule.
To
the
extent
that
the
EIA
overestimated
the
number
of
affected
prospective
property
owners
(
or
property
transactions),
as
the
commenter
has
suggested,
the
total
cost
of
the
final
rule
also
is
overestimated.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
16
Excerpt
Text:
The
methodology
used
to
estimate
the
cost
and
impacts
of
todays
proposed
rule,
including
the
estimated
incremental
labor
hours
used
to
estimate
the
incremental
cost
of
the
proposed
rule.

This
estimate
depends
in
large
part
upon
assumptions
about
changes
in
practice
from
the
Current
ASTM
1527
and
1528.
From
my
experience,
while
the
stated
purpose
of
conducting
an
ASTM
Phase
1
or
Transaction
Screen
is
to
satisfy
one
of
the
requirements
for
an
innocent
landowner
defense,
that
is
rarely
the
reason
they
are
performed.
This
is
important
because
the
ASTM
documents
are
primarily
used
as
a
screening
document
to
identify
environmental
business
risk.
Individuals
that
were
specifically
concerned
about
ILD,
especially
on
a
complicated
site
would
use
a
Phase
1
and
not
a
Transaction
Screen.
I
suppose
one
could
argue
that
since
the
TS
screen
isn't
commonly
used
for
ILD
there
is
no
need
to
address
it
as
a
side
by
side
comparison
of
cost.
People
are
still
free
to
use
a
Transaction
Screen
type
document
if
they
do
not
desire
the
LLP's.
My
guess
is
that
industry
will
not
adopt
AAI
as
the
only
environmental
due
diligence
process.
This
would
reduce
the
estimated
cost
impacts.
741
Response:
EPA
thanks
the
commenter
on
his
suggestion
on
the
volume
of
Phase
I
ESAs
that
may
be
conducted
in
compliance
with
the
final
rule.
We
agree
with
the
commenter
that
there
is
a
degree
of
uncertainty
surrounding
the
number
of
affected
parties
or
property
transactions
under
the
final
rule.
To
the
extent
that
the
EIA
overestimated
the
number
of
affected
properties,
as
the
commenter
has
suggested,
the
total
cost
of
the
final
rule
also
is
overestimated.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
2
Excerpt
Text:
Cost
­
While
the
cost
of
performing
"
phase
I"
investigations
probably
suffers
little
impact
as
a
result
of
the
proposed
rule,
the
frequency
of
phase
I
investigations
will
likely
increase
as
a
result
of
elimination
of
transaction
screens
as
a
means
of
satisfying
requirements
for
AAI.
I
do
not
believe
that
the
increased
frequency
of
phase
I
investigations
was
considered
in
evaluating
the
cost
impact
of
this
regulation.
The
economic
analysis
should
be
revised
to
reflect
these
additional
costs.
(
Note
that
it
is
my
understanding
that
elimination
of
the
transaction
screen
stems
from
counsel's
interpretation
of
the
legislation,
not
conclusions
of
the
FACA
committee.)

Response:
The
EIA
did
consider
the
increased
frequency
of
Phase
I
ESAs
and
the
potential
decreased
use
of
the
transaction
screen
after
promulgation
of
the
final
rule.
Specifically,
in
the
EIA,
EPA
assumed
that
properties
transitioning
from
transaction
screens
to
Phase
I
ESAs
would
account
for
three
percent
of
the
total
Phase
I
ESAs
performed
annually.
742
4.3
The
Impact
of
the
Rule
on
State,
Local,
and
Tribal
Governments
Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
10
Excerpt
Text:
On
a
side
note,
this
impact
will
also
have
a
chilling
effect
on
minority
environmental
business
bids
for
government
contracts.
Government
agencies
will
be
forced
to
accept
less
minority
environmental
business
and
submit
to
engineering
firm
prices
(
reasonable
or
not).

These
numbers
are
significant,
and
will
receive
negative
impact
from
the
regulation
directly
and
indirectly.
Using
the
calculation
of
total
minorities
in
the
non­
engineering
environmental
profession,
approximately
$
39,505,232,188
in
wages
will
be
lost
or
significantly
impacted
by
the
proposed
regulation
[
Footnote:
Average
Hourly
Earnings
of
Production
and
Non­
Supervisory
Workers,
Database
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].
The
reason
why
these
wages
and
jobs
will
be
lost
is
the
fact
that
engineers
will
receive
a
legalized
monopoly
by
EPA
for
Brownfields
assessments.
Simply,
put
other
non­
engineering
environmental
professionals
will
either
be
absorbed
into
engineering
firms
for
lower
engineering
technician
wages
or
be
driven
to
unemployment.

Ironically,
the
regulation
will
have
a
severe
effect
of
non­
engineering
environmental
professionals
in
states
where
USEPA
has
already
piloted
Brownfields
programs
such
as
Montana,
Utah,
and
Colorado
[
Footnote:
USEPA
Region
8
Brownfields
Assessment
Pilots/
Grants,
Map
(
Washington:
US
Environmental
Protection
Agency,
March
2004).].
Each
of
these
states
have
moderate
to
high
unemployment
and
have
Brownfields
programs
[
Footnote:
US
Unemployment
Rates
by
State
Map
(
Washington:
Bureau
of
Labor
Statistics,
September
2004).].

It
might
be
argued
that
this
number
is
too
high;
however,
it
was
calculated
using
minimum
wage
standards
for
all
professions.
In
reality,
this
should
be
significantly
higher
based
on
average
wages
for
environmental
professionals
and
would
probably
enter
the
hundreds
of
billion
of
dollars
in
lost
wages.
Even
at
a
fraction,
the
lost
wages
alone
will
indirectly
have
a
significant
impact
on
taxes
and
funding
for
future
environmental
programs.

Response:
In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
environmental
professional,
EPA
modified
the
definition
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience
in
performing
environmental
site
assessments,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
of
environmental
professional
in
the
final
rule
is
less
stringent
than
the
definition
included
in
the
proposed
rule
and
allows
for
most
people
who
currently
are
conducting
environmental
site
investigations
to
qualify
as
environmental
professionals.
743
Commenter
Organization
Name:
Young,
Richard
Comment
Number:
0243
Excerpt
Number:
11
Excerpt
Text:
States
Rights
The
US
Environmental
Protection
Agency
has
failed
to
recognize
the
other
professional
licenses
offered
by
individual
State
departments
of
professional
regulation.
Licenses
in
California
and
Nevada
have
comparable
programs
that
are
endorsed
and
operated
by
regulatory
bodies
that
offer
the
same
types
of
services
that
a
Brownfields
professional
can
offer
through
the
proposed
regulation.
If
the
proposed
regulation
is
adopted,
other
environmental
professionals
will
leave
these
licenses
to
pursue
other
types
of
employment
or
different
licensure.
Simply
put,
individual
State
governments
will
lose
revenue
at
the
expense
of
the
proposed
regulation.
While
this
lost
revenue
at
the
State
level
may
not
be
significant
to
Federal
programs,
it
will
impact
State
department
of
natural
resource
programs
that
are
an
indirect
recipient
of
these
lost
revenues.

Response:
The
definition
of
environmental
professional
in
the
final
rule
(
as
did
the
definition
in
the
proposed
rule)
allows
for
individuals
who
are
not
P.
E.
s
or
P.
G.
s
to
qualify
as
environmental
professionals.
The
final
rule
(
as
did
the
proposed
rule)
specifically
recognizes
within
the
definition
of
environmental
professionals,
individuals
licensed
or
certified
by
a
state
or
tribal
agency
to
conduct
environmental
site
assessments.

In
addition,
the
final
rule
allows
for
persons
who
do
not
qualify
as
environmental
professionals
to
contribute
to
the
required
investigations
as
long
as
their
activities
are
conducted
under
the
responsible
charge
of
the
environmental
professional.

In
response
to
many
comments
EPA
received
on
the
proposed
definition
of
environmental
professional,
EPA
modified
the
definition
in
the
final
rule
to
provide
for
persons
who
have
10
years
of
full­
time
relevant
experience
in
performing
environmental
site
assessments,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
of
environmental
professional
in
the
final
rule
is
less
stringent
than
the
definition
included
in
the
proposed
rule
and
allows
for
most
people
who
currently
are
conducting
environmental
site
investigations
to
qualify
as
environmental
professionals.

Commenter
Organization
Name:
Montana
DEQ
Comment
Number:
0335
Excerpt
Number:
10
Excerpt
Text:
In
addition,
DEQ
believes
that
the
proposed
AAI
rule
potentially
imposes
an
enforceable
duty
on
state,
local
and
tribal
governments.
If
an
entity
applies
for
a
brownfields
grant,
AAI
must
be
conducted
on
all
sites
where
the
money
will
be
spent.
In
the
case
of
brownfields
cleanup
grants,
AAI
must
be
conducted
prior
to
applying
for
the
brownfields
funds;
therefore,
DEQ
believes
that
744
the
statement
"
The
proposed
rule
imposes
no
enforceable
duty
on
any
state,
local,
or
tribal
governments"
is
incorrect.

Response:
To
establish
eligibility,
brownfields
cleanup
grant
applicants
must
demonstrate
that
they
own
the
property
where
the
cleanup
will
be
conducted
and
that
the
applicant
is
not
a
potentially
responsible
party.
The
most
common
way
of
making
that
demonstration
is
by
establishing
that
the
applicant
is
a
bona
fide
prospective
purchaser
of
the
property.
The
requirements
for
qualifying
as
a
bona
fide
prospective
purchaser
include
conducting
all
appropriate
inquiries
prior
to
the
date
of
acquisition
of
the
property.
This
is
not
an
enforceable
duty
under
the
Unfunded
Mandates
Act.
No
one
is
required
to
apply
for
a
brownfields
grant.
In
cases
where
EPA
awards
a
brownfields
assessment
grant,
the
statute
requires
that
the
assessment
be
conducted
in
compliance
with
the
all
appropriate
inquiries
rule.
However,
the
cost
of
the
assessment
is
covered
by
the
grant.
In
addition,
Congress
established
the
requirements
for
grant
eligibility
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act.
In
the
final
rule
setting
federal
standards
for
the
conduct
of
all
appropriate
inquiries,
EPA
does
not
require
any
additional
parties
to
conduct
all
appropriate
inquiries.
The
applicability
of
the
standards
is
established
in
CERCLA
and
includes
only
those
parties
wishing
to
obtain
protection
from
CERCLA
liability
as
bona
fide
prospective
purchasers,
innocent
landowners,
or
contiguous
property
owners
and
those
who
receive
brownfields
grants
to
conduct
property
assessments.
745
SECTION
5:
Comments
on
the
Paperwork
Reduction
Act
Commenter
Organization
Name:
Intertox
Comment
Number:
0396
Excerpt
Number:
20
Other
Sections:
NEW
­
3.3
­
Review
of
historical
sources
of
information
Excerpt
Text:
­
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.

­­
While
Intertox
does
not
have
any
comment
about
U.
S.
EPA's
burden
estimates
we
do
believe
that
the
use
of
automated
collection
techniques
represents
information
liability
to
the
environmental
professional.
It
is
common
practice
for
environmental
consultants
to
use
several
national
companies
to
conduct
review
of
government
records.
When
these
services
first
became
available
in
the
late
1980s
the
quality
was
suspect,
however,
these
searches
are
now
reliable
and
accurate.
What
we
are
concerned
with
is
the
use
of
these
companies
by
environmental
professionals
for
reviewing
historical
sources
of
information.
For
instance,
city
directory
research,
recorded
title
searches,
and
interviews
with
local
government
officials
are
offered
by
these
companies.
It
is
our
experience,
especially
with
recorded
title
searches,
that
the
effort
expended
by
these
companies
is
insufficient
to
adequately
characterize
a
site's
history.
We
have
seen
in
particular,
poorly
conducted
title
searches
and
city
directory
searches
that
are
incomplete.
In
addition,
only
the
environmental
professional
should
make
contact
with
local
government
officials,
as
they
know
better
than
anyone
else
the
questions
that
need
to
be
asked
relative
to
their
subject
property.
Accordingly,
we
recommend
that
automated
collection
techniques
not
be
utilized
to
acquire
historical
sources
of
information.

Response:
EPA
appreciates
the
commenter's
concerns.
When
information
is
collected
from
secondary
sources,
the
environmental
professional
and
the
prospective
purchaser
should
make
every
effort
to
evaluate
the
quality
of
the
information
prior
to
accepting
its
accuracy.
Given
the
time
and
cost
burdens
that
could
be
associated
with
requiring
every
prospective
property
owner
to
collect
all
historical
records
information
from
primary
sources,
when
excellent
and
accurate
secondary
sources
are
available,
the
Agency
can
not
disallow
the
use
of
automated
data
collection
techniques,
as
the
commenter
proposes.
746
SECTION
6:
Miscellaneous
6.1
EPA
Should
Adopt
ASTM
Standard
Rather
than
Develop
Separate
Regulations
Commenter
Organization
Name:
Franz,
Barry
Comment
Number:
0068
Excerpt
Number:
1
Other
Sections:
NEW
­
1.1.1.2
­
Support
of
the
performance
standard
Excerpt
Text:
Some
key
points
of
the
AAI
rule
that
I
like
is
the
fact
that
the
AAI
rule
encourages
a
performance­
based
approach
rather
than
a
"
prescriptive/
mandatory"
application
of
a
standard
(
e.
g.
ASTM
El527­
00).
This
approach
allows
an
environmental
professional
to
resolve
data
gaps
based
upon
the
professional's
experience.
Another
critical
aspect
of
the
AAI
rule
that
I
like
and
appreciate,
is
the
definition
of
what
constitutes
an
environmental
professional
and
what
qualifications
one
should
have.

However,
I
am
not
entirely
convinced
that
we
need
the
AAI
rule.
The
ASTM
Standard,
El
527­
00,
has
served
as
the
de
facto
standard
for
a
number
of
years
and
is
recognized
by
the
real
estate
and
financial
communities
as
an
acceptable
demonstration
for
environmental
due
diligence.
Although
I
have
a
number
of
issues
with
the
ASTM
Standard,
I
can
not
state
that
it
has
not
worked
to
the
satisfaction
of
my
clients,
and
the
real
estate
and
financial
communities.
It
has
performed
reasonable
in
defining
the
overall
environmental
risk
posed
by
a
site.

In
summary,
if
we
must
have
a
promulgated
regulation,
then
the
AAI
rule
as
proposed
is
acceptable.
However,
I
believe
that
the
clarifications
made
in
the
rule
could
be
adopted
into
the
existing
ASTM
standard
and
this
standard
would
serve
just
as
well.

Response:
EPA
thanks
the
commenter
for
the
stated
support
for
the
performance­
based
approach
to
the
final
rulemaking.

Prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
has
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process
to
address
the
inconsistencies.
EPA
has
determined
that
the
updated
standard
is
compliant
with
the
statute
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
comply
with
the
final
rule.
747
Commenter
Organization
Name:
Wood,
Larry
Comment
Number:
0218
Excerpt
Number:
1
Excerpt
Text:
1.
I
am
a
user
of
the
current
ASTM
Standard
E1527
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process".
It
is
my
understanding
that
USEPA
is
considering
the
creation
of
a
document
having
the
sole
purpose
of
replacing
the
current
ASTM
E1527.

2.
I
feel
the
current
E1527
Standard
is
useful,
appropriate
and
valuable
for
the
purpose
intended.
I
would
hope
the
USEPA
ensures
this
Standard
remains
part
of
the
Environmental
Site
Assessment
process.
I
am
not
a
member
of
ASTM
and
have
no
vested
interest
in
the
document
but
personally
consider
the
work
ASTM
has
put
in
to
development
and
maintenance
to
be
very
valuable
to
the
Environmental
Assessment
Process.

3.
Any
process
can
be
improved,
but
I
see
no
need
for
the
EPA
to
spend
money
to
develop
a
new
standard
to
replace
E
1527.
The
Federal
Government
has
been
mandated
to
reduce
internal
standards
and
incorporate
Industry
Documents
where
appropriate,
and
E1527
is
one
of
the
better
examples
of
a
valuable,
coherent
and
useful
Industry
Document.
I
suggest
that
EPA
adopt
the
document
and
issue
only
necessary
additional
guidance
which
may
not
be
currently
incorporated
in
it.
Even
then,
ASTM
has
often
added
"
Federal
Government"
Appendix
sections
to
existing
Standards,
therefore
EPA
may
find
it
more
cost
effective
in
pursuing
one
of
these
courses
of
action
over
development
of
a
new
Government
Document.

Response:
EPA's
purpose
for
developing
the
proposed
and
final
rule
was
not
to
replace
the
ASTM
standard.
Congress
directed
EPA,
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act,
to
develop
regulations
setting
federal
standards
for
the
conduct
of
all
appropriate
inquiries.
Prior
to
developing
the
proposed
rule,
EPA
considered
adopting
the
ASTM
E1527
standard
as
the
federal
regulatory
standard.
However,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
updated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International,
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.
748
Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
18
Excerpt
Text:
The
identification
of
voluntary
consensus
standards
that
are
applicable
to
and
compliant
with
today's
proposed
standards
and
practices
for
all
appropriate
inquiry.

I
think
EPA
was
in
error
concluding
that
the
alternative
of
adopting
ASTM
1527
would
be
inconsistent
with
applicable
law.
Even
if
you
conclude
that
the
2000
version
of
the
document
is
not
in
compliance,
the
ASTM
process
can
easily
adopt
modifications
to
the
current
practice
to
make
it
fully
compatible
with
AAI.
It
is
far
preferable
to
use
an
existing
and
widely
adopted
consensus
standard
than
to
embark
on
a
rule
making
process
that
reinvents
the
wheel.
I
recommend
adopting
an
appropriately
modified
standard
by
reference
and
making
whatever
minor
clarifications
(
by
federal
rulemaking)
that
are
required
to
address
any
items
not
fully
covered
by
the
ASTM
standard.
This
would
include
the
issues
related
to
continuing
responsibility,
sale
price,
or
controlled
substances
for
example.
Specifically
the
reasoning
EPA
concluded
that
the
existing
standard
did
not
comply
with
the
ten
specific
criteria
to
be
included
in
the
AAI
are
discussed
below:

The
ASTM
standards
do
not
provide
for
interviews
with
past
owners
operators
and
occupants
 
The
current
version
of
the
standard
does
not
specifically
speak
to
past
owners
but
clearly
would
imply
that
if
the
key
site
manager
was
a
past
owner
or
operator
that
they
would
be
the
preferred
interviewee.
The
revised
1527
document
currently
in
draft
stage
was
modified
to
more
specifically
identify
the
role
of
the
past
owners,
operators
and
occupants
in
the
interview
process.
The
basic
principle
is
still
to
find
the
person
that
knows
the
most
about
the
site.

Reviews
of
historical
sources, ,
to
determine
the
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.
The
ASTM
standard
is
more
restrictive
since
it
requires
going
back
to
at
least
1940
or
the
earliest
development.
Under
AAI
you
could
stop
in
1989
if
that
was
the
first
development.
The
concern
about
the
use
of
the
term
obvious
in
the
ASTM
standard
is
a
semantic
argument
of
dubious
merit.
Any
fair
reading
of
the
ASTM
standard
leads
to
the
conclusion
that
it
is
compliant
with
the
intent
of
the
legislation.

ASTM
does
not
mandate
visual
inspection
of
adjoining
properties.
This
is
another
largely
semantic
argument.
The
current
ASTM
standard
sections
8.4.1.3
and
8.1.4.4
speak
to
observations
of
the
current
and
past
uses
of
adjoining
properties
and
section
8.1.4.5
goes
on
to
speak
about
current
and
past
uses
in
the
surrounding
area.
All
three
sections
state
to
the
extent
they
are
visually
and
physically
observed.
Clearly
the
intent
is
to
visually
observe
not
only
the
adjacent
but
also
the
surrounding
properties.

The
relationship
of
the
purchase
price
to
the
value
of
the
property
The
ASTM
limited
this
requirement
to
actual
knowledge.
The
statute
does
not
make
this
restriction.
If
the
actual
language
is
objectionable
it
could
easily
be
dropped
from
the
ASTM
749
standard.
This
is
really
a
side
bar
issue
to
the
Phase
I,
not
unlike
the
new
requirements
for
continuing
obligations
related
to
corrective
action.
It
is
probably
better
handled
outside
the
Phase
1
process
since
it
the
EP
does
not
participate
by
providing
any
input
into
representations
regarding
the
purchase
price.
In
fact
the
EP
usually
is
not
told
the
purchase
price.

CERCLA
states
that
standards
for
all
appropriate
inquiry
shall
include:
cleanup
liens
against
the
facility
that
are
filed
under
Federal,
State
or
local
laws.
The
current
ASTM
version
in
Section
5.2
does
speak
only
to
liens
recorded
in
the
title
records.
The
document
as
a
whole
could
be
read
to
imply
that
liens
must
be
located
in
sources
other
than
the
titles.
In
Sections
9.8.1.9
there
is
broader
language
regarding
helpful
documents.
The
use
of
cleanup
liens
is
a
relatively
new
practice
and,
except
for
a
few
states
that
have
started
maintaining
registries,
they
are
most
often
found
in
title
records
or
the
owner's
files.

Response:
Prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
and
as
the
commenter
points
out,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
updated
the
A2000"
version
of
the
E1527
standard
to
address
EPA=
s
concerns
regarding
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.

EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International,
known
as
Standard
E1527­
05
and
entitled
"
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
Process."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
1
Other
Sections:
NEW
­
6.7
­
Negotiated
rulemaking
committee/
process
Excerpt
Text:
ASTM
E
1527­
00
is
a
consensus
Standard
developed
with
input
from
the
EPA,
lenders,
users
and
preparers
of
ESAs.
The
Pre­
Amble
states
that
the
ASTM
E
1527­
00
is
inconsistent
with
applicable
law .
Without
commenting
on
the
accuracy
of
the
EPA's
contention,
R&
W
notes
that
the
EPA
set
out
to
create
a
duplicative
standard
through
the
NRA/
FACA
process
instead
of
continuing
more
than
ten
years
of
cooperative
effort
with
the
ASTM
Committee
E­
50.
The
FACA
included
several
interest
groups
that
do
not
directly
use
or
participate
in
the
Phase
I
ESA/
AAI
process.
These
include
environmental
interest
groups,
the
environmental
justice
community,
residential
builders,
solid
waste
officials,
and
the
U.
S.
Conference
of
Mayors.
While
these
parties
have
essentially
no
direct
interest
in
the
AAI
process,
they
never­
the­
less
exerted
750
significant
influence
on
the
Proposed
Rules.
Therefore,
the
evolution
of
the
Proposed
Rules
was
fundamentally
flawed.
A
more
reasonable
solution
would
have
been
to
work
with
the
E­
50
Committee
to
make
adjustments
to
E­
1527­
00,
as
opposed
to
starting
over
with
a
flawed
FACA.
R&
W
requests
the
EPA
to
abandon
this
redundant
effort
and
work
with
E­
1527­
00
to
address
the
perceived
deficiencies
of
E­
1527­
00.

Response:
EPA
disagrees
with
the
commenter's
statement
that
members
of
the
FACA
Committee
that
negotiated
the
proposed
rulemaking
had
no
direct
interest
in
the
AAI
process.
Many
of
the
interest
groups
cited
by
the
commenter
represent
constituencies
who
often
purchase
potentially
contaminated
properties
or
live
near
contaminated
properties
and
therefore
will
be
directly
affected
by
a
federal
rulemaking
setting
standards
for
the
conduct
of
all
appropriate
inquiries.
The
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
that
the
membership
of
a
negotiated
rulemaking
committee
include
a
balanced
membership
of
affected
stakeholders.
All
members
of
the
negotiated
rulemaking
committee
that
negotiated
the
proposed
rulemaking
provided
valuable
insight
and
input
to
the
negotiations.

Prior
to
the
development
of
the
proposed
rule,
EPA
evaluated
the
ASTM
E1527­
2000
standard
against
the
criteria
for
the
federal
standard
provided
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
and
determined
that
the
ASTM
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
updated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
fiveyear
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
22
Other
Sections:
NEW
­
1.1.2
­
General
opposition
to
the
proposed
rule
Excerpt
Text:
In
summary,
R&
W
believes
that
the
NRA/
FACA
process
has
created
redundant,
expensive,
and
unworkable
Proposed
Rules.
The
EIA
ignores
increased
requirements
of
the
Proposed
Rules
and
their
associated
costs.
Therefore,
R&
W
requests
that
the
EPA
withdraw
the
Proposed
Rules
and
continue
its
historical
cooperation
with
ASTM
to
tweak
the
E
1527­
00
Standard
Practice,
if
necessary,
to
comply
with
the
legislative
requirements.
751
Response:
EPA
disagrees
with
the
commenter's
statement
that
the
proposed
rule
is
redundant,
expensive
and
unworkable.
The
proposed
rule
was
developed
by
a
committee
whose
membership
included
representatives
from
25
stakeholder
groups,
many
of
whom
are
familiar
with
the
ASTM
E1527
standard
and
have
significant
experience
working
with
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process.
The
economic
analysis
developed
for
the
proposed
rule
included
a
task­
by­
task
comparison
of
the
ASTM
standard
activities
and
the
activities
required
by
the
proposed
rule.
This
analysis
resulted
in
the
identification
of
all
incremental
activities
required
as
a
result
of
the
proposed
rule
(
those
that
are
over
and
above
the
activities
required
under
the
ASTM
standard).
The
analysis
also
included
an
estimate
of
the
incremental
costs
associated
with
the
additional
activities.
The
results
of
these
analyses
were
included,
in
detail,
in
the
Economic
Impact
Analysis
Document
included
in
the
docket
for
the
proposed
rule
and
showed
that
the
weighted
average
incremental
cost
for
complying
with
the
requirements
of
the
proposed
rule
was
relatively
low.

Although
EPA
is
not
withdrawing
the
proposed
rule,
EPA
supported
ASTM
International
in
its
efforts
to
review
and
update
its
E1527
standard.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
CBPA
Comment
Number:
0344
Excerpt
Number:
8
Excerpt
Text:
Moreover,
there
appears
to
be
no
reason
why
the
current
standard,
ASTM
El
527,
with
relatively
minor
additions
and
changes,
should
not
continue
as
the
standard
for
All
Appropriate
Inquiries.

Response:
See
response
to
comment
number
0320,
excerpt
22.
Since
publication
of
the
proposed
rule,
ASTM
International
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.
752
Commenter
Organization
Name:
Grand
Rapids
C
of
C
Comment
Number:
0345
Excerpt
Number:
1
Excerpt
Text:
For
many
years,
environmental
assessments
conforming
to
the
current
ASTM
standard
have
qualified
as
"
all
appropriate
inquiry"
under
CERCLA.
Businesses
and
environmental
consultants
have
become
familiar
with
the
standard.
There
is
no
indication
that
the
current
ASTM
standard
is
deficient
in
any
way.
Rather
than
tweaking
the
current
ASTM
standard
in
a
way
that
would
appear
to
increase
costs
to
businesses
and
create
uncertainty
in
real
estate
transactions,
the
Grand
Rapids
Area
Chamber
of
Commerce
requests
that
the
EPA
adopt
the
current
ASTM
standard
as
the
"
all
appropriate
inquiry"
standard
under
CERCLA.
At
the
very
least,
the
Grand
Rapids
Area
Chamber
of
Commerce
requests
that
the
EPA
consider
conforming
the
proposed
rule
to
the
current
ASTM
standard
in
the
areas
identified
below.

Response:
As
discussed
in
the
preamble
to
the
proposed
rule,
prior
to
the
development
of
the
proposed
rule,
EPA
evaluated
the
ASTM
E1527­
2000
standard
against
the
criteria
for
the
federal
standard
provided
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
and
determined
that
the
ASTM
standard
was
inconsistent
with
applicable
law.

Since
publication
of
the
proposed
rule,
ASTM
International
updated
its
E1527
Phase
I
Environmental
Site
Assessment
Process.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
9
Other
Sections:
NEW
­
3.8
­
Considering
the
relationship
of
the
purchase
price
to
the
value
of
the
property
Excerpt
Text:
­­
b.
Congress
intended
to
continue
the
ASTM
E1527,
§
5.4
"
actual
knowledge"
requirement,
not
impose
a
new
market
valuation
requirement.

EPA
states
that
the
new
market
valuation
requirement
of
§
312.29
is
required
by
the
Brownfields
Revitalization
Act
of
2001,
and
the
existing
ASTM
E1527
treatment
of
the
relationship
of
purchase
price
to
value
cannot
continue
because
"
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."
69
Fed.
Reg.
at
52575.
753
We
do
not
agree
with
EPA's
construction
of
the
statute.
The
"
statute's
criteria"
that
EPA
refers
to
is
"[
t]
he
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated."
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
VIII).
This
statutory
criteria
has
been
a
part
of
all
appropriate
inquiry
since
1986.
See
Pub.
L.
No.
99­
499,
100
Stat
1613
(
SARA
Amendments)
(
1986).
ASTM
E1527­
00,
§
5.4,
the
"
actual
knowledge"
requirement
regarding
the
relationship
of
the
purchase
price
to
the
value
of
the
property
if
the
property
was
not
contaminated,
was
developed
in
direct
response
to
the
statutory
criteria
cited
by
EPA.
See
ASTM
E1527­
93,
§
X1.2.4;
See
also
ASTM
E1527­
93,
§
5.4.

The
Brownfield
Revitalization
Act's
command
is
to
promulgate
a
regulation
"
to
carry
out
all
appropriate
inquiries"
in
accordance
with
"
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601(
B).
All
parties
concerned
with
this
rule,
including
EPA,
have
agreed
that
ASTM
E1527­
00
represents
current
good
commercial
and
customary
standards
and
practices.
Therefore,
by
definition
and
as
a
matter
of
law,
ASTM's
limitation
of
the
purchase
price
requirement
to
"
actual
knowledge"
does
satisfy
the
statutory
criteria.
Whereas
the
committee's
new
valuation
requirement
is
not
consistent
with
good
commercial
practice,
increases
uncertainty,
and
does
not
satisfy
the
statutory
criteria.

Upon
reconsideration,
we
hope
you
will
agree
with
us
and
will
retain
the
"
actual
knowledge"
standard
of
ASTM
E1527.

Response:
EPA
disagrees
with
the
commenter.
The
statute
does
not
limit
the
requirement
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
not
contaminated,
to
the
prospective
landowner's
or
the
environmental
professional's
"
actual
knowledge"
of
differences
between
the
purchase
price
and
the
value
of
the
property.
In
addition,
the
ASTM
E1527
standard
could
be
read
to
limit
the
requirement
to
the
environmental
professional's
actual
knowledge.
The
statute
places
the
burden
of
the
requirement
on
the
prospective
landowner.

Notwithstanding
any
differences
in
the
interpretation
of
the
statutory
requirement,
EPA
supports
ASTM
International's
efforts
to
update
the
E1527
standard
to
ensure
its
compliance
with
the
statute
and
the
federal
regulation.
The
ASTM
committee
tasked
with
updating
the
E1527
standard
revised
the
standard's
requirement
to
consider
the
relationship
between
the
purchase
price
and
the
value
of
the
property,
assuming
it
is
not
contaminated.
The
committee's
intent
is
to
ensure
that
the
standard
is
compliant
with
EPA's
interpretation
of
the
statute.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
754
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
13
Excerpt
Text:
V.
THE
NATIONAL
TECHNOLOGY
TRANSFERAND
ADVANCEMENT
ACT
REQUIRES
ADOPTION
OF
ASTM
E1527­
00
The
National
Technology
Transfer
and
Advancement
Act,
15
U.
S.
C.
§
272,
requires
EPA
to
use
existing
industry
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
EPA
has
recognized
that
it
must
show
that
ASTM
E1527­
00
is
inconsistent
with
applicable
law
or
must
adopt
it
as
the
standard
for
All
Appropriate
Inquiry.
69
Fed.
Reg.
At
52574.
EPA
provides
five
reasons
that
it
believes
make
ASTM
E1527
inconsistent
with
the
Brownfields
Revitalization
Act:

1)
ASTM
E1527
does
not
provide
for
interviews
of
past
owners,
operators,
and
occupants
of
a
facility.

2)
ASTM
E1527
limits
identification
of
past
uses
and
occupancies
to
"
obvious"
uses,
and
ASTM
E1527
provides
that
a
search
must
extend
back
at
least
to
1940
even
if
the
first
obvious
use
is
after
that
date.

3)
ASTM
E1527
does
not
require
visual
inspections
of
adjoining
properties.

4)
ASTM
E1527
limits
the
consideration
of
the
relationship
of
the
purchase
price
to
the
value
of
the
property
to
"
actual
knowledge"
that
the
price
was
significantly
below
market
value.

5)
ASTM
E1527
limits
the
scope
of
searches
for
recorded
environmental
cleanup
liens
to
recorded
land
title
records.

See
69
Fed.
Reg.
At
52574­
75.

We
believe
that
we
have
demonstrated
in
section
IV(
D)(
iv)
supra
that
reason
two
does
not
disqualify
ASTM
E1527
and
in
section
IV(
D)(
i)
that
reason
four
does
not
disqualify
it
either.
We
explain
below
why
we
believe
that
reasons
one,
three,
and
five
do
not
disqualify
ASTM
E1527­
00
and
we
therefore
urge
EPA
to
implement
the
National
Technology
Transfer
Act
by
adopting
ASTM
E1527­
00.
For
the
foregoing
reasons
we
request
that
EPA
withdraw
the
proposed
rule,
and
instead
propose
ASTM
E1527­
00
as
the
standard
for
All
Appropriate
Inquiry.
755
Response:
EPA
is
not
convinced
by
the
commenter's
arguments.
We
continue
to
assert
that
the
ASTM
E1527­
2000
standard
is
not
compliant
with
the
statutory
criteria
for
all
appropriate
inquiries.
As
discussed
in
the
preamble
to
the
proposed
rule,
prior
to
the
development
of
the
proposed
rule,
EPA
evaluated
the
ASTM
E1527­
2000
standard
against
the
criteria
for
the
federal
standard
provided
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
and
determined
that
the
ASTM
standard
was
inconsistent
with
applicable
law.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
International
standard
and
working
with
the
ASTM
E50
subcommittee
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
14
Excerpt
Text:
To
minimize
disruption
for
the
many
users
of
the
ASTM
environmental
assessment
standards
that
predate
the
Brownfields
law
and
this
proposed
rule,
we
strongly
urge
EPA
to
permit
the
use
of
ASTM
El
527
and
E
2247,
once
updated
to
conform
to
the
Brownfields
law,
as
acceptable
alternatives
to
the
AAI
rule.

Response:
Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
756
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
International
standard
and
supporting
the
ASTM
E50
subcommittee
in
its
efforts
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

EPA
is
aware
that
ASTM
International
plans
to
update
the
E2247
standard.
If
ASTM
International
updates
this
standard
to
comply
with
the
statutory
criteria
of
all
appropriate
inquiries
and
requests
that
EPA
recognize
the
standard
as
compliant
with
the
statute
and
the
federal
regulations
for
all
appropriate
inquiries,
EPA
will
respond
to
such
a
request
and
will
work
with
ASTM
International
as
necessary
and
appropriate
to
facilitate
any
necessary
revisions
to
the
standard.

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
4
Excerpt
Text:
The
National
Technology
Transfer
and
Advancement
Act,
15
U.
S.
C.
§
272,
requires
EPA
to
use
existing
industry
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
EPA
has
recognized
that
it
must
show
that
ASTM
E1527­
00
is
inconsistent
with
applicable
law
or
must
adopt
it
as
the
standard
for
All
Appropriate
Inquiry.
69
Fed.
Reg.
At
52574.

EPA
considered
using
ASTM
E1527­
00
but
decided
that
five
factors
prevented
its
adoption.
We
suggest
that
upon
closer
consideration,
these
factors
do
not
prevent
adoption
of
ASTM
E1527­
00
and
that
ASTM
E1527­
00
is
fully
consistent
with
the
Brownfields
Amendments.
These
five
factors
are
summarized
and
analyzed
below
in
turn.
See
69
Fed.
Reg.
At
52575.

1)
ASTM
E1527
limits
identification
of
past
uses
and
occupancies
to
"
obvious"
uses,
and
it
provides
that
a
search
must
extend
back
at
least
to
1940,
even
if
the
first
obvious
use
is
after
that
date.
EPA
concluded
that
the
Brownfields
Amendments
do
not
permit
these
limitations.

­­
Limits
for
Identification
of
Past
Uses
and
Occupancies
EPA
concludes
that
ASTM
E1527'
s
treatment
of
historical
sources
does
not
comply
with
the
Brownfields
Revitalization
Act
because
"
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."
69
Fed.
Reg.
at
52575.
EPA
reasons
that
"
Congress
did
not
qualify
the
review
to
obvious
uses,
and
did
not
give
an
alternate
date
regarding
the
review."
Id.
The
preamble
further
explains
that
the
environmental
professional
must
"
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
757
used
for
residential,
agricultural,
commercial,
industrial,
or
government
purposes."
Id.
at
52561.

We
think
that
EPA
puts
the
cart
before
the
horse,
and
that
its
reading
of
the
statute's
requirement
of
historical
research
to
include
non­
obvious
uses
centuries
back
in
time
is
not
workable.
The
Brownfields
Amendments
include
a
historical
source
criteria
that
provides
for
review
of
historical
sources
"
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed."
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
III).
EPA's
conclusion
that
the
statutory
"
previous
uses
and
occupancies"
criteria
cannot
be
interpreted
to
mean
"
obvious"
uses
and
occupancies
overlooks
that
this
criteria
is
to
be
implemented
by
EPA
in
accordance
with
"
customary
standards
and
practices,"
42
U.
S.
C.
§
9601
(
35)(
B)(
i)(
I),
and
that
by
EPA's
own
reckoning,
customary
practices
do
limit
the
identification
of
previous
uses
to
"
obvious"
uses.
To
require
identification
of
all
uses
and
occupancies
(
including
the
first
agricultural
use),
all
the
way
back
in
time
as
EPA's
overly
literal
reading
of
the
criteria
would,
would
require
a
nearly
unlimited
resource
for
historical
data
that
is
frequently
unavailable.
There
is
no
system
in
place
designed
to
capture
all
of
this
information.
Interpreting
the
Brownfields
Revitalization
Act
to
require
prospective
purchasers
to
spend
an
unlimited
amount
of
time
in
research
of
possibly
unavailable
source
material
in
order
to
obtain
liability
protection.
The
purpose
of
the
legislation
is
to
protect
purchasers
from
liability,
and
this
requirement
would
clearly
produce
a
result
that
could
not
have
been
intended
by
Congress.
ASTM's
alternative
date
of
1940
only
applies
if
it
is
earlier
than
the
first
developed
use
so
it
is
more
stringent
than
the
criteria
provided
by
Congress
and
thus
no
bar
to
adoption.

EPA
apparently
recognizes
the
problem
of
historical
searches
spanning
centuries,
because
the
proposed
rule
includes
the
qualification
"
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."
Proposed
§
312.24.
This
provision,
however,
contradicts
EPA's
reasoning
for
rejecting
ASTM
E1527
and
contradicts
the
explanation
of
this
section
provided
by
the
preamble.
It
also
does
not
address
the
problem
of
being
able
to
identify
all
uses
(
as
opposed
to
obvious
uses)
and
occupancies.
This
requirement,
too,
is
"
performance
based,"
so
any
records
of
non­
obvious
uses
earlier
than
the
date
actually
searched
to
by
the
environmental
professional
may
be
used
as
a
pretext
for
CERCLA
plaintiffs
seeking
to
pierce
liability
protection.

We
urge
EPA
to
reconsider,
and
we
offer
herein
suggestions
that
provide,
with
minimal
revision,
a
form
of
ASTM
E1527­
00
§
7.3
that
does
comply
with
the
Brownfields
Amendments.
We
also
believe
that
a
more
workable,
and
yet
responsible,
interpretation
of
the
"
historical
use"
requirement
of
the
statute
considered
in
the
administrative
record
of
this
rulemaking
is
ASTM
E1527'
s
provision
for
searches
back
to
the
property's
"
obvious
first
developed
use."
We
also
believe
that
the
checklist
approach
of
ASTM
E1527­
00
§
7.3,
which
provides
a
purchaser
with
clarity
about
when
he
has
reached
the
end
of
his
All
Appropriate
Inquiry
task
is
a
far
more
reasonable
approach
to
historical
use
considered
in
this
administrative
record:
"
Whatever
history
of
previous
uses
is
derived
from
checking
the
standard
historical
sources
specified
[
herein]
shall
be
deemed
sufficient
historical
use
information
to
comply
with
this
practice."
Id.
We
believe
that
an
open­
ended
"
performance
based"
rule
will
inevitably
lead
to
courtroom
second
guessing.
758
2)
EPA
concluded
that
ASTM
E1527
does
not
require
visual
inspections
of
adjoining
properties
and
therefore
does
not
comply
with
the
Brownfields
Amendments.

­­
Visual
Inspections
of
Adjoining
Properties
The
Criteria
provided
by
Congress
in
the
Brownfields
Amendments
include
"
Visual
inspections
of
the
facility
and
of
adjoining
properties."
ASTM
E1527­
00
§
8
"
Site
Reconnaissance"
provides
that
"
To
the
extent
that
current
uses
of
adjoining
properties
are
visually
and/
or
physically
observed
on
the
site
visit.
.
.
they
shall
be
identified
in
the
report,
and
current
uses
so
identified
shall
be
described."
ASTM
E1527­
00
§
8.4.1.3.
Visual
inspections
of
adjoining
properties
are,
therefore
included
in
ASTM
E1527.
In
the
proposed
rule,
EPA
allowed
visual
inspections
of
adjacent
properties
to
be
fulfilled
by
inspection
of
aerial
photographs.
Proposed
§
312.27(
a)(
2).
Review
of
aerial
photographs
showing
the
subject
property
and
adjacent
properties
is
already
customary
practice
under
ASTM
E1527­
00
§
7.3.4.1.
EPA
recognizes
that
on­
site
access
to
adjacent
properties
is
not
required
and
that
visual
inspection
from
the
subject
property
or
public
right
of
way
may
not
yield
an
entire
view
of
the
adjacent
property.
We
hope
that,
upon
reconsideration,
EPA
will
agree
that
existing
ASTM
practice
and
the
wording
of
ASTM
section
8.4.1.3
fulfills
the
statutory
criteria
of
including
visual
inspections
of
adjoining
properties.

If
EPA
wishes
to
proceed
with
greater
caution,
it
could
change
the
word
"
that"
to
"
practicable"
and
change
the
word
"
are"
to
the
words
"
shall
be"
in
the
above
quoted
sentence
from
ASTM
section
8.4.1.3.
We
believe
this
serves
the
intended
purpose
without
imposing
undue
burden
on
the
brownfield
redeveloper.

3)
EPA
concluded
that
ASTM
E1527
does
not
provide
for
interviews
of
past
owners,
operators,
and
occupants
of
a
facility.

­­
Interviews
with
Past
Owners,
Operators,
and
Occupants
Proposed
§
312.23
provides
that
the
"
inquiry
of
the
environmental
professional
must
include
interviewing
the
current
owner
and
occupant
of
the
subject
property,
and
further
that
"[
t]
he
inquiry
of
the
environmental
professional
should
include,
to
the
extent
necessary
to
achieve
the
objectives
and
performance
factors.
.
.
interviewing
one
or
more
of
the
following
[
including
past
owners,
occupants,
or
operators]."
The
new
rule,
then,
makes
a
distinction
between
interviewing
current
owners,
which
is
mandatory,
and
interviewing
past
owners,
which
is
discretionary
within
the
framework
of
the
new
rule.
The
environmental
professional
might
consult
sources
other
than
past
owners
to
obtain
similar
information
to
that
which
would
be
obtained
if
he
interviewed
them.
Before
moving
on
to
show
that
ASTM
E1527
also
provides
for
interviewing
past
owners
in
a
similar
discretionary
way
within
its
framework,
we
would
suggest
that
obtaining
useful
information
through
interviewing
past
owners
is
unlikely.
Past
owners
have
no
incentive
for
disclosing
that
hazardous
waste
was
handled,
stored,
or
disposed
of
while
they
owned
the
property.
To
do
so
would
expose
them
to
CERCLA
liability
as
a
responsible
party.
Current
owners,
on
the
other
hand,
presumably
are
interested
answering
because
they
want
to
sell
the
property.
Withholding
information
that
could
affect
the
value
of
the
property
in
the
context
of
a
sale
would
expose
them
to
contract
and
tort
liability,
so
there
is
reason
to
believe
that
their
759
answers
will
be
truthful.
It
should
be
noted
that
ASTM
E1527
includes
interviews
with
past
owners
within
the
meaning
of
the
Brownfields
Amendments.

ASTM
E1527­
00
§
3.3.25
defines
"
other
historical
sources"
to
include
"
any
source
or
sources.
.
.
that
are
credible
to
a
reasonable
person
and
that
identify
past
uses
of
the
property."
"
Any
source"
includes
interviewing
past
owners.
The
purpose
of
consulting
historical
sources
is
to
identify
"
recognized
environmental
conditions."
ASTM
E1527­
00
§
7.3.1,
and
the
environmental
professional
may
consult
"
other
historical
sources"
to
satisfy
this
requirement.
ASTM
E1527­
00
§
7.3.2.3.
Such
sources
include
"
personal
knowledge"
of
individuals.
ASTM
E1527­
00
§
3.3.25.
ASTM
E1527
therefore
already
includes
interviewing
past
owners
as
discretionary
within
its
framework
and
complies
with
the
statutory
criteria
to
"
include"
interviews
with
"
past
and
present
owners."
42
U.
S.
C.
§
9601
(
35)(
B)(
iii).

If
EPA's
mandate
was
to
"
clarify
the
obligations"
of
prospective
purchasers,
we
recommend
adopting
ASTM
E1527­
00
verbatim.
Since
Congress
did
specify
past
owners,
EPA
could
add
the
clarifying
words
"
past
or
present"
before
the
words
"
property
owner"
in
the
last
sentence
of
ASTM
E1527
§
3.3.25
to
provide
sufficiently
for
this
concern.

4)
ASTM
E1527
limits
the
consideration
of
the
relationship
of
the
purchase
price
to
the
value
of
the
property
to
"
actual
knowledge"
that
the
price
was
significantly
below
market
value.
EPA
concluded
that
this
does
not
comply
with
the
Brownfield
Amendments.

­­
Relationship
of
Purchase
Price
to
Value
of
Property
Proposed
§
312.29
requires
that
purchasers
"
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."
With
this
requirement
in
place,
failure
to
commission
a
valuation
analysis
of
the
property
would
expose
prospective
purchasers
to
subsequent
claims
that
the
purchase
price
was
below
market
and
should
have
alerted
the
purchaser
to
the
presence
of
contamination.
Although
the
preamble
states
at
page
52567
that
a
formal
appraisal
is
not
necessary,
it
states
that
the
intent
is
to
determine
if
the
"
price
paid
for
the
property
is
reflective
of
its
market
value,"
and
may
be
accomplished
by
retaining
a
"
real
estate
expert"
to
conduct
a
"
comparability
analysis."
Given
the
potential
exposure
to
second
guessing,
prudent
purchasers
will
probably
commission
appraisals,
and
in
any
event,
it
is
not
likely
that
the
non­
appraisal
market
valuation
envisioned
by
EPA
will
differ
much
in
scope
or
cost
from
a
formal
appraisal.
Therefore,
the
cost
of
an
appraisal
should
be
included
in
the
additional
costs
associated
with
the
rule
if
this
section
is
to
be
retained.

Prices
of
commercial
real
estate
fluctuate
for
any
number
of
reasons
and
we
think
purchasers
will
be
highly
resistant
to
any
requirement
that
forces
them
to
explain
why
a
particular
price
was
appropriate
in
a
particular
transaction.
It
is
also
often
difficult
to
explain
significant
inconsistencies
in
the
sale
prices
of
apparently
comparable
properties
that
have
no
environmental
conditions
of
concern.
Every
source
we
have
consulted
to
date
has
agreed
that
this
valuation
requirement
is
entirely
new
to
environmental
site
assessment
and
is
not
consistent
with
existing
generally
accepted
good
commercial
practice.
We
conducted
dozens
of
conversations
with
760
market
participants
and
reviewed
numerous
published
sources
that
have
been
disseminated
in
response
to
this
proposed
rule.
See,
e.
g.,
Latham
&
Watkins,
Client
Alert
All
Appropriate
Inquiry
("
Client
Alert"),
October
4,
2004
at
3,
available
at
http://
www.
lw.
com
(
noting
that
the
proposed
AAI
rule
will
force
purchasers
to
conduct
a
"
much
more
extensive
investigation,
including
for
the
first
time
a
property
valuation
analysis").
We
hope
you
will
reconsider
the
extent
to
which
this
new
valuation
requirement
is
inconsistent
with
customary
practice,
imposes
substantial
costs,
and
may
cause
substantial
impediment
to
the
successful
completion
of
market
transactions.

On
the
other
hand,
we
think
ASTM
E1527­
00
does
comply
with
the
Brownfields
Amendments.
The
relevant
statutory
criteria
is
"[
t]
he
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated."
42
U.
S.
C.
§
9601(
iii)(
VIII).
This
statutory
criteria
has
been
a
part
of
All
Appropriate
Inquiry
since
1986.
See
Pub.
L.
No.
99­
499,
100
Stat
613
(
SARA
Amendments)
(
1986).
ASTM
E1527­
00,
§
5.4,
the
"
actual
knowledge"
requirement
regarding
the
relationship
of
the
purchase
price
to
the
value
of
the
property
if
the
property
was
not
contaminated,
was
developed
in
direct
response
to
the
statutory
criteria
cited
by
EPA.
See
ASTM
E1527­
00,
§
X.
1.2.4.

The
Brownfield
Amendments'
mandate
is
to
promulgate
a
regulation
"
to
carry
out
all
appropriate
inquiries"
in
accordance
with
"
good
commercial
and
customary
standards
and
practices."
42
U.
S.
C.
§
9601(
B).
All
parties
concerned
with
this
rule,
including
EPA,
have
agreed
that
ASTM
E1527­
00
represents
current
good
commercial
and
customary
standards
and
practices.
Therefore,
by
definition
and
as
a
matter
of
law,
ASTM's
limitation
of
the
purchase
price
requirement
to
"
actual
knowledge"
satisfies
the
statutory
criteria.
In
light
of
the
arguments
presented
here,
we
hope
you
will
reconsider
and
agree
with
us
that
ASTM
E1527
does
satisfy
the
"
relationship
of
the
purchase
price
to
the
value"
requirement.

5)
ASTM
E1527
limits
the
scope
of
searches
for
recorded
environmental
cleanup
liens
to
recorded
land
title
records.
EPA
concluded
that
this
limitation
does
not
comply
with
the
Brownfields
Amendments.

­­
Recorded
Environmental
Cleanup
Liens
The
Brownfields
Amendments
provide
that
"
searches
for
recorded
environmental
cleanup
liens"
shall
be
one
of
the
criteria
used
in
promulgating
the
All
Appropriate
Inquiry
regulation.
42
U.
S.
C.
§
9601(
35)(
B)(
iii)(
IV).
The
language
of
the
statute
is
very
clear:
recorded
liens
are
to
be
searched.
California
and
all
other
states
have
recording
acts
that
specify
a
centralized
location
(
usually
one
in
each
county
the
county
recorder's
office)
where
instruments
may
be
validly
recorded.

ASTM
E1527­
00
requires
searches
for
liens
recorded
in
the
"
place
where
land
title
records
are,
by
law
or
custom,
recorded
for
the
local
jurisdiction
in
which
the
property
is
located."
ASTM
E1527­
00
§
7.3.4.
This
makes
sense
because,
under
state
law
it
is
the
only
place
where
liens
can
be
validly
recorded.
761
EPA
argues
that
ASTM
E1527
may
not
be
used
because
"
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."
69
Fed.
Reg.
at
52575.
However,
this
is
not
what
the
statue
requires
it
says
recorded
liens.
Congress
would
be
unlikely
to
place
the
limiting
term
"
recorded"
in
front
of
"
liens"
if
it
meant
to
specify
liens
that
were
not
recorded
but
were
somehow
otherwise
"
filed."

What
constitutes
a
recorded
lien
is
a
matter
of
state
law.
There
is
no
indication
that
Congress
meant
to
depart
from
the
long
established
meaning
of
"
recorded."
It
would
also
disrupt
longstanding
and
well
established
industry
practice:
if
you
want
your
lien
to
achieve
priority
and
provide
record
notice,
it
is
required
to
record
in
the
county
recorders
office.
EPA's
proposed
new
requirement
would
upset
a
centralized
and
very
reliable
system
for
notice
of
liens.
We
do
not
believe
that
Congress
intended
this
result.

Upon
consideration
of
the
information
presented
here,
we
hope
you
will
determine
that
in
fact,
ASTM
E1527­
00
satisfies
the
statutory
criteria
for
cleanup
liens
and
the
proposed
rule
does
not.

Response:
It
is
the
Agency=
s
intent
to
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
compliant
with
the
federal
regulations.
However,
as
explained
in
the
preamble
to
the
proposed
rule,
EPA
determined
that
the
2000
version
of
ASTM
International's
E1527
Phase
I
Environmental
Site
Process
is
not
compliant
with
the
statutory
criteria
for
all
appropriate
inquiries.
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
ANTTAA@),
Public
Law
No.
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
agencies
to
use
technical
standards
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies,
unless
their
use
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Given
that
EPA
determined
that
the
ASTM
E1527­
2000
standard
is
inconsistent
with
applicable
law,
use
of
the
ASTM
standard
in
its
current
form
is
not
required
by
the
NTTAA.

EPA
is
not
convinced
by
the
commenter's
arguments
regarding
the
consistency
of
the
ASTM
standard
with
the
statutory
criteria.
Particularly
in
the
case
of
the
need
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
it
were
not
contaminated,
the
mere
fact
that
the
commenter
believes
that
ASTM
included
a
related
activity
in
the
E1527
standard
in
response
to
the
1986
amendments
to
CERCLA,
does
not
render
the
standard
compliant
with
the
statute.
Also,
in
the
case
of
environmental
cleanup
liens,
EPA
disagrees
with
the
commenter's
statement
that
land
title
records
are
"
under
state
law 
the
only
place
where
liens
can
be
validly
recorded."
Such
liens
may
be
included
as
part
of
the
chain
of
title
documents
or
may
be
recorded
in
some
other
manner
or
format
by
state
or
local
government
agencies.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
762
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
standard
and
supporting
the
ASTM
E50
subcommittee
in
its
efforts
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

With
regard
to
the
commenter's
suggestion
that
the
final
rule
should
adopt
a
"
checklist
approach,"
(
or
an
approach
not
based
upon
overall
objectives
and
performance
factors),
the
commenter
may
have
misunderstood
the
statutory
requirements
that
must
be
met
to
obtain
protection
from
CERCLA
liability.
The
commenter
may
have
incorrectly
assumed
that
the
completion
of
the
all
appropriate
inquiries
investigation
is
all
that
is
required
to
obtain
liability
protection.
The
conduct
of
all
appropriate
inquiries
is
only
one
requirement
for
obtaining
the
CERCLA
liability
protections.
Prospective
landowners
must
conduct
all
appropriate
inquiries
prior
to
acquiring
a
property
to
qualify
for
protection
from
CERCLA
liability
as
an
innocent
landowner,
bona
fide
prospective
purchaser
or
contiguous
landowner.
However,
once
a
property
is
acquired,
the
property
owner
must
comply
with
all
of
the
other
statutory
criteria
necessary
to
qualify
for
the
liability
protections.
In
particular,
landowners
must
undertake
Areasonable
steps@
to
address
Aon­
going
releases.@
Therefore,
the
final
rule=
s
objective
of
identifying
conditions
indicative
of
releases
and
threatened
releases
of
hazardous
substances
on,
at,
in,
or
to
a
property
links
appropriately
with
the
statutory
criteria
requiring
the
landowner
to
address
such
releases
to
qualify
for
the
liability
protections.

Commenter
Organization
Name:
CCLR
Comment
Number:
0415
Excerpt
Number:
6
Excerpt
Text:
We
urge
you
to
seriously
reconsider
the
proposed
rule.
Fortunately,
a
solution
is
easily
available,
as
we
have
demonstrated
through
proposing
the
minor
revisions
to
the
ASTM
E1527.
We
hope
you
will
conclude
that
ASTM
E1527­
00
should
be
adopted
as
the
standard
for
All
Appropriate
Inquiry.

Response:
As
stated
above,
although
EPA
determined
that
the
ASTM
E1527­
2000
standard
is
not
fully
compliant
with
the
statutory
criteria
for
all
appropriate
inquiries,
ASTM
International
is
revising
the
standard
to
address
EPA's
concerns.
EPA
supports
the
efforts
of
ASTM
International's
E50
763
committee
to
revise
the
E1527
standard
to
ensure
that
it
will
be
compliant
with
the
statutory
criteria
and
the
final
rule.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
standard
and
supporting
the
ASTM
E50
subcommittee
in
its
efforts
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

Commenter
Organization
Name:
Dismukes,
James
Comment
Number:
0416
Excerpt
Number:
8
Excerpt
Text:
The
correct
name
of
the
ASTM
Standard
is
E
1527­
00,
not
1527­
2000.

9.
Save
for
the
definition
of
Environmental
Professional,
the
ASTM
Standard
appears
to
meet
or
exceed
the
requirements
of
All
Appropriate
Inquiries.
By
stating
'
the
all
appropriate
inquiries
regulation
potentially
will
apply
to
most
commercial
property
transactions',
the
proposed
rule
admits
that
the
commercial
real
estate
market
will
adopt
the
AAI.
The
ASTM
Standard
has
been
serving
this
market
adequately
since
1993
in
providing
the
standard
for
good
customary
and
commercial
practice.
To
impart
the
AAI
onto
this
market
will
result
in
an
unnecessary
cost
increase
and
confusion
in
all
areas
of
the
market.
I
urge
the
EPA
to
work
with
the
ASTM
in
adopting
a
modified
ASTM
Standard
E
1527
and
not
to
have
two
'
standards'
in
the
market
place.

Response:
EPA
appreciates
the
commenter's
concerns
regarding
the
widespread
use
of
ASTM
International's
E1527­
2000
standard
and
the
potential
for
confusion
if
a
compliant
ASTM
standard
is
not
available
for
use
in
conducting
all
appropriate
inquiries
once
the
federal
standards
are
finalized.
In
fact,
EPA
supports
the
efforts
of
ASTM
International
and
the
ASTM
E50
committee
in
their
efforts
to
update
the
E1527
standard
to
ensure
that
the
revised
standard
is
compliant
with
the
statutory
criteria
and
the
provisions
of
the
final
rule.
764
Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
standard
and
working
with
the
ASTM
E50
subcommittee
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0427
Excerpt
Number:
2
Excerpt
Text:
I
think
there
is
nothing
wrong
with
the
ASTM
1527
Standard,
perhaps
obvious
data
like
LEINS
and
CONTROLS
could
just
be
added
to
what
has
been
the
standard
due
diligence
for
years?

Response:
Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
standard
and
working
with
the
ASTM
E50
subcommittee
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

Commenter
Organization
Name:
Westward
Environmental
Comment
Number:
0429
Excerpt
Number:
7
765
Excerpt
Text:
Our
concern
is
related
to
the
ability
and
willingness
of
the
client
to
absorb
the
additional
fees
necessary
to
comply
with
the
requirements
in
the
proposed
rule
and
the
need
to
adopt
this
rule
in
lieu
of
the
ASTM
E
1527
standard
which
we
believe
adequately
addresses
the
client's
needs
to
satisfy
the
All
Appropriate
Inquiries
needed
for
the
innocent
owner
defense.

Response:
The
economic
analysis
developed
for
the
proposed
rule
included
a
task­
by­
task
comparison
of
the
ASTM
standard
activities
and
the
activities
required
by
the
proposed
rule.
This
analysis
resulted
in
the
identification
of
all
incremental
activities
required
as
a
result
of
the
proposed
rule
(
those
that
are
over
and
above
the
activities
required
under
the
ASTM
standard).
The
analysis
also
included
an
estimate
of
the
incremental
costs
associated
with
the
additional
activities.
The
results
of
these
analyses
were
included,
in
detail,
in
the
EIA
Document
included
in
the
docket
for
the
proposed
rule
and
showed
that
the
weighted
average
incremental
cost
for
complying
with
the
requirements
of
the
proposed
rule
was
relatively
low.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
West
Berkeley
Association
Comment
Number:
0430
Excerpt
Number:
4
Excerpt
Text:
Our
members,
from
time
to
time,
will
engage
in
commercial
real
estate
transactions
going
forward.
We
would
prefer
that
the
standard
for
future
transactions
also
remain
as
ASTM
E1527­
00.
We
find
the
new
rule
to
be
unclear
and
are
uncertain
whether
it
will
provide
liability
protection
in
future
transactions.
We
also
believe
it
will
impose
several
thousand
dollars
in
additional
costs
for
future
transactions.
As
small
entities,
our
members
would
very
much
like
to
avoid
these
additional
costs
as
they
affect
small
property
owners
engaging
in
small
transactions
in
a
disproportionate
way.

Response:
The
preambles
to
the
proposed
and
final
rule
explain
in
detail
the
statutory
requirements
necessary
to
obtain
protection
from
CERCLA
liability.
Prospective
landowners
must
conduct
all
766
appropriate
inquiries
prior
to
purchasing
a
property.
Upon
the
effective
date
of
the
final
rule,
all
appropriate
inquiries
must
be
conducted
in
compliance
with
the
provisions
of
the
final
rule
to
obtain
protection
from
CERCLA
liability.
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
liability
protections.

The
economic
analysis
developed
for
the
proposed
rule
included
a
task­
by­
task
comparison
of
the
ASTM
standard
activities
and
the
activities
required
by
the
proposed
rule.
This
analysis
resulted
in
the
identification
of
all
incremental
activities
required
as
a
result
of
the
proposed
rule
(
those
that
are
over
and
above
the
activities
required
under
the
ASTM
standard).
The
analysis
also
included
an
estimate
of
the
incremental
costs
associated
with
the
additional
activities.
The
results
of
these
analyses
were
included,
in
detail,
in
the
Economic
Impact
Analysis
Document
included
in
the
docket
for
the
proposed
rule
and
showed
that
the
weighted
average
incremental
cost
for
complying
with
the
requirements
of
the
proposed
rule
was
relatively
low.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.
767
6.2
The
Agency
Should
Clarify
How
the
Final
AAI
Rule
Will
Relate
to
the
ASTM
Standard
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
12
Excerpt
Text:
Once
the
AAI
final
rule
is
passed
and
is
into
effect....
how
does
that
relate
to
the
ASTM
standard...
which
has
precedence?
What
bearing
will
ASTM
have
on
ESA
preparation?
Will
EPA's
AAI
be
the
referenced
guidance
document
for
proposals
and
preparation,
or
will
ASTM
revise
their
format
to
meet
the
AAI;
and
then
the
ASTM
still
remain
the
guidance
document
by
which
all
ESAs
are
typically
prepared?

4.
What
happened
to
the
ASTM
non­
scope
business
risk
items?
What
or
how
does
the
AAI
require
addressing
those
items
such
as
archaeological
finds,
radon,
indoor
air
quality(
mold),
wetlands,
etc?

Response:
With
regard
to
the
use
of
the
ASTM
E1527­
2000
standard,
prior
to
the
development
of
the
proposed
rule,
EPA
determined
that
the
ASTM
E1527­
2000
standard
was
inconsistent
with
applicable
law.
Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA
is
not
aware
of
the
status
of
ASTM
International's
non­
scope
business
risk
guidance.
The
commenter
should
contact
ASTM
International
directly
or
check
ASTM
International's
website
at
www.
astm.
org.

Commenter
Organization
Name:
Worlund,
John
Comment
Number:
0256
Excerpt
Number:
1
Excerpt
Text:
The
proposed
requirements
for
an
all
appropriate
inquiry
report,
including
the
signature
requirements
for
the
all
appropriate
inquires
report.
768
The
proposed
requirements
are
generally
consistent
with
the
current
ASTM
practice.
I
do
not
feel
they
are
self
implementing
since
they
lack
the
detail
contained
in
the
ASTM
1527
Standard
Practice.
Making
reference
to
the
applicable
industry
standard,
which
is
ASTM
1527,
could
easily
solve
this.

Response:
EPA
can
only
reference
an
industry
standard
in
the
regulation,
if
the
Agency
determines
that
the
standard
is
not
inconsistent
with
the
statute
and
the
regulation.
EPA
determined
previously
that
the
ASTM
E1527­
2000
standard
is
not
consistent
with
the
statutory
criteria
for
all
appropriate
inquiries.

However,
since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
ASTM
E50
Committee
Comment
Number:
0261
Excerpt
Number:
1
Excerpt
Text:
In
particular,
we
offer
comments
on
appropriate
references
in
the
final
rule
to
ASTM
standards
that
we
believe
will
satisfy
EPA's
criteria
of
being
"
applicable
and
compliant
voluntary
consensus
standards."
69
Fed.
Reg.
52542,
52555,
Section
E
References.

As
you
know,
the
E50.02
Task
Group
on
E1527,
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process,
has
been
working
to
update
E1527­
00
so
that
it
is
consistent
with
the
Brownfields
Amendments
to
CERCLA
as
well
as
seeking
to
conform
the
standard
to
the
proposed
EPA
rule.
The
task
group
is
expecting
to
initiate
a
revision
ballot
in
the
near
future
and
is
working
toward
having
the
new
version
approved
once
EPA
has
determined
what
changes,
if
any,
to
make
to
the
proposed
rule
in
light
of
public
comments.
ASTM
and
the
E50
Executive
Subcommittee
strongly
encourages
the
EPA
to
reference
the
updated
E1527
standard
following
its
approval
as
an
acceptable
alternative
standard
for
conducting
all
appropriate
inquiries.

As
EPA
has
correctly
noted,
the
National
Technology
Transfer
and
Advancement
Act
(
NTTAA),
769
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities,
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
See
69
Fed.
Reg.
at
52574.
So
long
as
the
updated
E1527
complies
with
the
new
statutory
requirements
and
is
generally
consistent
with
the
final
All
Appropriate
Inquiry
Rule,
there
would
be
no
basis
for
EPA
to
conclude
that
referencing
the
E1527
standard
"
would
be
inconsistent
with
applicable
law
or
otherwise
impractical."
We
therefore
urge
the
EPA
to
reference
ASTM
E1527
in
the
final
rule.

In
addition,
the
E50.02
Task
Group
responsible
for
E2247­
02,
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process
for
Forestland
or
Rural
Property
has
closely
monitored
the
activities
of
the
E1527
Task
Group
and
intends
to
incorporate
the
appropriate
revisions
into
the
E2247
standard
so
that
it
will
comply
with
the
new
statutory
requirements
and
be
consistent
with
the
final
All
Appropriate
Inquiries
Rule.
We
therefore
urge
the
EPA
to
reference
ASTM
E2247
in
the
final
rule.

Response:
As
the
commenter
points
out,
since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
fiveyear
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA
welcomes
ASTM
International,
as
well
as
any
other
standards
developing
organization,
to
submit
additional
applicable
voluntary
consensus
standards
to
the
Agency
for
review,
including
ASTM's
E2247­
02,
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process
for
Forestland
or
Rural
Property.
EPA
will
review
ASTM
International=
s
revised
standard
against
the
statutory
criteria
and
the
requirements
included
in
the
final
rule.
If
EPA
determines
that
an
updated
ASTM
E2247
standard
is
consistent
with
the
statutory
criteria
(
CERCLA
'
101(
35)(
B)(
iii))
for
all
appropriate
inquiries
and
not
inconsistent
with
the
provisions
of
the
final
rule
(
or
otherwise
impractical),
then
EPA
will
propose
to
amend
the
final
rule
and
incorporate
by
reference
the
updated
standard.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
12
Excerpt
Text:
The
proposed
rule
is
silent
as
to
how
a
promulgation
date
would
be
handled.
770
Comment:
ENSR
recommends
that
a
promulgation
date
90
days
from
rule
publication
be
used
to
allow
a
grace
period
between
publication
of
the
final
rule
and
its
final
implementation.
Alternatively,
a
grace
period
of
90
days
from
final
rule
publication
for
reports
meeting
ASTM
1527­
00
(
the
current
default
standard)
could
be
allowed.
Either
would
allow
for
studies
that
are
underway
under
existing
standards
to
be
completed
and
considered
to
meet
AAI,
without
having
to
revise
them
to
meet
the
new
standards
in
mid­
course,
resulting
in
project
delays,
and
cost
changes
to
the
client.

Response:
The
effective
date
of
the
final
rule
is
one
year
following
the
date
of
publication
of
the
rule
in
the
Federal
Register.
This
is
much
longer
than
the
90
days
proposed
by
the
commenter.
EPA
believes
that
allowing
for
a
year
between
publication
of
the
final
rule
and
the
effective
date
will
provide
adequate
public
notice
and
"
would
allow
for
studies
that
are
underway
under
existing
standards
to
be
completed
and
considered
to
meet
AAI,
without
having
to
revise
them
to
meet
the
new
standards
in
mid­
course,
resulting
in
project
delays,
and
cost
changes
to
the
client."

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
3
Excerpt
Text:
ASTM
E1527­
2000
STANDARD
VS.
PROPOSED
AAI
STANDARDS1)

The
proposed
standards
emphasize
that
the
current
ASTM
E1527­
2000
standard
does
not
comply
with
the
Brownfields
Amendments.
However,
the
rule
preamble
does
not
indicate
why
E1527­
2000
doesn't
meet
the
new
requirements
of
the
Brownfields
Amendments
or
identify
specific
citations
in
the
Amendments
to
explain
why
E1527­
2000
would
not
comply.
FAA
would
like
EPA
to
include
more
discussion
of
why
E1527­
2000
was
not
adopted
outright,
to
identify
and
discuss
the
clauses
in
the
Brownfields
Amendments
that
E1527­
2000
does
not
meet,
and
to
explain
why
it
doesn't
meet
them.

Response:
The
preamble
to
the
proposed
rule
(
at
69
FR
52574
 
75)
explains
the
reasons
for
EPA's
determination
that
the
ASTM
E1527­
2000
standard
is
not
consistent
with
the
CERCLA
statute,
as
amended
by
the
Brownfields
Amendments.
As
part
of
the
explanation,
EPA
provides
specific
citations
to
CERCLA.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
2
Excerpt
Text:
As
EPA
knows,
the
prevalent
environmental
site
assessment
standard
in
use
for
the
past
decade
is
the
ASTM
Phase
I
standard
known
as
E1527[
Footnote:
The
standard
is
officially
known
as
the
771
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process.

Congress
recognized
its
wide
acceptance
in
the
marketplace
by
designating
the
1997
version
of
this
standard
as
the
interim
assessment
standard
to
achieve
CERCLA
liability
protections
for
property
acquisitions
from
May
31,
1997,
until
EPA's
AAI
regulation
becomes
effective.
CERCLA
§
101(
35)(
B)(
iv)(
II);
see
69
Fed.
Reg.
at
52545.
Since
the
1997
version
of
El
527
had
been
superseded
by
the
2000
version
by
the
time
Congress
passed
the
Brownfields
law,
EPA
wisely
clarified
what
appeared
to
be
a
congressional
scrivener's
error
by
recognizing
both
versions
of
E1527
as
acceptable
interim
standards.
68
Fed.
Reg.
24888
(
May
9,
2003).

US
WAG
members,
like
most
of
the
regulated
community
segment
that
engages
in
site
assessments
for
the
purpose
of
achieving
CERCLA
liability
protections,
have
successfully
used
ASTM
El
527
for
many
years,
are
thoroughly
familiar
with
its
provisions,
and
in
the
spirit
of
"
if
it
isn't
broke,
don't
fix
it",
believe
that
EPA
should
promulgate
an
AAI
rule
that
hews
as
closely
to
the
El527
standards
as
is
legally
permissible.
We
acknowledge
that
the
Brownfields
law
prescribes
requirements
that
are
not
in
the
2000
version
of
El
527.
However,
as
we
explain
later
in
these
comments,
we
believe
EPA
has
overstated
the
extent
to
which
the
ASTM
standard
falls
short
of
the
new
statutory
requirements.
See
69
Fed.
Reg.
at
52574­
75.

Nevertheless,
US
WAG
is
pleased
that
EPA
has
actively
participated
in
the
ASTM
task
group
process
by
which
ASTM
expects
to
update
the
El
527
standard
and
to
bring
it
into
conformity
with
the
Brownfields
law.
Similarly,
ASTM
is
in
the
process
of
updating
its
Phase
I
standard
for
forestland
and
rural
property,
known
as
ASTM
E2247­
02
[
Footnote:
This
standard
is
officially
known
as
Standard
Practice
for
Environmental
Site
Assessment:
Phase
I
Environmental
Site
Assessment
Process
for
Forestland
or
Rural
Property.].
We
strongly
urge
EPA
upon
completion
of
this
process
to
reference
the
amended
El
527
and
E2247
standards
in
the
final
AAI
rule
as
acceptable
alternatives
to
the
EPA
rule
for
conducting
AAI
to
qualify
for
CERCLA
liability
protections
[
Footnote:
A
recent
example
of
EPA
regulations
in
which
the
Agency
encouraged
the
regulated
community
to
look
to
industry
standards
in
implementing
the
Agency's
program
is
found
in
the
2002
amendments
to
the
Oil
Pollution
Prevention
and
Response
Regulations,
popularly
known
as
the
SPCC
rules.
See
67
Fed.
Reg.
47042,
47057­
58
(
July
17,
2002).].

Response:
As
the
commenter
points
out,
since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
fiveyear
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
772
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA
welcomes
ASTM
International,
as
well
as
any
other
standards
developing
organization,
to
submit
additional
applicable
voluntary
consensus
standards
to
the
Agency
for
review,
including
ASTM
International's
E2247­
02,
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process
for
Forestland
or
Rural
Property.
EPA
will
review
ASTM
International=
s
revised
standard
against
the
statutory
criteria
and
the
requirements
included
in
the
final
rule.
If
EPA
determines
that
an
updated
ASTM
E2247
standard
is
compliant
with
the
statutory
criteria
(
CERCLA
'
101(
35)(
B)(
iii))
for
all
appropriate
inquiries
and
not
inconsistent
with
the
provisions
of
the
final
rule
(
or
otherwise
impractical),
then
EPA
will
propose
to
amend
the
final
rule
and
incorporate
by
reference
the
updated
standard.

Commenter
Organization
Name:
Thornhill,
James
Comment
Number:
0414
Excerpt
Number:
4
Excerpt
Text:
The
effective
date
of
the
regulations
should
not
adversely
impact
binding
contracts
for
the
purchase
of
real
property
or
with
environmental
consultants
to
perform
ASTM
Standard
Phase
I's
during
the
period
such
Phase
I's
are
valid.
The
implementation
of
the
regulation
could
have
an
adverse
impact
on
current
transactions
if
the
effective
date
of
the
regulations
is
not
sufficiently
delayed
after
the
final
regulations
are
published
or
a
savings
provision
is
not
included.
Currently
purchasers
used
ASTM
Standard
Practice
E­
1527­
97
or
E
1527­
00
to
meet
the
all
appropriate
inquires
requirement
for
defenses
under
CERCLA.
Both
of
standards
provide
for
a
Phase
I
rendered
following
such
standards
to
be
valid
for
180
days.
Anyone
who
has
contracted
for
or
received
an
ASTM
standard
Phase
I
prior
to
the
publication
date
of
the
final
rule
should
be
permitted
to
close
on
the
purchase
of
a
property
during
the
time
period
that
the
Phase
I
remains
valid
in
accordance
with
such
standard.
If
EPA
does
not
provide
a
savings
provision
in
this
manner,
it
could
have
a
dramatic
impact
on
ongoing
transactions.
For
example,
assume
that
the
final
rule
has
not
yet
been
published
and
a
purchaser
enters
into
a
contract
for
purchase
of
a
property
on
February
1,
2005
with
a
60
day
due
diligence
and
a
closing
date
of
September
1
to
allow
for
rezoning.
The
purchaser
may
obtain
an
ASTM
Standard
Phase
I
dated
April
1,
2005,
which
would
still
be
valid
following
the
standard
for
a
September
1st
closing.
If
the
final
rule
is
published
on
April
15,
2005
with
an
effective
date
of
July
15th,
it
would
be
well
before
the
scheduled
closing
date
of
September
1st
and
after
the
purchaser's
due
diligence
period
has
passed
under
the
contract.
In
such
case,
the
purchaser
would
have
paid
for
the
ASTM
standard
Phase
I
and
have
no
rights
to
perform
the
additional
necessary
due
diligence
to
meet
the
all
appropriate
inquiries
standard.
There
can
also
be
circumstances
where
a
purchaser
has
entered
into
a
contract
with
a
Consultant
to
complete
an
ASTM
standard
Phase
I
on
one
or
more
properties,
but
has
not
yet
entered
into
a
binding
purchase
contract
for
the
property
or
properties.
Many
times
purchases
occur
where
the
purchase
contract
is
signed
and
the
closing
occurs
at
the
same
time,
especially
when
real
property
is
included
in
a
larger
corporate
transaction.
These
types
of
transactions
must
also
be
considered
in
determining
how
the
rule
becomes
effective.

Response:
773
The
effective
date
of
the
final
rule
is
one
year
following
the
date
of
publication
of
the
rule
in
the
Federal
Register.
EPA
believes
that
allowing
for
a
year
between
publication
of
the
final
rule
and
the
effective
date
will
provide
adequate
public
notice
and
would
allow
for
site
assessments
that
are
underway
under
the
existing
interim
standards
to
be
completed
and
considered
to
meet
the
provisions
of
the
final
rule
without
having
to
revise
them
to
meet
the
new
standards
in
midcourse

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
9
Excerpt
Text:
USEPA
does
not
address
in
either
the
preamble
or
the
AAI
Rule
how
the
new
rule
will
be
put
into
effect.
To
avoid
gaps,
it
will
be
critical
that
the
effective
date
for
the
AAI
Rule
allow
adequate
time
for
property
transactions
which
commenced
AAI
using
the
ASTM
standard
prior
to
the
new
AAI
Rule
to
close.
Moreover,
Users
will
have
to
become
familiar
with
the
new
requirements.
It
will
take
time
for
institutional
Users
to
confirm
that
their
EPs'
qualifications
comply
with
the
new
AAI
Rule
and
to
qualify
and
retain
additional
EPs,
if
necessary.
For
all
these
reasons,
we
suggest
that
the
AAI
Rule
go
into
effect
at
least
one
(
1)
year
after
the
final
rule
is
promulgated.

Response:
The
effective
date
of
the
final
rule
is
one
year
following
the
date
of
publication
of
the
rule
in
the
Federal
Register.
EPA
believes
that
allowing
for
a
year
between
publication
of
the
final
rule
and
the
effective
date
will
provide
adequate
public
notice
and
would
allow
for
site
assessments
that
are
underway
under
the
existing
interim
standards
to
be
completed
and
considered
to
meet
the
standards
of
the
final
rule,
without
having
to
revise
them
to
meet
the
new
standards
in
midcourse
This
also
will
provide
adequate
time
for
property
owners
to
familiarize
themselves
with
the
rule
and
confirm
the
qualifications
of
their
environmental
professionals.

Commenter
Organization
Name:
Tryon,
Bill
Comment
Number:
0418
Excerpt
Number:
8
Excerpt
Text:
Despite
EPA's
development
of
a
standard
for
AAI,
ASTM's
practice
will
continue
to
serve
an
important
role
in
the
industry.
EPA's
definition
leaves
much
to
the
discretion
of
the
EP.
ASTM's
practice
will
continue
to
provide
a
safe
harbor
to
minimize
consultant
liability
and
avoid
groundup
recreation
of
the
scope
of
work
for
every
assignment.

As
a
point
of
clarification,
the
examples
cited
in
the
AAI
pre­
amble
outlining
the
areas
where
the
1527­
97/
1527­
00
does
not
meet
the
intent
of
the
legislation
do
not
appear
to
be
completely
accurate:

The
alternate
date
of
1940
required
under
the
1527­
97
and
1527­
00
is
more
stringent
than
the
774
proposed
rule.
The
legislation,
as
well
as
the
1527,
requires
review
of
historical
sources
to
determine
first
developed
use.
However,
the
1527
exceeds
AAI
in
that
a
property
that
is
currently
undeveloped,
or
was
recently
developed,
must
be
researched
back
to
at
least
1940
even
if
the
property
has
been
undeveloped
for
that
entire
period.

The
1527
meets
the
intent
of
the
legislation
in
mandating
visual
inspections
of
adjoining
properties
(
Section
8.4.1.3),
and
exceeds
the
legislation
by
requiring
the
identification
of
property
uses
beyond
adjoining
properties
if,
in
the
judgment
of
the
EP
the
uses
are
likely
to
indicate
recognized
environmental
conditions
on
the
subject
site
(
section
8.1.5).
Additionally,
historical
uses
of
adjoining
properties
"
shall
be
described
in
the
report
if
they
are
likely
to
indicate
recognized
environmental
conditions
in
connection
with
the
adjoining
properties
or
the
property."

Response:
It
is
the
Agency=
s
intent
to
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.
However,
as
explained
in
the
preamble
to
the
proposed
rule,
EPA
determined
that
the
2000
version
of
ASTM's
E1527
Phase
I
Environmental
Site
Assessment
Process
is
not
consistent
with
the
statutory
criteria
for
all
appropriate
inquiries.
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
ANTTAA@),
Public
Law
No.
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
agencies
to
use
technical
standards
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies,
unless
their
use
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Given
that
EPA
determined
that
the
ASTM
E1527­
2000
standard
is
inconsistent
with
applicable
law,
use
of
the
ASTM
E1527­
2000
standard
is
not
consistent
with
statutory
requirements.

EPA
is
not
convinced
by
the
commenter's
arguments
regarding
the
consistency
of
the
ASTM
standard
with
the
statutory
criteria.
Particularly
in
the
case
of
the
need
to
consider
the
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
it
were
not
contaminated,
the
mere
fact
that
the
commenter
believes
that
ASTM
International
included
a
related
activity
in
the
E1527
standard
in
response
to
the
1986
amends
to
CERCLA,
does
not
render
the
standard
compliant
with
the
statute.
Also,
in
the
case
of
environmental
cleanup
liens,
EPA
disagrees
with
the
commenter's
statement
that
land
title
records
are
"
under
state
law 
the
only
place
where
liens
can
be
validly
recorded."
Such
liens
may
be
included
as
part
of
the
chain
of
title
documents
or
may
be
recorded
in
some
other
manner
or
format
by
state
or
local
government
agencies.
Recorded
environmental
cleanup
liens
may
be
recorded
in
different
places,
depending
upon
the
particular
state
and
particular
locality
in
which
the
property
is
located.

Since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
775
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

EPA
is
confident
that
in
the
near
future,
an
updated
ASTM
E1527
standard
will
be
available
for
use
in
complying
with
the
federal
regulations
for
all
appropriate
inquiries.
EPA's
activities
with
regard
to
reviewing
and
evaluating
the
ASTM
standard
and
working
with
the
ASTM
E50
subcommittee
to
update
the
E1527
standard
are
compliant
with
the
NTTAA.

Commenter
Organization
Name:
West
Berkeley
Association
Comment
Number:
0430
Excerpt
Number:
3
Excerpt
Text:
At
a
minimum,
we
request
that
EPA
amend
the
text
of
the
proposed
regulation
as
follows
at
§
312.21:

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

­­(
1)
Only
Ppersons
who
purchased
property
after
the
effective
date
of
this
part
and
are
seeking
to
qualify
for:

We
think
you
will
agree
that
EPA
might
clarify
existing
law
as
it
applies
to
past
transactions
by
restating
good
commercial
practice
as
it
has
existed
in
the
past,
but
it
may
not
retroactively
apply
new
requirements.
If
it
is
correct
that
EPA
only
intends
the
new
rule
to
affect
persons
who
purchase
property
after
the
effective
date
of
the
rule,
we
see
no
reason
why
you
would
not
agree
to
make
the
change
that
we
suggest.

We
think
this
change
is
important
because
the
Brownfield
Amendments
provide
interim
standards
that
are
retroactive
and
state
that
these
interim
standards
remain
in
effect
"
until
the
Administrator
promulgates
the
regulations
[
for
AAI]."
This
would
lead
the
average
reader
to
believe
that
the
new
AAI
regulations
will
be
retroactive.
We
are
also
concerned
because
in
several
places
in
the
text
of
the
new
rule
and
in
the
explanatory
passages
provided
by
EPA
it
states
that:
"
Today's
proposed
rule
applies
to
any
person
who
may
seek
the
landowner
liability
protections
of
CERCLA
as
an
innocent
owner,
contiguous
property
owner,
or
bona
fide
prospective
purchaser."
A
plain
reading
of
this
passage
would
be
that
"
any
person"
means
any
person,
whether
they
bought
property
in
the
past
or
buy
it
in
the
future.

Response:
The
point
made
by
the
commenter
is
addressed
by
establishing
an
effective
date
for
the
final
rule.
The
effective
date
of
the
final
rule
is
one
year
following
the
date
of
publication
of
the
rule
in
the
Federal
Register.
EPA
believes
that
allowing
for
a
year
between
publication
of
the
final
776
rule
and
the
effective
date
will
provide
adequate
public
notice
and
would
allow
for
site
assessments
that
are
underway
under
the
existing
interim
standards
to
be
completed
and
considered
to
meet
the
provisions
of
the
final
rule,
without
having
to
revise
them
to
meet
the
new
standards
in
mid­
course.
Persons
who
bought
property
prior
to
the
effective
date
of
the
final
rule
will
not
be
affected
by
the
final
rule.
The
requirements
of
the
final
rule
affect
only
future
purchases
in
that
a
property
owner
must
comply
with
the
provisions
prior
to
the
date
of
acquiring
the
property.
777
6.3
The
Agency
Should
Clarify
whether
the
CERCLA
Liability
Protections
Apply
if
the
State
Government
Acquires
the
Property
Amicably
by
Agreement
in
Lieu
of
Eminent
Domain
Commenter
Organization
Name:
Patel
Comment
Number:
0115
Excerpt
Number:
1
Excerpt
Text:
As
noted
in
the
last
paragraph
of
Section
III.
A.
of
the
Supplementary
information,
the
Proposed
Rule
does
not
affect
the
existing
CERCLA
liability
protections
for
state
governments
that
acquire
ownership
of
property
in
their
functions
as
sovereigns
pursuant
to
eminent
domain.
However,
it
is
unclear
whether
the
liability
protections
pursuant
to
CERCLA
Sections
101(
2)(
D)
and
101(
35){
A)(
ii)
apply
where
a
state
government
acquires
property
amicably
by
agreement
in
lieu
of
eminent
domain.

It
would
be
neither
feasible
nor
cost
effective
for
a
state
government
to
apply
the
standards
in
the
proposed
rule
to
every
property
acquired
as
part
of
a
large
scale
project,
such
as
a
federally
funded
highway
construction
project.
The
standards
would
also
be
duplicative,
in
many
instances,
in
light
of
other
state
and
federal
requirements
such
as
the
requirements
of
the
National
Environmental
Policy
Act
of
1969,
This
could
place
state
highway
departments
in
the
unfortunate
position
of
having
to
choose
between
forgoing
CERCLA
liability
protection
or
wasting
public
dollars
by
either
acquiring
all
property
for
a
highway
construction
project
through
unnecessary
eminent
domain
proceedings
or
by
conducting
highly
expensive
and
potentially
duplicative
environmental
evaluations.

Accordingly,
the
Pennsylvania
Department
of
Transportation
respectfully
requests
that
the
EPA
either
clarify
that
the
liability
protections
pursuant
to
CERCLA
Sections
101(
2)(
D)
and
101(
35)(
A)(
ii)
apply
even
where
the
state
government
acquires
the
property
amicably
by
agreement
in
lieu
of
eminent
domain
or
that
the
EPA
amend
the
Proposed
Rule
to
provide
an
exception
that
would
allow
state
governments
to
meet
the
standards
and
practices
for
all
appropriate
inquiries
for
large
scale
projects
by
employing
the
existing
ASTM
standards
and
compliance
with
other
state
and
Federal
requirements.

Response:
The
final
rule
setting
federal
standards
for
the
conduct
of
all
appropriate
inquiries
does
not
affect
in
any
way
the
CERCLA
liability
provisions
or
liability
protections.
In
fact,
the
statutory
liability
protections
cited
by
the
commenter
are
outside
the
scope
of
the
final
rule.
The
final
rule
merely
sets
forth
requirements
for
complying
with
one
condition
for
obtaining
protection
from
CERCLA
liability.

Although
it
may
be
burdensome
or
costly
for
state
and
local
governments
to
comply
with
the
provisions
of
the
rule
in
cases
where
they
are
acquiring
large
parcels
of
land,
nothing
in
the
CERCLA
statute
authorizes
EPA
to
exempt
state
and
local
governments
from
the
requirements
of
the
final
rule.
778
With
regard
to
the
use
of
the
ASTM
E1527
standard,
since
publication
of
the
proposed
rule,
ASTM
International
and
its
committee
responsible
for
the
development
of
the
ASTM
E1527
Phase
I
Environmental
Site
Assessment
Process
reviewed
and
dated
the
A2000"
version
of
the
E1527
standard
to
address
the
differences
between
the
ASTM
E1527
standard
and
the
criteria
established
by
Congress
in
the
Brownfields
Amendments
to
CERCLA.
These
activities
were
conducted
within
the
normal
review
and
updating
process
that
ASTM
International
undertakes
for
each
standard
over
a
five­
year
cycle.
EPA
determined
that
the
updated
standard
is
compliant
with
the
statutory
criteria
and
consistent
with
the
final
rule.
Therefore,
in
the
final
rule,
EPA
is
referencing
the
standards
and
practices
developed
by
ASTM
International
and
known
as
Standard
E1527­
05
(
entitled
"
Standard
Practice
for
Environmental
Site
Assessments:
Phase
I
Environmental
Site
Assessment
Process)."
Persons
conducting
all
appropriate
inquiries
may
use
the
procedures
included
in
the
ASTM
E1527­
05
standard
to
conduct
all
appropriate
inquiries
in
compliance
with
the
final
rule.

Commenter
Organization
Name:
ODOT
Comment
Number:
0244
Excerpt
Number:
1
Excerpt
Text:
We
are
pleased
to
submit
these
comments
on
behalf
of
the
Ohio
Department
of
Transportation
("
ODOT")
on
the
U.
S.
Environmental
Protection
Agency's
("
EPA")
proposed
rule
for
conducting
"
all
appropriate
inquiries"
under
Section
101(
35)(
B)
of
CERCLA.
ODOT
appreciates
the
transparent
process
EPA
has
used
to
create
the
proposed
rule.
The
"
negotiated
rulemaking"
will
ensure
that
EPA's
final
rule
reflects
appropriately
the
concerns
of
the
regulated
communities
and
the
general
public.

ODOT
recognizes
the
challenge
EPA
faces
in
drafting
the
rule
in
a
way
that
sufficiently
covers
the
interests
of
the
regulated
community
and
is
consistent
with
the
goals
of
CERCLA.
The
proposed
rule,
however,
fails
to
address
one
major
area
of
concern
for
ODOT.
Specifically,
the
rule
could
result
in
inconsistent
application
of
CERCLA
exemptions
to
liability
for
states
conducting
property
acquisitions.
As
written,
it
fails
to
adequately
take
into
account
differing
interpretations
and
legal
standards
for
a
state's
exercise
of
eminent
domain
authority
which,
in
turn,
could
lead
to
inconsistent
and
unfair
application
of
the
protections
intended
to
be
afforded
by
the
conduct
of
all
appropriate
inquiries.
ODOT's
comments
address
this
one
specific,
but
crucial,
aspect
of
EPA's
proposal.

POTENTIAL
INCONSISTENCY
IN
APPLICATION
OF
THE
PROPOSED
RULE
TO
STATES
ASSERTING
INNOCENT
LANDOWNER
DEFENSE
In
1986,
SARA
created
the
"
innocent
landowner"
defense
to
CERCLA
liability,
by
which
persons
are
not
subject
to
CERCLA
liability
if
they
demonstrate
they
did
not
have
"
reason
to
know,"
prior
to
purchasing
property,
that
such
property
had
been
the
site
of
the
disposal
or
release
of
hazardous
waste.
In
order
to
claim
protection
under
SARA,
prior
to,
or
at
the
time
of
779
purchase,
a
person
must
have
undertaken
"
all
appropriate
inquiries"
into
the
previous
ownership
and
usage
of
the
property.
The
rule
currently
under
consideration
would
apply
to
any
and
all
potentially
responsible
parties
hoping
to
avail
themselves
of
the
innocent
landowner
defense.

Under
SARA,
42
U.
S.
C.
§
9607(
b),
a
property
owner
is
immune
to
"
owner"
liability
when
it
can
prove,
inter
alia,
it
was
not
in
a
"
contractual
relationship"
with
the
person
who
caused
the
contamination.
This
section
reads
in
part:

There
shall
be
no
liability
under
subsection
(
a)
of
this
section
for
a
person
otherwise
liable
who
can
establish
by
a
preponderance
of
the
evidence
that
the
release
or
threat
of
release
of
a
hazardous
substance
and
the
damages
resulting
there
from
were
caused
solely
by...

(
3)
an
act
or
omission
of
a
third
party
other
than
an
employee
or
agent
of
the
defendant,
or
than
one
whose
act
or
omission
occurs
in
connection
with
a
contractual
relationship,
existing
directly
or
indirectly,
with
the
defendant...

The
definition
of
"
contractual
relationship"
excludes
situations
where
(
1)
the
property
at
issue
is
acquired
after
the
disposal
or
placement
of
the
hazardous
substance
on
the
property,
AND
(
2)
the
defendant
can
prove
that
he
did
not
have
actual/
constructive
knowledge
of
a
release/
threat
OR
the
defendant
is
a
governmental
entity
which
acquired
property
by
eminent
domain
[
Footnote:
The
definition
of
"
contractual
relationship"
actually
sets
out
three
mitigating
circumstances
that
cut
against
such
a
finding.
A
defendant
must
establish
that
at
least
one
of
the
three
circumstances
set
out
in
the
definition
are
met
in
order
to
qualify
under
the
SARA
exemption.
The
mitigating
circumstances
set
out
in
42
U.
S.
C.
§
9601(
35)(
A)(
i)­(
iii)
are
as
follows:(
i)
At
the
time
the
defendant
acquired
the
facility
the
defendant
did
not
know
and
had
no
reason
to
know
that
any
hazardous
substance
which
is
the
subject
of
the
release
or
threatened
release
was
disposed
of
on,
in,
or
at
the
facility.
(
ii)
The
defendant
is
a
government
entity
which
acquired
the
facility
by
escheat,
or
through
any
other
involuntary
transfer
or
acquisition,
or
through
the
exercise
of
eminent
domain
authority
by
purchase
or
condemnation.
(
iii)
The
defendant
acquired
the
facility
by
inheritance
or
bequest.].

Thus,
the
duty
to
conduct
all
appropriate
inquiries
is
triggered
only
when
a
landowner
proceeds
under
the
knowledge
theory
set
out
at
42
U.
S.
C.
§
9601(
A)(
35)(
i).
The
statute
clarifies
that
a
governmental
entity
taking
property
for
public
purposes
need
not
conduct
all
appropriate
inquiries
because
the
definition
of
contractual
relationship
referenced
in
Section
9601(
35)(
A)(
ii)
expressly
excludes
situations
where
the
government
entity
exercises
its
eminent
domain
authority.

A
problem
arises
in
the
application
of
the
proposed
rule
because
of
competing
interpretations
of
the
term
"
eminent
domain
authority."
In
particular,
a
state
interpreting
the
term
to
include
any
land
acquisitions
made
on
the
threat
of
a
state's
eminent
domain
power,
would
be
unaffected
by
the
proposed
rule.
However,
a
state
interpreting
the
term
to
include
only
situations
where
the
state
acquires
property
by
eminent
domain
through
adjudication,
would
need
to
proceed
under
Section
9601(
35)(
A)(
i)
with
respect
to
voluntary
property
acquisitions
and
conduct
all
appropriate
inquiries
in
order
to
avail
themselves
of
the
innocent
landowner
defense.
780
Some
courts
(
notably
in
the
Ninth
Circuit)
read
the
term
"
exercise
of
eminent
domain
authority"
broadly
to
include
property
sold
under
the
threat
of
the
government's
eminent
domain
power
[
Footnote:
In
Emeryville
v.
Elementis
Pigments
Inc.,
No.
C
99­
03719
(
N.
D.
Cal.
2001),
the
court
held
that
the
"
exercise
of
eminent
domain"
included
land
transfers
where
eminent
domain
actions
were
threatened
and
not
filed..].
By
contrast,
the
state
of
Ohio
interprets
the
term
strictly.
O.
R.
C.
163.04
and
163.05
proscribe
the
method
by
which
an
agency
in
the
state
of
Ohio
may
exercise
its
eminent
domain
power.
Section
163.04
states,
"
appropriations
shall
be
made
only
after
the
agency
is
unable
to
agree,
for
any
reason,
with
the
owner..."

In
City
of
Toledo
v.
Beazer
Materials
&
Services,
923
F.
Supp.
1013
(
N.
D.
Ohio
1996),
the
court
interpreted
this
language
to
address
the
situation
where
a
governmental
entity
coerced
a
private
land
owner
into
selling
its
land
under
the
threat
of
eminent
domain.
The
court
held
that
since
the
parties
were
able
to
reach
an
agreement
on
the
sale
of
the
property,
then
the
state
had
not
"
exercised"
its
eminent
domain
authority.
The
court
concluded
that
"
only
if
the
parties
had
been
unable
to
agree
would
the
City
have
been
empowered
to
exercise
its
power
of
eminent
domain
under
O.
R.
C.
Sec.
163.05[
Footnote:
Section
163.05
reads:
An
agency
which
has
met
the
requirements
of
section
163.04
of
the
Revised
Code,
may
commence
proceedings
in
a
proper
court
by
filing
a
petition
for
appropriation
of
each
parcel
or
contiguous
parcels
in
a
single
common
ownership,
or
interest
or
right
therein.]."
The
court
reasoned
that
since
it
was
unnecessary
for
the
City
to
takes
steps
to
institute
eminent
domain
proceedings
in
court,
then
it
could
not
be
held
that
the
property
was
acquired
through
the
City's
"
exercise
of
eminent
domain
authority."
923
F.
Supp.
at
1020.

The
Beazer
court's
approach
has
been
followed
in
other
jurisdictions.
In
City
of
Wichita
v.
Aero
Holdings,
Inc.,
177
F.
Supp.
2d
1153
(
D.
Kan.
2000),
a
municipality
sought
to
escape
CERCLA
liability
by
arguing
that
it
had
acquired
title
to
contaminated
property
involuntarily
by
virtue
of
its
function
as
sovereign
[
Footnote:
CERCLA
§
101(
20)(
D),
42
U.
S.
C.
§
9601(
20)(
D),
excludes
from
the
definition
of
"
owner
or
operator"
any
"
unit
of
.
.
.
local
government
which
acquired
ownership
or
control
involuntarily
through
bankruptcy,
tax
delinquency,
abandonment,
or
other
circumstances
in
which
the
government
involuntarily
acquires
title
by
virtue
of
its
function
as
sovereign."
The
municipality
argued
that
it
was
excluded
from
this
definition
and
thereby
not
liable
as
a
PRP
under
Section
107(
a)(
1).].
Citing
Beazer,
the
court
held
that
while
the
exercise
of
eminent
domain
was
a
function
reserved
to
the
sovereign,
a
municipality
could
not
place
itself
beyond
CERCLA's
reach
by
"
merely
threatening
the
exercise
of
eminent
domain."
As
in
Beazer,
the
court
commented
that
the
municipality
must
actually
institute
court
proceedings
in
order
to
exercise
its
eminent
domain
authority.
177
F.
Supp.
at
1169.

By
way
of
contrast,
we
understand
that
the
Washington
Department
of
Transportation
("
WDOT")
subscribes
to
the
notion
that
transportation
departments
generally
do
not
need
to
establish
innocent
landowner
defenses
to
CERCLA
liability
because
they
can
avail
themselves
to
a
defense
under
eminent
domain
for
all
their
takings,
whether
forced
or
voluntary.
This
approach
is
illustrated
in
Emeryville
v.
Elementis
Pigments
Inc.,
No.
C
99­
03719
(
N.
D.
Cal.
2001).
There,
the
court
held
that
the
"
exercise
of
eminent
domain"
included
land
transfers
where
eminent
domain
actions
were
threatened
and
not
filed.
The
California
court
reasoned
that
781
CERCLA
was
intended
to
make
environmental
clean
up
actions
more
speedy
and
efficient,
and
that
limiting
the
definition
of
"
eminent
domain
authority"
would
serve
to
frustrate
that
purpose.
Requiring
the
state
to
file
eminent
domain
proceedings
in
court
before
acquiring
property
that
may
be
contaminated,
would
ostensibly
delay
the
sale
and
clean
up
of
contaminated
property.

In
light
of
these
competing
interpretations,
the
gap
in
the
proposed
regulations
has
the
potential
to
lead
to
perverse
results
among
agencies
in
different
states
acquiring
land
for
the
public
benefit
in
virtually
the
same
way.
The
proposed
rule
may
or
may
not
forgive
potential
CERCLA
liability
to
state
agencies
depending
on
differing
interpretations
of
what
constitutes
an
exercise
of
eminent
domain
authority.
States
subject
to
judicial
interpretations
of
eminent
domain
authority
like
the
Northern
District
of
California
could
avoid
undertaking
the
all
appropriate
inquiries
analysis
in
making
voluntary
property
acquisitions,
while
state
agencies
in
jurisdictions
like
Ohio
and
Kansas
would
need
to
comply
with
the
rule
in
order
to
obtain
the
same
stated
benefits
of
the
exemption.

IMPLICATIONS
OF
THE
PROPOSED
RULE
ON
ODOT
The
practical
implications
of
the
proposed
rule
for
ODOT
are
real.
ODOT
conducts
property
acquisitions
consistent
with
a
careful
environmental
site
assessment
program.
It
clearly
wishes
to
obtain
the
benefit
of
the
innocent
landowner
defense.
By
way
of
example,
however,
two
ODOT
construction
projects
would
face
serious
cost
issues
based
on
the
interpretation
of
eminent
domain
authority
described
above.

The
Appalachian
Corridor
D
project
is
a
collaborative
effort
between
West
Virginia
and
Ohio
on
the
construction
of
a
new
bridge
over
the
Ohio
River.
The
project
was
initiated
by
the
West
Virginia
Department
of
Transportation
("
WVDOT").
ODOT's
side
of
this
project
is
dependant
on
WVDOT's
ability
to
complete
the
applicable
environmental
documentation,
project
plans
and
to
acquire
funding.
An
environmental
site
assessment
was
completed
in
the
year
2000
for
the
project
area.
Rights­
of­
Way
("
ROW")
could
not
be
acquired
for
each
property
until
the
preferred
alignment
was
chosen
by
WVDOT
and
the
ROW
plans
were
finalized.
The
ROW
acquisition
process
was
authorized
to
proceed
July
2,
2003.
At
this
time,
the
ROW
acquisition
has
been
completed
for
five
of
the
seven
properties.
ODOT
has
been
forced
to
file
eminent
domain
actions
to
acquire
rights
to
the
two
remaining
properties.
Negotiations
for
the
most
recently
acquired
property
(
an
industrial
property
undergoing
RCRA
cleanup)
stalled
during
the
acquisition
process.
ODOT
began
coordinating
with
the
industrial
owner,
Ohio
EPA
and
EPA
to
ensure
that
the
RCRA
cleanup
was
either
completed
prior
to
or
incorporated
into
the
transportation
project.
These
negotiations
began
in
2000
as
a
result
of
the
environmental
site
assessment
findings.
Unlike
private
land
acquisitions,
ODOT's
negotiations
are
generally
very
complex
because
of
the
variety
of
issues
that
arise
such
as
the
loss
of
utility
to
adjacent
parts
of
the
seller's
property,
access
rights,
and
fair
market
value.
After
negotiations
stalled,
ODOT
began
the
process
of
initiating
an
appropriation
through
eminent
domain.
In
this
case,
however,
the
landowner
agreed
to
a
last­
minute
settlement
which
kept
the
acquisition
out
of
the
appropriations
process.

If
the
proposed
rule
had
been
used
as
a
part
of
this
acquisition,
in
order
to
obtain
an
exemption
782
under
SARA,
ODOT
would
have
been
required
to
conduct
all
appropriate
inquiries
for
five
of
the
properties
but
not
for
two
of
the
last
acquisitions,
solely
because
the
latter
would
be
viewed
as
acquisitions
under
its
eminent
domain
authority.
Despite
the
fact
that
all
of
the
acquired
properties
are
part
of
a
larger
area
that
has
already
been
subjected
to
an
environmental
site
assessment
under
NEPA,
ODOT
would
be
required
to
comply
with
the
proposed
rule
with
respect
to
five
of
the
seven
parcels
simply
because
it
did
not
need
to
resort
to
court
adjudication
in
order
to
acquire
rights
to
these
properties.
Furthermore,
analysis
under
the
all
appropriate
inquiries
rule
would
be
far
less
comprehensive
than
the
environmental
site
assessment
and
any
information
ODOT
gathered
through
the
collaborative
effort
with
USEPA,
Ohio
EPA
and
the
landowner.
Those
properties
taken
by
eminent
domain
benefited
from
ODOT's
approach.
As
ODOT's
appropriation
by
eminent
domain
only
occurs
as
a
last
resort,
these
properties
were
subject
to
the
same
environmental
site
assessment
studies
and
cooperative
fact
gathering
efforts
as
those
properties
acquired
voluntarily.

Another
project,
the
widening
of
Navarre
Avenue
(
LUC­
2­
21.15
PID:
9159),
would
face
significant
costs
concerns
if
compelled
to
meet
the
all
appropriate
inquiries
standards.
This
project,
the
widening
of
approximately
6
miles
of
SR
2
within
the
City
of
Oregon,
Ohio,
required
465
property
acquisitions.
The
environmental
site
assessment
studies
were
completed
in
November
of
1995
with
property
acquisition
beginning
in
June
1998.
Of
these
465
parcels,
120
were
appropriated
through
eminent
domain
proceedings.
Under
the
proposed
rule,
an
additional
round
of
all
appropriate
inquiries
assessments
would
be
required
for
each
of
the
remaining
345
voluntary
acquisitions
in
order
to
obtain
the
benefit
of
the
CERCLA
exemption.
This
effort
could
add
approximately
$
1,207,500
to
the
project's
cost
(
assuming
that
each
inquiry
cost
$
3500
per
property,
this
figure
does
not
include
the
cost
of
the
appraisal,
title
and
other
real
estate
information
obtained
during
the
acquisition
process
after
the
environmental
site
assessment
studies
were
completed).

CONCLUSION
To
place
the
concerns
raised
in
these
comments
in
prospective,
only
approximately
12%
of
ODOT's
annual
property
acquisitions
are
made
via
eminent
domain
actions.
Yet,
ODOT's
current
approach
insures
that
all
of
its
property
acquisitions,
both
voluntary
and
involuntary,
include
a
rigorous
environment
site
assessment
process.

In
recognition
of
the
current
inconsistency
in
application
of
the
proposed
rule,
ODOT
respectfully
requests
that
EPA
revise
the
rule
to
exclude
both
voluntary
and
involuntary
property
acquisitions
from
the
all
appropriate
inquiries
analysis
for
government
entities.
Application
of
the
rule
as
written
has
the
potential
to
significantly
increase
the
costs
of
all
transportation
projects
in
Ohio.
By
amending
the
rule,
EPA
would
promote
consistency
among
states
acquiring
property
under
the
SARA
exemption.
Such
an
amendment
would
substantially
lower
transportation
project
costs
in
these
states,
while
not
diluting
the
CERCLA's
goals
of
environmental
protection.

Response:
Although
EPA
sympathizes
with
the
commenters
concerns,
the
commenter's
request
is
beyond
783
the
scope
of
the
final
rule.
The
statute
does
not
provide
an
exemption
from
CERCLA
liability
for
state
and
local
governments
that
acquire
property
voluntarily.
784
6.4
Sections
of
the
Rule
Should
Be
Printed
in
Bold
Letters
Commenter
Organization
Name:
AZBTR
Comment
Number:
0338
Excerpt
Number:
1
Excerpt
Text:
The
AZBTR
strongly
agrees
with
the
language
of
312(
d).
It
is
the
responsibility
of
any
person
conducting
All
Appropriate
Inquiries
to
ensure
that
the
work
does
not
constitute
the
practice
of
any
of
the
professions
regulated
by
the
Board
unless
that
person
is
registered
with
the
Board.
Failure
to
comply
with
the
regulations
and
rules
of
the
Board
is
a
violation
of
Arizona
law
and
subjects
the
person
to
penalties
and
fines.

In
order
to
minimize
the
potential
for
a
violation
of
Arizona
law
the
AZBTR
suggests
that
the
sentence
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).
be
printed
in
bold
letters.

Response:
The
Agency
appreciates
the
commenter's
concern.
However,
EPA
does
not
share
the
commenter's
opinion
that
any
particular
section
of
the
regulatory
language
needs
to
be,
or
should
be,
highlighted
through
the
use
of
bold
font.
It
is
important
that
persons
to
whom
the
rule
applies
comply
with
all
of
the
requirements
in
the
final
rule.
785
6.5
Post­
acquisition
Statutory
Requirements
for
Obtaining
the
CERCLA
Liability
Protections
Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
4
Excerpt
Text:
The
Pre­
Amble
indicates
that
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
does
not
relieve
landowners
from
requirements
to
comply
with
post­
acquisition
requirements.
This
does
not
make
any
practical
sense.
If
a
prospective
purchaser
follows
AAI
rules
and
does
not
identify
these
conditions,
then
how
could
the
landowner
be
expected
to
have
knowledge
to
comply
with
post­
acquisition
requirements?
This
is
the
EPA
having
its
cake
and
eating
it
too!
The
EPA
creates
the
AAI
rules,
but
if
the
inquiry
consistent
with
the
rules
does
not
identify
conditions,
the
landowner
is
required
to
utilize
facts
not
in
their
possession.
R&
W
requests
the
EPA
to
recognize
that
people
can
only
act
on
their
knowledge
and
retract
this
legislation
by
rule
proposition.

Response:
EPA
notes
that
any
person
may
be
protected
from
CERCLA
liability
as
an
innocent
landowner
if
that
person
can
demonstrate
to
a
court
that
the
person
did
not
know,
"
and
had
no
reason
to
know"
of
the
contamination
for
which
the
person
may
be
accused
of
being
liable.
The
discussion
in
the
preamble
to
which
the
commenter
is
referring
is
meant
to
inform
the
public
that
failure
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
may
not
be
an
adequate
defense
to
liability
if
a
release
or
contamination
is
not
addressed
by
the
property
owner
and
is
later
discovered
by
a
third
party,
particularly
if
the
property
owner
cannot
demonstrate
that
all
appropriate
inquiries
were
conducted
in
compliance
with
the
provisions
of
the
regulatory
requirements.

Commenter
Organization
Name:
Anonymous
Comment
Number:
0371
Excerpt
Number:
1
Excerpt
Text:
While
I
believe
the
intent
of
adding
categories
of
protection
is
a
good
one,
it
appears
that
the
bona
fide
prospective
purchaser
and
contiguous
property
owner
defenses
have
greater
requirements
than
does
the
innocent
landowner.
One
of
the
reasons
developers
are
not
developing
brownfields
is
the
fear
of
being
held
responsible
for
clean
up
of
the
site.
I
don't
see
where
the
bona
fide
prospective
purchaser
defense
provides
them
with
any
relief
from
liability
and
appears
to
place
a
greater
burden
on
them,
due
to
the
statutory
requirements,
than
does
the
innocent
landowner
defense.

Each
of
the
defenses
requires
the
property
owner
to
take
reasonable
steps
to
stop
continuing
releases,
prevent
any
threatened
releases
and
prevent
or
limit
human,
786
environmental,
or
natural
resource
exposures
to
any
hazardous
substances
released
on
or
from
the
property.
I
can
foresee
circumstances
where
buried
or
subterranean
contamination
could
exist,
but
not
be
detected
during
document
reviews
and
interviews.
This
requirement
would
continue
to
limit
purchaser/
developer
interest
in
brownfields
sites
as
they
can
potentially
be
held
liable
for
cleaning
up
contamination
that
they
did
not
cause
or
have
reason
to
know
about.
It
would
seem
that
once
AAI
has
been
completed
for
a
given
property,
provided
that
the
AAI
did
not
identify
any
evidence
suggestive
of
potential
subsurface
contamination
or
contain
recommendations
for
Phase
II
sampling,
that
the
purchaser
not
be
held
liable
for
clean
up
of
the
property.

Response:
The
scope
of
the
final
rule
is
to
set
federal
standards
for
the
conduct
of
all
appropriate
inquiries.
All
appropriate
inquiries
is
just
one
criteria
established
by
Congress
in
CERCLA
that
is
necessary
for
obtaining
protection
from
CERCLA
liability.
The
commenter's
request
to
alter
the
criteria
necessary
for
obtaining
protection
from
CERCLA
liability
is
beyond
the
scope
of
the
final
rulemaking.
In
addition,
the
commenter's
request
may
be
beyond
EPA's
authority,
given
the
statutory
requirements.

Commenter
Organization
Name:
Rybak,
John
Thomas
Comment
Number:
0412
Excerpt
Number:
13
Excerpt
Text:
Exercise
Appropriate
Care
­
what
level
do
you
need
to
go
to,
to
halt
the
release
a)
Page
#
52546
b)
View:
The
purchaser
is
required
to
halt
a
release,
to
preserve
their
AAI.
The
definition
'
Halt
the
Release'
should
be
further
defined.

c)
Assumptions:
Halt
the
release
should
not
be
defined
as
remediate
the
source
of
release.
If
contaminated
soils
and
groundwater
are
present
onsite,
then
halt
the
source
should
not
constitute
remediation
of
the
soils.
However,
if
operations
or
above
ground
storage
of
chemicals
are
continuing
to
discharge
chemicals
and/
or
impact
the
property
('
operational
releases'),
then
the
purchaser
should
take
necessary
steps
to
limit
the
ongoing
release,
contribution
to
the
contamination
and/
or
protect
the
environment.
These
actions
should
not
make
them
liable
for
remediation
of
the
whole
contamination.

d)
Burden:
The
purchaser
will
have
a
burden
to
demonstrate
they
have
taken
proper
actions
to
halt
operational
releases,
and
not
contributed
to
the
known
contamination
onsite.
They
must
be
careful
not
to
disturb
or
manage
the
known
contamination.
The
extent
they
must
exercise
appropriate
care
may
affect
cash
flow
and
loan
repayments.

Response:
Continuing
obligations
required
under
the
statute
include:
stopping
on­
going
releases;
complying
with
land
use
restrictions
and
not
impeding
the
effectiveness
or
integrity
of
787
institutional
controls;
taking
Areasonable
steps@
with
respect
to
hazardous
substances
affecting
a
landowner=
s
property
to
prevent
future
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
rule.

As
explained
in
more
detail
in
the
"
Common
Elements"
guidance,
the
requirement
to
stop
on­
going
releases
(
or
"
halt"
the
release,
to
use
the
commenter's
term)
does
not
necessarily
require
that
the
property
owner
remediate
the
source
of
the
release
or
undertake
extensive
corrective
actions.
Determining
the
nature
and
extent
of
"
reasonable
steps"
necessary
to
ensure
compliance
with
the
continuing
obligations
imposed
under
the
statute
may
entail
an
assessment
of
the
site­
specific
circumstances
at
a
particular
property.

EPA
notes
that
persons
conducting
all
appropriate
inquiries
in
compliance
with
the
final
rule
are
not
entitled
to
the
CERCLA
liability
protections
provided
for
innocent
landowners,
bona
fide
prospective
purchasers,
and
contiguous
property
owners,
unless
they
also
comply
with
all
of
the
continuing
obligations
established
under
the
statute.
Compliance
with
the
final
rule
is
only
one
requirement
necessary
for
obtaining
CERCLA
liability
protection.

Commenter
Organization
Name:
Thornhill,
James
Comment
Number:
0414
Excerpt
Number:
2
Excerpt
Text:
The
underground
storage
tank
example
used
in
the
data
gap
discussion
on
page
52,560
does
not
appear
to
be
consistent
with
the
available
defenses
under
CERCLA
.
The
discussion
in
the
preamble
provides:
"
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
land
owner's
ultimate
ability
to
claim
protection
from
CERCLA
liability.
For
example,
if
a
person
does
not
identify,
during
all
appropriate
inquires
prior
to
acquiring
the
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
on­
going
release."
The
discussion
and
example
appear
to
miss
the
fact
that
CERCLA
has
an
innocent
purchaser
defense.
If
a
landowner
failed
to
learn
of
the
leaking
tank
because
he
or
she
failed
to
perform
all
appropriate
inquires,
then
he
or
788
she
would
be
unable
to
prove
the
bona
fide
prospective
purchaser
defense
and
the
failure
to
stop
an
ongoing
release
would
not
be
an
issue.
If,
on
the
other
hand,
the
landowner
did
conduct
all
appropriate
inquiries
and
did
not
find
the
leaking
tank,
then
he
or
she
would
attempt
to
prove
the
innocent
purchaser
defense
which
does
not
have
a
requirement
to
"
stop
a
continuing
release"
as
under
42
U.
S.
C.
§
9601(
40)(
D).
The
discussion
and
example
should
be
deleted
or
modified
for
consistency
with
the
two
defenses.

Response:
EPA
notes
that
any
person
may
be
protected
from
CERCLA
liability
as
an
innocent
landowner
if
that
person
can
demonstrate
to
a
court
that
the
person
did
not
know,
"
and
had
no
reason
to
know"
of
the
contamination
for
which
the
person
may
be
accused
of
being
liable.
The
discussion
in
the
preamble
to
which
the
commenter
is
referring
is
meant
to
inform
the
public
that
failure
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
may
not
be
an
adequate
defense
to
liability
if
a
release
or
contamination
is
not
addressed
by
the
property
owner
and
is
later
discovered
by
a
third
party,
particularly
if
the
property
owner
cannot
demonstrate
that
all
appropriate
inquiries
were
conducted
in
compliance
with
the
provisions
of
the
regulatory
requirements.

EPA
also
notes
for
the
commenter
that
the
innocent
landowner
defense
under
CERCLA,
as
amended
by
the
Brownfields
Amendments
(
at
Section
101(
35)(
B)(
i)(
II)(
aa))
requires
the
property
owner
to
take
reasonable
steps
to
stop
any
continuing
releases.
789
6.6
Impact
of
the
Rule
on
the
Cost
of
Liability
Insurance
Commenter
Organization
Name:
Goodman,
J.
Dwight
Comment
Number:
0097
Excerpt
Number:
2
Other
Sections:
NEW
­
3.13.2
­
AAIs
conducted
by
third
parties
Excerpt
Text:
Allowing
(
by
regs)
the
transfer
or
reliance
of
the
original
ESA
to
any
person
besides
the
one
it
was
originally
prepared
for
creates
an
undue
liability
which
will
likely
be
reflected
in
some
companies
by
increased
prices
and/
or
by
the
company
ceasing
to
provide
this
ESA
service
because
of
the
excessive
liability
versus
revenue
the
reports
generate.
Most
companies
want
to
reduce
liability,
but
by
allowing
anyone
to
use
the
original
ESA....
you
increase
that
liability
exposure.
Perhaps
a
re­
write
of
the
proposed
rule
that
would
state
it
is
"
allowable
under
the
judgment
of
the
EP
to
provide
reliance"
would
be
more
acceptable.

Response:
Nothing
in
the
proposed
or
final
rule
restricts
an
environmental
professional
and
a
property
owner
from
entering
into
a
contract
that
includes
provisions
for
restricting
the
transfer
or
distribution
of
information
or
products
development
under
the
terms
of
the
contract.
However,
the
final
rule
does
not
prohibit
the
use
of
previously
conducted
all
appropriate
inquiries
investigations
or
reports
or
the
information
contained
in
such
reports.
The
final
rule
does
require
that
an
all
appropriate
inquires
investigation
be
conducted
or
updated
with
one
year
of
the
date
of
acquisition
of
the
property.
In
addition,
in
the
case
of
all
appropriate
inquiries
conducted
more
than
180
days
prior
to
the
date
of
acquisition
of
a
property,
particular
elements
of
the
inquiries
must
be
updated.

Commenter
Organization
Name:
ENSR
International
Comment
Number:
0314
Excerpt
Number:
11
Other
Sections:
NEW
­
3.13.2
­
AAIs
conducted
by
third
parties
Excerpt
Text:
The
proposed
rule
§
312.20
(
c)
states
that
all
appropriate
inquiries
conducted
by
or
for
other
persons
can
be
used
(
which
could
be
interpreted
as
relied
on)
in
a
report
for
a
third
party.
The
preamble
(
page
52557,
first
paragraph
under
(
4))
also
states
that
all
appropriate
inquiries
can
be
conducted
by
one
party
and
transferred
to
another.

Comment:
While
likely
not
the
intent,
this
language
implies
that
numerous
parties
can
rely
on
a
report
prepared
by
a
consultant
for
their
client,
without
any
need
to
obtain
a
release
from
the
consultant.
This
would
set
an
unfortunate
precedent
in
the
assessment
industry,
and
increase
the
overall
business
risk
to
consultants
as
a
whole.
(
Thereby
reducing
their
willingness
to
perform
this
type
of
work
or
greatly
increasing
the
price
of
an
assessment
to
cover
the
added
risk)
790
Response:
Nothing
in
the
proposed
or
final
rule
restricts
an
environmental
professional
and
a
property
owner
from
entering
into
a
contract
that
includes
provisions
for
restricting
the
transfer
or
distribution
of
information
or
products
development
under
the
terms
of
the
contract.
However,
the
final
rule
does
not
prohibit
the
use
of
previously
conducted
all
appropriate
inquiries
investigations
or
reports
or
the
information
contained
in
such
reports.
The
final
rule
does
require
that
an
all
appropriate
inquires
investigation
be
conducted
or
updated
with
one
year
of
the
date
of
acquisition
of
the
property.
In
addition,
in
the
case
of
all
appropriate
inquiries
conducted
more
than
180
days
prior
to
the
date
of
acquisition
of
a
property,
particular
elements
of
the
inquiries
must
be
updated.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
5
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
The
Pre­
Amble
further
states
that
the
EP's
failure
to
identify
an
environmental
condition
or
identify
a
release
or
threatened
release
may
invalidate
defenses
to
CERCLA
liability.
This
essentially
raises
the
standard
of
professional
care
for
the
EP
to
perfection.
If
any
condition
is
not
identified
by
the
EP,
the
landowner
might
lose
CERCLA
defenses,
even
if
the
EP
strictly
followed
the
AAI
Rules.
Certainly,
the
EPA
is
far
from
perfect,
so
how
can
it
expect
the
EP
to
be
in
every
case?
R&
W
recommends
a
specific
statement
addressing
the
EP's
standard
of
care
be
included
in
the
AAI
rules.
Failure
to
do
so
will
increase
the
cost
of
the
inquiries
due
to
the
increased
cost
of
liability
insurance,
and
will
create
a
need
for
EPs
to
charge
a
risk
premium
relative
to
E­
1527
Phase
I
ESAs
due
to
inevitable
increases
in
litigation.
These
costs
were
not
addressed
in
the
Economic
Impact
Analysis
and,
therefore,
must
be
controlled
in
the
Proposed
Rules.
R&
W
requests
that
the
EPA
remove
this
statement
from
the
Pre­
Amble
and
specifically
address
this
vital
issue
in
any
future
Proposed
Rules.

Response:
EPA
notes
that
any
person
may
be
protected
from
CERCLA
liability
as
an
innocent
landowner
if
that
person
can
demonstrate
to
a
court
that
the
person
did
not
know,
"
and
had
no
reason
to
know"
of
the
contamination
for
which
the
person
may
be
accused
of
being
liable.
The
discussion
in
the
preamble
to
which
the
commenter
is
referring
is
meant
to
inform
the
public
that
failure
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
may
not
be
an
adequate
defense
to
liability
if
a
release
or
contamination
is
not
addressed
by
the
property
owner
and
is
later
discovered
by
a
third
party,
particularly
if
the
property
owner
cannot
demonstrate
that
all
appropriate
inquiries
were
conducted
in
compliance
with
the
provisions
of
the
regulatory
requirements.

EPA
also
notes
for
the
commenter
that
the
innocent
landowner
defense
under
CERCLA,
as
amended
by
the
Brownfields
Amendments
(
at
Section
101(
35)(
B)(
i)(
II)(
aa))
requires
the
property
owner
to
take
reasonable
steps
to
stop
any
continuing
releases.
The
791
requirements
for
making
the
innocent
landowner
defense,
as
well
as
all
of
the
statutory
criteria
for
claiming
the
bona
fide
prospective
purchaser
and
contiguous
property
owner
liability
protections
are
statutorily
imposed
and
not
within
the
scope
of
the
final
rule.
Costs
associated
with
complying
with
the
continuing
obligations
imposed
under
the
statute
therefore
are
not
considered
when
assessing
the
cost
impacts
of
the
rule.

Commenter
Organization
Name:
Geomatrix
Consultants
Comment
Number:
0433
Excerpt
Number:
5
Excerpt
Text:
Although
we
support
the
need
for
ESA
oversight
by
a
professional
engineer
or
geologist,
the
proposed
AAI
rules
will
result
in
significantly
greater
liability
for
EP's.
The
proposed
AAI
rules
will
entail
expanded
research
requirements,
less
guidance
on
exercising
professional
judgment,
and
more
scrutiny
on
data
gaps
during
the
ESA.
The
lack
of
detail
in
the
proposed
rules
will
require
the
EP
to
justify
in
writing
his
or
her
interpretation
of
the
rules.
Most
importantly,
the
proposed
AAI
rules
will
be
mandated
by
federal
law
instead
of
the
current
ASTM
industry
standard.
Because
the
proposed
AAI
approach
relies
heavily
on
the
judgment
of
the
EP,
EP's
will
be
more
exposed
to
errors
and
omissions
claims
until
a
new
standard
of
care
is
established.
Greater
liability
will
result
in
increased
costs
by
requiring
significantly
more
time
by
experienced
EP's
and
increased
insurance
premiums.

Response:
EPA
agrees
with
the
commenter
that
the
final
rule
includes
additional
requirements
for
documenting
data
gaps.
Costs
associated
with
the
incremental
burden
of
documenting
data
gaps
were
including
in
the
economic
analysis
conducted
for
the
proposed
and
final
rulemaking.
A
copy
of
the
economic
analysis
conducted
for
the
proposed
and
final
rulemakings
is
included
in
the
docket
for
the
final
rule.

EPA
notes
that
nothing
in
the
final
rule
precludes
an
environmental
professional
from
using
any
previous
guidance
available
on
how
best
to
use
his
or
her
judgment
in
conducting
environmental
assessments
or
the
all
appropriate
inquiries
investigations.
The
final
rule
includes
many
of
the
same
aspects,
with
regard
to
the
exercise
of
professional
judgment,
as
the
ASTM
E1527
standard.
EPA
does
not
agree
with
the
commenter
that
the
final
rule
will
result
in
environmental
professionals
having
to
exercise
significantly
more
judgment
than
under
the
ASTM
standard.
In
addition,
the
final
rule
requires
that
the
all
appropriate
inquiries
investigation
be
supervised
by
an
individual
who
meets
the
definition
of
environmental
professional,
as
defined
in
the
final
rule.
The
environmental
professional
must
meet
certain
education
and
experience
qualifications.
Persons
meeting
the
definition
of
an
environmental
professional
should
be
capable
of
exercising
the
level
of
professional
judgment
necessary
to
perform
the
activities
required
by
the
final
rule.

It
is
not
clear
that
the
insurance
industry
would
react
to
the
final
rule
as
the
commenter
has
indicated
or
that
there
will
be
any
increase
in
insurance
premiums
as
a
result
of
the
792
final
rule.
It
is
possible,
for
example,
that
insurance
companies
will
cut
premiums
for
all
policies
that
might
be
affected
by
potential
CERCLA
liability
issues
as
a
result
of
additional
liability
protections
afforded
under
the
statute
as
amended
by
the
Brownfields
Amendments
for
those
parties
who
comply
with
the
provisions
of
the
final
rule.

Commenter
Organization
Name:
Hearn,
J
Clark
Comment
Number:
0434
Excerpt
Number:
4
Other
Sections:
NEW
­
4.1
­
The
impact
of
the
rule
is
underestimated
Excerpt
Text:
In
addition
to
the
sections
discussed
above,
the
interviews,
historical
sources,
and
lien
search
provisions
of
the
new
rule
all
add
substantial
cost
and
uncertainty
to
the
conduct
of
a
Phase
I
site
assessment.

The
ASTM
­
1527­
2000
protocol
serves
the
private
sector
efficiently
from
both
the
performance
and
cost
perspectives.
The
proposed
AAI
rules
essentially
forces
a
public
sector
approach
to
real
estate
transactions
on
a
private
sector
marketplace
that
operates
under
strict
time
and
cost
constraints.
Nonetheless,
the
overall
time
and
cost
ramifications
on
the
private
sector
marketplace
have
not
been
been
credibly
addressed
by
ICF
in
the
document
issued
for
the
EPA.
The
zero
time
and
related
cost
allowances
put
forth
by
ICF
not
only
ignore
the
obvious
labor
cost
burdens
but
also
the
related
abstract
costs
such
as
increased
professional
liability
premiums,
more
conducted
Phase
II's
to
close
data
gaps,
and
fewer
providers
in
the
marketplace
as
a
result
of
the
proposed
stringent
Environmental
Professional
qualifications.

ICF's
determinations
are
arbitrary
in
nature
and
may
well
be
based
on
arbitrarily
established
foundations.
Such
arbitrary
foundations
were
voiced
by
EPA
representatives
at
an
AAI
workshop
held
as
part
of
ASTM's
meeting
in
Washington
DC
on
October
5,
2004,
"
ICF's
baseline
was
E
1527,
but
that's
not
being
met
right
now
by
many
poorquality
consultants.
If
the
industry
was
truly
following
ASTM,
the
impact
wouldn't
be
as
great.
Many
are
claiming
their
Phase
Is
are
ASTM­
compliant
when
in
fact
they
are
falling
short
of
the
bar."
Seems
to
be
a
perception
among
committee
members
and
EPA
players
here
that
if
you're
doing
good
work
now,
then
there's
not
a
whole
lot
that's
changing.

The
base
line
is,
in
fact,
that
the
private
sector
market
place
is
functioning
well
under
E
1527
and
that
most
consultants
are
doing
their
jobs
in
compliance
with
the
protocol.
The
new
rule
simply
adds
a
significant
amount
of
work
that
is
not
required
by
current
industry
practice.
The
proposed
AAI
rules
significantly
expand
consultant
liability
exposure,
which
will
result
in
higher
errors
and
omissions
insurance
premiums.
The
new
rule
will
increase
labor
costs
and
associated
time
dynamics
of
the
due
diligence
process.
In
many
instances
it
may
be
impossible
to
comply
with
the
new
rule
within
the
timeframe
that
the
marketplace
allows
for
closing
commercial
real
estate
transactions.
793
Response:
With
respect
to
the
commenter's
remark
regarding
the
incremental
burden,
the
Economic
Impact
Analysis
(
EIA)
conducted
for
the
proposed
and
final
rulemaking
estimated
incremental
burden
hours
for
the
new
or
incremental
requirements
imposed
under
the
final
rule
that
are
not
required
under
the
ASTM
E1527
standard.
A
copy
of
the
EIA
conducted
for
the
proposed
and
final
rules
is
included
in
the
docket
for
the
final
rule.

With
respect
to
the
commenter's
remark
regarding
liability
insurance,
it
is
not
clear
that
the
insurance
industry
would
react
to
the
final
rule
as
the
commenter
has
indicated.
It
is
also
possible,
for
example,
that
insurance
companies
will
cut
premiums
for
all
policies
that
might
be
affected
by
CERCLA
as
a
result
of
additional
liability
protection
the
final
rule
would
offer
to
prospective
landowners
who
follow
the
federal
standards.

With
respect
to
the
commenter's
concerns
regarding
the
proposed
definition
of
an
environmental
professional,
EPA
has
modified
the
definition
in
the
final
rule
to
allow
persons
who
have
10
years
of
full­
time
relevant
experience,
but
do
not
have
a
Baccalaureate
degree,
to
qualify
as
environmental
professionals.
The
definition
in
the
final
rule
is
less
stringent
than
the
proposed
definition,
allowing
for
most
people
currently
practicing
as
environmental
professionals
to
qualify.

With
regard
to
the
commenter's
concerns
regarding
the
baseline
used
for
assessing
the
incremental
costs
of
the
final
rule,
EPA
compared
the
costs
associated
with
the
activities
required
under
the
final
rule
with
those
required
under
the
interim
standard,
or
the
ASTM
E1527.
The
Agency
did
not
adjust
the
estimate
of
incremental
costs
based
upon
antidotal
information
that
some
environmental
professionals
are
not
complying
with
the
requirements
of
the
interim
standard.
794
6.7
Negotiated
Rulemaking
Committee/
Process
Commenter
Organization
Name:
Crocetti,
Charles
Comment
Number:
0110
Excerpt
Number:
3
Other
Sections:
NEW
­
1.1.1.1
­
Adopt
the
rule
as
proposed
Excerpt
Text:
The
proposed
rule
was
developed
based
on
the
work
of
a
Negotiated
Rulemaking
Committee
represented
by
a
wide
spectrum
of
interests,
including
the.
American
Society
of
Civil
Engineers,
the
National
Groundwater
Association,
and
ASFE.
The
latter
groups
represent,
I
believe,
some
of
the
premiere
technical/
trade
organizations
in
the
environmental
industry,
and
each
serves
as
a
valuable
resource
for
the
dissemination
of
technical
information
and
research
relative
to
environmental
work.

In
summary,
I
urge
EPA
to
adopt
the
All
Appropriate
Inquiry
rule
as
proposed.
I
very
much
appreciate
the
opportunity
to
comment
on
the
proposed
rule.

Response:
EPA
thanks
the
commenter
for
his
stated
support
of
the
proposed
rule.

Commenter
Organization
Name:
Academy
of
Certified
Hazardous
Materials
Managers
Comment
Number:
0140
Excerpt
Number:
4
Excerpt
Text:
In
general
the
Academy
agrees
with
and
supports
the
process
and
the
tenants
of
the
"
negotiated
rule
making
process"
but
EPA
must
make
assurances
to
the
community
that
an
impartial
and
equal
representation
of
stakeholders
are
included
in
all
future
similar
rule
proceedings.

Response:
EPA
thanks
the
commenter
for
its
stated
support
of
the
proposed
rule.
EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.

Commenter
Organization
Name:
AIPG
Comment
Number:
0253
Excerpt
Number:
1
795
Excerpt
Text:
It
is
not
clear
why
the
committee,
which
consisted
of
a
wide
range
of
stakeholders,
did
not
include
AIPG
as
an
invited
participant.

Response:
EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.
EPA
provided
public
notice
of
its
intent
to
negotiate
the
all
appropriate
inquiries
proposed
rulemaking
in
the
Federal
Register
on
March
6,
2003.
On
April
14,
2003
EPA
held
a
public
meeting
and
accepted
comment
on
the
Agency's
decision
to
negotiate
the
proposed
rule
and
on
the
Agency's
proposed
membership
for
the
negotiated
rulemaking
committee.

The
requirement
to
have
a
balanced
committee
membership
does
not
require
the
Agency
to
invite
all
interest
groups
representing
a
stakeholder
group
to
be
members
of
the
negotiated
rulemaking
committee.
Although
AIPG
was
not
invited
to
be
a
member
of
the
committee,
several
other
organizations
representing
the
environmental
professional
community
were
represented
on
the
committee.
In
addition,
at
least
one
member
of
the
negotiated
rulemaking
committee
was
a
registered
professional
geologist.

Commenter
Organization
Name:
OSBGE
Comment
Number:
0291
Excerpt
Number:
2
Excerpt
Text:
Nationwide,
many
practicing
geologists
provide
environmental
services
as
a
full­
time
career.
Given
that
a
significant
amount
of
geologic
work
is
conducted
as
part
of
environmental
services,
it
is
disappointing,
and
a
significant
oversight,
that
no
national
geology
organization
was
represented,
on
the
Committee
that
participated
in
this
negotiated
rulemaking
process.

Response:
Several
organizations
representing
the
environmental
professional
community
were
represented
on
the
negotiated
rulemaking
committee.
In
addition,
at
least
one
member
of
the
negotiated
rulemaking
committee
was
a
registered
professional
geologist.

EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.
EPA
provided
public
notice
of
its
796
intent
to
negotiate
the
all
appropriate
inquiries
proposed
rulemaking
in
the
Federal
Register
on
March
6,
2003.
On
April
14,
2003
EPA
held
a
public
meeting
and
accepted
comment
on
the
Agency's
decision
to
negotiate
the
proposed
rule
and
on
the
Agency's
proposed
membership
for
the
negotiated
rulemaking
committee.
EPA
also
accepted
public
comment
on
the
on­
going
negotiations
of
the
committee
at
each
meeting
of
the
committee.

Commenter
Organization
Name:
Rose
and
Westra
Comment
Number:
0320
Excerpt
Number:
1
Other
Sections:
NEW
­
6.1
­
EPA
should
adopt
ASTM
standard
rather
than
develop
separate
regulations
Excerpt
Text:
ASTM
E
1527­
00
is
a
consensus
Standard
developed
with
input
from
the
EPA,
lenders,
users
and
preparers
of
ESAs.
The
Pre­
Amble
states
that
the
ASTM
E
1527­
00
is
inconsistent
with
applicable
law .
Without
commenting
on
the
accuracy
of
the
EPA's
contention,
R&
W
notes
that
the
EPA
set
out
to
create
a
duplicative
standard
through
the
NRA/
FACA
process
instead
of
continuing
more
than
ten
years
of
cooperative
effort
with
the
ASTM
Committee
E­
50.
The
FACA
included
several
interest
groups
that
do
not
directly
use
or
participate
in
the
Phase
I
ESA/
AAI
process.
These
include
environmental
interest
groups,
the
environmental
justice
community,
residential
builders,
solid
waste
officials,
and
the
U.
S.
Conference
of
Mayors.
While
these
parties
have
essentially
no
direct
interest
in
the
AAI
process,
they
never­
the­
less
exerted
significant
influence
on
the
Proposed
Rules.
Therefore,
the
evolution
of
the
Proposed
Rules
was
fundamentally
flawed.
A
more
reasonable
solution
would
have
been
to
work
with
the
E­
50
Committee
to
make
adjustments
to
E­
1527­
00,
as
opposed
to
starting
over
with
a
flawed
FACA.
R&
W
requests
the
EPA
to
abandon
this
redundant
effort
and
work
with
E­
1527­
00
to
address
the
perceived
deficiencies
of
E­
1527­
00.

Response:
The
commenter
confuses
the
goals
of
the
ASTM
International
committee
and
the
goals
of
EPA's
rulemaking
process.
These
goals
are
not
the
same.
Stakeholder
groups
such
as
the
U.
S.
Conference
of
Mayors,
the
National
Association
of
Homebuilders,
the
Association
of
State
and
Territorial
Solid
Waste
Management
Officials,
and
environmental
justice
interest
groups
have
a
great
interest,
and
an
important
role
to
play,
in
the
development
of
federal
regulations
setting
standards
for
the
conduct
of
all
appropriate
inquiries,
particularly
given
that
the
federal
standards
are
one
criteria
that
prospective
landowners
must
follow
to
claim
protection
against
Superfund
liability.
Although
the
requirements
of
the
final
rule
are
not
greatly
different
than
the
requirements
included
in
the
ASTM
E1527­
2000
standard,
it
was
not
EPA's
goal,
or
the
goal
of
the
Negotiated
Rulemaking
Committee
tasked
with
developing
the
proposed
rule
to
"
create
a
duplicative
standard."
The
role
of
the
Negotiated
Rulemaking
Committee
was
to
develop
federal
standards
for
all
appropriate
inquiries
that
meet
the
requirements
of
the
CERCLA
statute.
Each
of
the
stakeholder
representatives
mentioned
by
the
commenter
as
having
"
essentially
no
direct
interest"
fully
participated
in
the
negotiated
rulemaking
797
process,
demonstrated
that
they
were
very
interested
in
the
outcome
of
the
negotiations,
and
made
significant
contributions
to
the
process.

EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.
EPA
provided
public
notice
of
its
intent
to
negotiate
the
all
appropriate
inquiries
proposed
rulemaking
in
the
Federal
Register
on
March
6,
2003.
On
April
14,
2003
EPA
held
a
public
meeting
and
accepted
comment
on
the
Agency's
decision
to
negotiate
the
proposed
rule
and
on
the
Agency's
proposed
membership
for
the
negotiated
rulemaking
committee.
EPA
also
accepted
public
comment
on
the
on­
going
negotiations
of
the
committee
at
each
meeting
of
the
committee.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
1
Excerpt
Text:
We
also
believe
that
we
provide
a
perspective
that
was
not
adequately
represented
on
the
negotiated
rulemaking
committee.
Our
mission
is
to
see
development
go
forward.
We
want
retail
stores,
office
buildings,
and
other
commercial
establishments
to
rise
in
the
place
of
fenced
off
and
litter
strewn
vacant
lots.
We
also
believe
that
idle
brownfield
property
must
be
used
as
the
site
of
affordable
housing.
We
understand
that
concerns
about
public
health
and
environmental
protection
should
be
addressed
as
development
goes
forward.
However,
we
believe
that
in
addressing
these
interests,
the
drafting
process
lost
sight
of
the
goal
of
the
Brownfields
Revitalization
Act
of
2001,
Pub.
Law
107­
118
(
codified
in
scattered
sections
or
42
U.
S.
C.):
encouraging
redevelopment
of
idle
or
abandoned
property.
The
process
of
"
negotiating"
the
rule
through
a
committee
has
also
produced
"
compromise"
language
that
is
vague,
overly
complicated
and
confusingadding
to
uncertainty
about
liability.

Response:
Several
stakeholder
organizations
representing
the
redevelopment
community
were
represented
on
the
negotiated
rulemaking
committee.
The
committee
membership
included
representatives
from
the
National
Brownfields
Association,
the
National
Association
of
Homebuilders,
the
International
Council
of
Shopping
Centers,
the
Real
Estate
Roundtable
and
the
National
Association
of
Industrial
and
Office
Properties.

EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
798
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.
EPA
provided
public
notice
of
its
intent
to
negotiate
the
all
appropriate
inquiries
proposed
rulemaking
in
the
Federal
Register
on
March
6,
2003.
On
April
14,
2003
EPA
held
a
public
meeting
and
accepted
comment
on
the
Agency's
decision
to
negotiate
the
proposed
rule
and
on
the
Agency's
proposed
membership
for
the
negotiated
rulemaking
committee.
EPA
also
accepted
public
comment
on
the
on­
going
negotiations
of
the
committee
at
each
meeting
of
the
committee.
EPA
notes
that
the
commenter's
organization
did
not
provide
comment
on
the
issue
of
adequate
representation
on
the
Negotiated
Rulemaking
Committee
or
on
any
aspect
of
the
rulemaking
negotiations
at
any
time
during
the
process.

Commenter
Organization
Name:
Greenlining
Institute
Comment
Number:
0354
Excerpt
Number:
4
Excerpt
Text:
III.
EPA'S
NEGOTIATED
RULEMAKING
PROCESS
In
carrying
out
the
Congressional
mandate
to
promulgate
clarifying
regulations,
EPA
chose
to
use
the
process
of
negotiated
rulemaking,
rather
than
directly
applying
its
own
policy
and
technical
expertise
to
the
task
of
drafting
regulations.
In
negotiated
rulemaking,
representatives
of
various
non­
governmental
interest
groups
determine
the
content
of
federal
regulations.

Negotiated
rulemaking
is
devoted
largely
to
insulating
federal
administrative
agencies
from
legal
challenges
to
proposed
regulations.
The
theory
is
that
if
all
those
who
have
a
sufficient
interest
and
the
means
to
file
a
legal
challenge
are
sought
out
and
appointed
to
a
negotiated
rulemaking
committee,
the
negotiated
rule
will
probably
not
be
challenged
in
court.
See,
e.
g.,
Administrative
Conference
of
the
United
States,
Negotiated
Rulemaking
Sourcebook
1
(
1985)
(
noting
that
a
negotiated
rule
reduces
"
the
likelihood
of
subsequent
litigation");
National
Research
Council,
Understanding
Risk:
Informing
Decisions
in
a
Democratic
Society
202
(
Paul
C.
Stern
&
Harvey
V.
Fineberg
eds.,
1996)
("
The
purpose
of
regulatory
negotiation
is
to
reduce
legal
challenges
to
new
rules
by
involving
would­
be
adversaries
directly
in
the
rule­
making
process");
Patricia
M.
Wald,
Negotiation
of
Environmental
Disputes:
A
New
Role
for
the
Courts?,
10
Colum.
J.
Envtl.
L.
1,
18
(
1985)
(
noting
that
negotiated
rulemaking
is
designed
to
"
reduce
the
inevitability
of
legal
challenges
to
adopted
rules").

Negotiated
rulemaking
is
conducted
pursuant
to
the
Negotiated
Rulemaking
Act,
5
U.
S.
C.
§
561­
570,
however
the
constitutionality
of
this
statute
has
never
been
tested.
It
may
be
that
the
authority
exercised
by
negotiated
rulemaking
committees
treads
dangerously
close
to
an
unconstitutional
delegation
of
lawmaking
authority
to
private
parties.
See
Schechter
Poultry
Corp.
v.
United
States,
295
U.
S.
495,
537
(
1935)
[
Footnote:
We
understand
that
it
is
not
EPA's
role
to
judge
the
facial
constitutionality
of
federal
statutes.
However,
we
know
that
EPA
takes
seriously
its
responsibility
to
ensure
799
that
it
in
conducting
rulemaking
it
does
not
violate
the
Constitution.
Here,
the
process
got
out
of
hand
and
went
beyond
allowing
the
rulemaking
committee
to
determine
the
content
of
the
rule
at
the
negotiated
rulemaking
stage.
This
rulemaking
also
allowed
the
committee
to
determine
the
content
of
the
concise
statement
of
the
basis
and
purpose
of
the
rule.
We
believe
this
violates
the
Administrative
Procedure
Act,
5
U.
S.
C.
§
553
(
c),
which
requires
the
agency
to
evaluate
any
proposed
rule
and
state
its
basis
and
purpose.
This
requirement
is
not
only
statutory,
but
we
believe
that
allowing
committee
members
to
determine
the
basis
and
purpose
of
an
administrative
rule
would
constitutes
a
delegation
of
lawmaking
authority
to
private
parties
in
violation
of
the
non­
delegation
doctrine.
See
U.
S.
Const.
Art.
1
§
1;
Schechter
Poultry,
295
U.
S.
at
537.
The
Supreme
Court
has
rarely
struck
down
acts
of
Congress
on
non­
delegation
grounds.
However,
federal
courts
have
more
frequently
placed
limiting
constructions
on
statutes
to
preserve
their
constitutionality.
See
e.
g.,
Amalgamated
Meatcutters
v.
Connally,
37
F.
Supp.
737
(
D.
D.
C.
1971);
Fahey
v.
Mallonee,
332
U.
S.
245
(
1947).
We
believe
that
the
Negotiated
Rulemaking
Act
must,
at
a
minimum,
be
limited
to
prevent
committee
members
from
participating
in
determining
the
basis
and
purpose
of
administrative
rules.
We
submit
with
these
comments
audio
recordings
of
public
meetings
conducted
by
EPA
in
St.
Louis,
Missouri
on
September
20
and
21,
2004
as
a
part
of
this
rulemaking
process
in
which
EPA
representatives
acknowledge
the
role
of
committee
members
in
determining
the
basis
and
purpose
of
the
rule.
The
bulk
of
our
comments
focus
on
substantive
concerns
with
the
content
of
the
rule
in
the
hopes
of
eliciting
major
changes
that
will
make
for
an
effective
rule.
However,
we
are
also
deeply
concerned
that
administrative
agencies
act
in
accordance
with
constitutional
and
statutory
principles
of
public
law.
We
believe
the
involvement
of
committee
members
crossed
the
constitutional
limit
for
negotiated
rulemaking
and
was
"
otherwise
not
in
accordance
with
law,"
5
U.
S.
C.
§
706(
2)(
A).
We
believe
that
committee
members
should
have
no
further
involvement,
unless
EPA
decides
to
publicly
reconvene
the
committee
to
consider
changes
to
the
rule.
If
ex
parte
contacts
are
to
continue,
we
request
that
EPA
make
public
a
log
of
all
contacts
with
negotiated
rulemaking
committee
members
after
the
date
of
final
consensus
that
provides
the
date
and
time
of
contact
and
the
content
of
any
communication.
The
ad
hoc
participation
of
members
of
the
negotiated
rulemaking
committee
in
determining
the
basis
and
purpose
of
the
rule
runs
contrary
to
the
agency's
orderly
conduct
of
business.
Further,
this
regulation
involves
hotly
contested
claims
as
to
who
will
profit
from
the
conduct
of
AAI.
As
such,
it
involves
competing
claims
for
a
valuable
privilege
and
the
behind
the
scenes
participation
of
committee
members
raises
serious
questions
of
fairness.
See
generally
Action
for
Childrens
Television
v.
FCC,
564
F.
2d
458
(
D.
C.
Cir.
1977).].
In
any
event,
negotiated
rulemaking
has
received
significant
criticism.
See,
e.
g.,
William
Funk,
Bargaining
Toward
the
New
Millennium,
46
Duke
L.
J.
1351,
1356
(
1997)
(
concluding
that
the
practice
of
negotiated
rulemaking
elevates
privately
bargained
interests
and
subverts
"
an
agency's
pursuit
of
the
public
interest
through
law
and
reasoned
decisionmaking");
Cary
Coglianese,
Assessing
Consensus:
The
Promise
And
Performance
Of
Negotiated
Rulemaking,
46
Duke
L.
J.
1255,
1261(
1997)
(
concluding
that
negotiated
rulemaking
has
a
"
surprisingly
weak
track
record").
Perhaps
most
significant
among
the
critics
of
negotiated
rulemaking
conducted
in
a
way
that
ties
agencies
to
consensus
drafts
are
the
federal
courts:
"
It
sounds
like
an
abdication
of
regulatory
authority
to
the
regulated,
the
full
burgeoning
of
the
interest­
group
state,
and
800
the
final
confirmation
of
the
"
capture"
theory
of
administrative
regulation."
U.
S.
A.
Group
Loan
Services
v.
Riley,
82
F.
3d
708,
714
(
7th
Cir.
1996)
(
Posner,
J.).
Although
the
outcome
of
Group
Loan
Services
did
not
depend
on
Judge
Posner's
assessment
of
negotiated
rulemaking,
the
views
he
expressed
may
ultimately
prove
important
to
the
future
of
negotiated
rulemaking.

Regardless
of
the
ultimate
conclusion
that
the
courts
may
reach
with
regard
to
the
fate
of
negotiated
rulemaking,
we
believe
that
EPA's
choice
of
negotiated
rulemaking
in
this
case
has
contributed
to
the
use
of
vague
language
in
the
proposed
rule.
Negotiation
of
the
terms
of
legal
documents
by
competing
interests
often
results
in
compromise
language
that
is
susceptible
to
competing
interpretations.
Crystal
clear
language,
one
way
or
the
other,
could
not
garner
the
agreement
necessary
to
move
forward
so
the
parties
settle
for
ambiguity
and
accept
the
fact
that
ultimate
resolution
of
contested
issues
will
be
deferred
until
the
terms
of
the
agreement
are
litigated.
This
approach
may
be
appropriate
for
private
parties
negotiating
the
terms
of
a
contract
when
only
their
own
private
interests
are
at
stake.
Congress,
too,
may
at
times
produce
statutes
that
are
less
than
a
model
of
legislative
clarity,
but
that
is
part
of
the
political
process
inherent
in
the
mechanisms
of
the
elected
branch
of
government
vested
by
the
constitution
with
"
All
legislative
Powers."
U.
S.
Const.
art.
I,
§
1.
Federal
administrative
agencies
have
neither
the
freedom
of
private
parties
disposing
of
privately
held
property
to
draft
intentionally
ambiguous
documents
nor
the
latitude
of
the
people's
elected
representatives
to
make
policy
choices
deemed
wise,
though
perhaps
tending
toward
generalities.

Where,
as
here,
Congress
has
directed
an
agency
to
draft
regulations
that
"
increase
certainty
and
provide
clarity,"
S.
Rep.
107­
2
at
14,
the
agency
may
not
punt
to
a
negotiated
rulemaking
committee
that
produces
intentionally
vague
compromise
language
that
must
ultimately
be
resolved
by
the
courts.
This
is
emphatically
so
because
the
point
of
the
All
Appropriate
Inquiry
rule
is
to
"
provide
protection
to
persons
who
wish
to
purchase
contaminated
property
without
incurring
liability"
by
removing
uncertainty
over
potential
litigation.
Id.
at
11.
The
agency
"
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress."
Chevron
U.
S.
A.
v.
Natural
Resources
Defense
Council,
467
U.
S.
837,
843
(
1984).
Here,
the
overriding
command
of
Congress
is
that
the
rule
provide
clear
and
certain
liability
protection.
We
begin
our
detailed
textual
analysis
with
that
command
in
mind,
as
well
the
baseline
of
relative
certainty
that
was
in
place
before
EPA
began
this
process.

Response:
The
commenter
is
incorrect
in
asserting
that
members
of
the
negotiated
rulemaking
committee
determined
the
basis
and
purpose
of
the
proposed
rule.
Congress
determined
the
basis
and
purpose
of
the
rule.
EPA
and
the
negotiated
rulemaking
committee
developed
the
proposed
rule
around
the
criteria
provided
by
Congress
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act.
In
fact,
a
review
of
the
minutes
of
each
of
the
meetings
of
the
Negotiated
Rulemaking
Committee
shows
that
the
agenda
and
process
for
the
Committee
negotiations
directly
followed
the
criteria
established
by
Congress.
The
commenter
may
be
confused
with
regard
to
the
statutory
purpose
for
the
all
appropriate
inquiries
regulation.
The
commenter
states
that
the
801
purpose
of
the
rulemaking
is
"
to
provide
protection
to
persons
who
wish
to
purchase
contaminated
property
without
incurring
liability
by
removing
uncertainty
over
potential
litigation."
The
final
rule
on
all
appropriate
inquiries
is
just
one
criteria
established
by
Congress
that
property
owners
must
meet
to
establish
a
potential
defense
against
Superfund
liability.
The
conduct
of
all
appropriate
inquiries
alone
does
not
provide
protection
from
liability
or
certainty
over
potential
litigation.
In
fact,
nothing
in
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
provides
protection
against
potential
litigation.
The
liability
protections
provided
under
the
statute
for
bona
fide
prospective
purchasers,
innocent
landowners,
and
contiguous
property
owners
establish
a
number
of
criteria
that
if
met,
may
provide
a
landowner
with
a
defense
to
liability
under
CERCLA
if
the
landowner
is
sued
by
EPA
or
a
third
party
to
recover
costs
for
clean
up
and
damages
associated
with
a
release
from
a
property
owned
or
operated
by
the
landowner.

EPA
notes
for
the
commenter
that
although
EPA
used
the
negotiated
rulemaking
process
for
the
development
of
the
proposed
rule,
EPA
developed
the
final
rule.
In
addition,
EPA
is
the
sole
author
of
the
preambles
to
the
proposed
and
final
rules.
The
final
rule
was
developed
by
EPA
after
careful
consideration
of
all
public
comments
received
in
response
to
the
proposed
rule.

EPA
notes
that
during
the
negotiated
rulemaking
process
for
the
development
of
the
proposed
rule
on
all
appropriate
inquiries,
EPA
provided
many
opportunities
for
public
comment
and
input
on
the
content
of
the
proposed
rule
and
the
Committee's
negotiations.
EPA
placed
all
materials
developed
and
used
by
the
Committee
in
the
public
docket.
EPA
announced
all
meetings
of
the
Committee
in
the
Federal
Register
and
invited
the
general
public
to
attend
each
meeting.
EPA
accepted
written
public
comment
on
all
aspects
of
the
proposed
rule
and
the
Committee's
proceedings
throughout
the
process.
On
every
day
of
every
Committee
meeting,
EPA
set
time
aside
for
the
general
public
to
provide
comment
and
input
to
the
Committee
members.
Once
the
Committee
reached
consensus
on
the
proposed
rule
and
EPA
developed
the
preamble
to
the
proposed
rule,
the
proposed
rule
was
published
in
the
Federal
Register.
EPA
provided
for
a
90­
day
public
comment
period
and
held
three
public
meetings
to
solicit
public
comment
on
the
proposed
rule.
The
proposed
rule
was
negotiated
by
a
Committee
of
25
members
who
represented
a
balance
of
stakeholders
with
interest
in
the
outcome
of
the
regulation.
However,
at
all
points
in
the
regulatory
development
process,
EPA
provided
ample
opportunity
for
the
members
of
the
general
public
to
provide
input
and
comment.

Commenter
Organization
Name:
USWAG
Comment
Number:
0367
Excerpt
Number:
1
Excerpt
Text:
Before
addressing
the
substance
of
the
proposed
rule,
US
WAG
would
like
to
commend
EPA
for
pursuing
the
regulatory
negotiation
("
reg­
neg")
process
despite
previously
unsuccessful
reg­
negs.
EPA's
reluctance
to
attempt
the
reg­
neg
process
for
most
of
the
past
decade
has
been
quite
understandable.
It
therefore
took
considerable
courage
on
802
EPA's
part
to
place
the
fate
of
this
rulemaking
in
the
hands
of
a
diverse
and
often
contentious
Reg­
Neg
Committee
and
then
to
make
unanimity
or
consensus
among
the
25
committee
members
the
decision­
making
threshold
for
each
issue
under
consideration.
Without
the
hard
work
of
the
EPA
staff
from
the
Office
of
Brownfields
Cleanup
&
Redevelopment
­
and
in
particular,
the
skill
and
patience
of
Patricia
Overmeyer
­
in
helping
to
mold
a
consensus,
there
would
not
have
been
as
well
thought­
out
a
proposed
rule
as
the
one
now
before
the
public
for
comment.

Although
most
of
the
Reg­
Neg
Committee's
recommendations
are
sound
and
merit
support,
the
reg­
neg
process
does
not
trump
the
provisions
of
the
Administrative
Procedure
Act
("
APA")
that
assign
a
crucial
role
in
the
rulemaking
process
to
the
regulated
community
and
the
general
public
through
the
notice
and
comment
process.
APA,
5
U.
S.
C.
§
553(
c).
Whether
the
initial
regulatory
development
occurs
in
a
Reg­
Neg
Committee
consisting
of
a
diverse
group
of
interested
parties
or
in
an
EPA
workgroup,
once
a
proposed
rule
has
been
published
in
the
Federal
Register
and
public
comment
has
been
solicited,
the
rulemaking
process
is
the
same
and
EPA
is
obliged
to
consider
serious
comment
on
its
proposal.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
negotiated
rulemaking
process.
The
commenter
is
correct
that
once
a
proposed
rule
is
published
in
the
Federal
Register,
the
rulemaking
process
is
governed
in
the
same
manner
as
all
other
proposed
rules
under
the
Administrative
Procedures
Act.
EPA
developed
the
final
rule
after
careful
consideration
of
all
public
comments
received
in
response
to
the
proposed
rule.
The
Negotiated
Rulemaking
Committee
had
no
involvement
in
the
development
of
the
final
rule.

Commenter
Organization
Name:
Ruffin,
Shirley
Comment
Number:
0372
Excerpt
Number:
1
Excerpt
Text:
We
would
like
to
commend
the
EPA
for
involving
all
stakeholders
in
the
process
of
developing
specific
regulatory
requirements
for
conducting
all
appropriate
inquiries.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
negotiated
rulemaking
process.

Commenter
Organization
Name:
MBA
Comment
Number:
0401
Excerpt
Number:
1
Excerpt
Text:
The
MBA
expresses
our
full
support
and
endorsement
of
the
Environmental
Protection
Agency's
("
EPA")
decision
to
utilize
the
negotiated
rulemaking
process
to
develop
AAI.
MBA
would
also
like
to
congratulate
the
entire
advisory
committee
for
reaching
a
803
unanimous,
consensus­
based
draft
regulation.

MBA
thanks
the
EPA
for
choosing
them
to
participate
in
the
negotiated
rulemaking
process
and
encourages
EPA
to
utilize
this
effective
practice
in
the
future,
where
appropriate.

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
negotiated
rulemaking
process.

Commenter
Organization
Name:
Freeman
&
Giler
Comment
Number:
0417
Excerpt
Number:
1
Excerpt
Text:
We
commend
the
USEPA
for
its
efforts
to
develop
an
AAI
Rule
using
the
negotiated
rule­
making
process,
and
we
believe
that
our
limited
number
of
comments
and
their
narrow
focus
are
a
testament
to
the
success
of
this
negotiated
process.
That
being
said,
we
strongly
suggest
that
USEPA
consider
the
following
comments:

Response:
EPA
thanks
the
commenter
for
the
stated
support
of
the
negotiated
rulemaking
process.

Commenter
Organization
Name:
West
Berkeley
Association
Comment
Number:
0430
Excerpt
Number:
1
Excerpt
Text:
We
understand
that
the
proposed
rule
was
drafted
in
conformance
with
the
consensus
reached
by
a
negotiated
rulemaking
committee
convened
by
EPA
to
represent
the
various
stakeholders
that
would
be
affected
by
the
rule.
However,
not
only
were
the
interests
of
existing
small
property
owners
not
represented
on
the
committee,
the
convening
report
indicates
that
committee
members
did
not
feel
that
they
were
obligated
to
protect
the
interests
of
small
existing
owners:
"
They
do
not
see
the
standard
as
providing
a
'
pass'
to
existing
owners,
but
rather
immunizing
new
owners."

At
page
8,
when
discussing
the
categories
of
stakeholders
who
should
be
represented
in
the
rulemaking
process,
the
convening
assessment
does
not
consider
the
interest
of
small
property
owners.
The
following
organizations
were
given
seats
on
the
rulemaking
committee
to
represent
private
sector
commercial
development
interests:
The
Real
Estate
Roundtable,
National
Association
of
Industrial
and
Office
Properties,
and
the
International
Council
of
Shopping
Centers.
However,
these
organizations
are
all
members
of
each
other
and
to
the
extent
that
they
represent
the
interests
of
existing
owners
they
are
heavily
weighted
toward
large
institutional
entities.

Response:
The
all
appropriate
inquiries
regulation
sets
standards
for
prospective
property
owners
in
804
assessing
the
potential
environmental
conditions
at
a
property
prior
to
purchasing
a
property.
In
that
sense,
the
regulations
do
not
affect
"
existing
property
owners"
(
small
or
otherwise).
Therefore,
EPA
believes
that
the
commenter
may
have
taken
the
quoted
passage
from
the
convening
report
out
of
context.
The
quote
corresponds
to
a
statement
regarding
the
effect
of
the
all
appropriate
inquiries
regulations
upon
existing
property
owners,
not
small
businesses
that
may
be
purchasing
property.
None
of
the
members
of
the
Negotiated
Rulemaking
Committee
negotiated
with
the
intent
of
representing
the
interests
of
only
large
entities.
In
fact
the
potential
cost
impacts
upon
all
business
interests
were
a
point
of
discussion
throughout
the
negotiations.
In
addition,
the
Negotiated
Rulemaking
Committee
included
representatives
from
the
National
Association
of
Development
Organizations
and
the
Center
for
Public
Environmental
Oversight
who
often
spoke
to
the
interests
and
needs
of
small
and
rural
businesses
and
organizations.

EPA
notes
that
during
the
negotiated
rulemaking
process
for
the
development
of
the
proposed
rule
on
all
appropriate
inquiries,
EPA
provided
many
opportunities
for
public
comment
and
input
on
the
content
of
the
proposed
rule
and
the
Committee's
negotiations.
EPA
placed
all
materials
developed
and
used
by
the
Committee
in
the
public
docket.
EPA
announced
all
meetings
of
the
Committee
in
the
Federal
Register
and
invited
the
general
public
to
attend
each
meeting.
EPA
accepted
written
public
comment
on
all
aspects
of
the
proposed
rule
and
the
Committee's
proceedings
throughout
the
process.
On
every
day
of
every
Committee
meeting,
EPA
set
time
aside
for
the
general
public
to
provide
comment
and
input
to
the
Committee
members.
Once
the
Committee
reached
consensus
on
the
proposed
rule
and
EPA
developed
the
preamble
to
the
proposed
rule,
the
proposed
rule
was
published
in
the
Federal
Register.
EPA
provided
for
a
90­
day
public
comment
period
and
held
three
public
meetings
to
solicit
public
comment
on
the
proposed
rule.
The
proposed
rule
was
negotiated
by
a
Committee
of
25
members
who
represented
a
balance
of
stakeholders
with
interest
in
the
outcome
of
the
regulation.
However,
at
all
points
in
the
regulatory
development
process,
EPA
provided
ample
opportunity
for
the
members
of
the
general
public
to
provide
input
and
comment.

Commenter
Organization
Name:
Fedunyszyn,
Zoriana
Comment
Number:
0443
Excerpt
Number:
1
Excerpt
Text:
First
of
all,
as
both
a
Realtor
and
an
appraiser,
I
am
concerned
that
the
National
Association
of
Realtors(
r),
REALTORS(
r)
Commercial
Alliance,
and
the
Appraisal
Professions
(
Appraisal
Institute,
NAIFA,
ASFRMA,
ASA)
were
not
included
in
the
Negotiated
Rulemaking
Commit
Response:
EPA
notes
that
the
National
Association
of
Realtors
served
as
a
resource
member
to
the
Negotiated
Rulemaking
Committee
and
provided
valuable
input
to
the
Committee
negotiations
throughout
the
rulemaking
development
process.
805
EPA
also
notes
that
during
the
negotiated
rulemaking
process
for
the
development
of
the
proposed
rule
on
all
appropriate
inquiries,
EPA
provided
many
opportunities
for
public
comment
and
input
on
the
content
of
the
proposed
rule
and
the
Committee's
negotiations.
EPA
placed
all
materials
developed
and
used
by
the
Committee
in
the
public
docket.
EPA
announced
all
meetings
of
the
Committee
in
the
Federal
Register
and
invited
the
general
public
to
attend
each
meeting.
EPA
accepted
written
public
comment
on
all
aspects
of
the
proposed
rule
and
the
Committee's
proceedings
throughout
the
process.
On
every
day
of
every
Committee
meeting,
EPA
set
time
aside
for
the
general
public
to
provide
comment
and
input
to
the
Committee
members.
Once
the
Committee
reached
consensus
on
the
proposed
rule
and
EPA
developed
the
preamble
to
the
proposed
rule,
the
proposed
rule
was
published
in
the
Federal
Register.
EPA
provided
for
a
90­
day
public
comment
period
and
held
three
public
meetings
to
solicit
public
comment
on
the
proposed
rule.
The
proposed
rule
was
negotiated
by
a
Committee
of
25
members
who
represented
a
balance
of
stakeholders
with
interest
in
the
outcome
of
the
regulation.
However,
at
all
points
in
the
regulatory
development
process,
EPA
provided
ample
opportunity
for
the
members
of
the
general
public
to
provide
input
and
comment.

Commenter
Organization
Name:
Brodsky,
Michael
Comment
Number:
PM­
0127­
0004
Excerpt
Number:
1
Excerpt
Text:
Outside
of
a
question
about
process
and
not
about
the
substance
of
the
rule,
and
if
you
can't
answer
that
today,
then
perhaps
this
is
just
something
to
think
about,
this
being
a
negotiated
rule,
which
negotiated
rule
making
is
somewhat
new,
part
of
the
purpose
is
to
solicit
input
from
as
many
people
in
the
industry
knowledgeable
as
is
possible,
and
part
of
the
purpose
is
to
get
the
buy­
in.

EPA,
in
its
literature
somewhere,
I
can't
remember
exactly
where,
says
that
you
find
that
negotiated
rules
are
challenged
less
often.
So
if
you
do,
as
someone
does
submit
comments
with
changes
that
seem
to
be
a
good
idea,
I
think
you
probably
have
kind
of
a
fine
line
for
them.
So
you
want
to
keep
the
committee
members
who
bought
in
on
board,
but
on
the
other
hand,
you
want
to
respond
to
public
comment.

So
I'm
just
wondering
if
you
will
reconvene
the
committee
sometime
after
the
comment
period
closes,
or
informally
pole
them,
or
recirculate,
or
how
you
intend
to
walk
that
line.

Response:
The
Negotiated
Rulemaking
Committee
only
was
involved
in
the
development
of
the
proposed
rule.
EPA
developed
the
final
rule
after
careful
consideration
of
all
public
comments
received
in
response
to
the
proposed
rule.
After
the
Negotiated
Rulemaking
Committee
reached
consensus
on
recommended
regulatory
language
for
the
proposed
rule,
EPA
convened
no
additional
meetings
of
the
Committee
members.
The
Committee
was
not
involved
in
the
rulemaking
process
after
publication
of
the
proposed
rule.
806
Commenter
Organization
Name:
Greenwood,
Harriet
Comment
Number:
PM­
0127­
0008
Excerpt
Number:
3
Excerpt
Text:
In
looking
at
the
makeup
of
the
negotiated
rule
making
committee,
it
appeared
to
me
that
the
life
science
disciplines
and
toxicology
were
perhaps
under­
represented.
I'm
sure
it
was
difficult
to
represent
every
possible
branch
that
might
be
involved,
but
also,
the
academic
institutions
involved
in
the
education
of
environmental
professionals,
I
think
were
not
at
the
table,
as
far
as
I
could
see,
and
I
hope
that
they'll
be
included
in
the
comment
period,
because
their
input
on
this
topic
is
very
important.

Response:
Although
educators
of
life
science
and
toxicology
disciplines
were
not
identified
as
one
of
the
stakeholders
best
representing
those
constituencies
directly
affected
by
the
all
appropriate
inquiries
rulemaking,
four
members
of
the
Negotiated
Rulemaking
Committee
represented
the
environmental
professional
business
sector.
Academic
institutions
may
have
a
valuable
role
to
play
in
educating
individuals
who
may
choose
to
become
environmental
professionals
who
conduct
all
appropriate
inquiries
investigations,
however
EPA
did
not
identify
academic
institutions
as
a
primary
stakeholder
in
the
regulatory
development
process.

EPA
notes
that
the
Federal
Advisory
Committee
Act
and
the
Negotiated
Rulemaking
Act
require
federal
government
agencies
that
use
the
negotiated
rulemaking
process
for
the
development
of
proposed
rules
to
assemble
committees
that
have
a
balanced
membership
of
affected
stakeholders.
In
addition,
federal
agencies
are
required
to
provide
public
notice
of
their
intent
to
negotiate
a
rulemaking
and
must
give
public
notice
of
the
proposed
membership
of
the
committee.
The
public
can
then
comment
on
both
the
proposal
to
negotiate
and
the
committee
membership.
EPA
provided
public
notice
of
its
intent
to
negotiated
the
all
appropriate
inquiries
proposed
rulemaking
in
the
Federal
Register
on
March
6,
2003.
On
April
14,
2003
EPA
held
a
public
meeting
and
accepted
comment
on
the
Agency's
decision
to
negotiated
the
proposed
rule
and
on
the
Agency's
proposed
membership
for
the
negotiated
rulemaking
committee.
EPA
also
accepted
public
comment
on
the
on­
going
negotiations
of
the
committee
at
each
meeting
of
the
committee.
EPA
notes
that
the
commenter's
organization
did
not
provide
comment
on
the
issue
of
adequate
representation
on
the
Negotiated
Rulemaking
Committee
or
on
any
aspect
of
the
rulemaking
negotiations
at
any
time
during
the
process.
807
6.8
EPA
Should
Perform
More
Outreach
and
Education
on
AAI
and
the
Proposed
Rule
Commenter
Organization
Name:
Herin
Comment
Number:
0329
Excerpt
Number:
4
Excerpt
Text:
Most
users
of
environmental
due
diligence
services
who
I've
spoken
with
in
the
last
year
have
little
to
no
idea
that
this
AAI
rule
development
process
has
been
going
on.
In
fact,
as
I
review
the
comments
posted
on
EPA's
EDOCKET
website,
very
few
users
seem
to
be
represented.
Given
that
this
AAI
rule
will
profoundly
affect
property
transactions,
I
suggest
the
EPA
invest
more
heavily
in
public
outreach/
education
(
ongoing,
on
an
annual
basis).
The
goal
would
be
to
help
ensure
that
users
are
informed
of
the
AAI
rule
and
can
easily
learn
more
about
it,
including
at
a
minimum:
the
protections
afforded
by
AAI;
the
definition
of
an
EP;
and
the
basic
elements
of
the
AAI
process.

Response:
EPA
did
announce
and
hold
three
public
meetings
on
the
proposed
rule.
In
addition,
EPA
staff
attended
many
conferences
and
publicly­
attended
meetings
to
speak
about
the
proposed
rule.
EPA
also
announced
the
availability
of
the
proposed
rule
on
the
EPA
website
and
distributed
fact
sheets
on
the
proposed
standards.
EPA
will
continue
these
public
outreach
efforts
once
the
final
rule
is
published
in
the
Federal
Register.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
1
Excerpt
Text:
1)
There
is
an
incorrect
citation
on
page
52545
of
the
proposed
rule's
preamble.
In
the
left­
hand
column,
EPA
states
"
Today's
proposed
rule
does
not
address
the
requirements
of
CERCLA
Section
101(
35)(
B)(
i)(
I)
for
what
constitutes
'
reasonable
steps.'"
The
citation
should
actually
read
"
101(
35)(
B)(
i)(
II)."
As
it
reads
now,
EPA
is
saying
that
the
proposed
rule
does
not
address
the
statutory
requirements
for
standards
and
practices
to
demonstrate
that
a
person
has
performed
"
all
appropriate
inquiries,"
which
in
fact
the
rule
does
address.
What
the
rule
actually
"
does
not
address"
is
the
continuing
obligations
of
the
property
owner
after
purchase,
as
included
in
paragraph
(
II)
of
the
statutory
section.

2)
The
background
section
of
the
preamble
to
the
proposed
rule
does
not
adequately
or
clearly
state
the
difference
between
AAI
and
"
reasonable
steps."
Please
explain
this
difference
in
more
detail.

Response:
EPA
apologizes
for
the
incorrect
cite
in
the
preamble
to
the
proposed
rule.
The
citation
is
corrected
in
the
preamble
for
the
final
rule.
808
The
preamble
to
the
final
rule
addresses
the
differences
between
the
requirement
to
perform
all
appropriate
inquiries,
or
an
environmental
site
assessment,
prior
to
purchasing
a
property
and
the
requirements
to
conduct
reasonable
steps
to
stop
on­
going
releases,
after
purchasing
a
property,
in
section
II.
D.
These
requirements
also
were
discussed
in
detail
in
section
II.
D.
of
the
preamble
to
the
proposed
rule.
Additional
guidance
on
the
"
reasonable
steps"
and
the
continuing
obligations
(
or
post
ownership
requirements)
for
retaining
protection
from
CERCLA
liability
is
provided
in
the
EPA
document
titled
"
Interim
Guidance
Regarding
Criteria
Landowners
Must
Meet
in
Order
to
Qualify
for
Bona
Fide
Prospective
Purchaser,
Contiguous
Property
Owner,
or
Innocent
Landowner
Limitations
on
CERCLA
Liability
(
Common
Elements,
2003)."
This
document
is
included
in
the
public
docket
for
the
final
rule
and
is
available
on
the
EPA
website.

Commenter
Organization
Name:
FAA
Comment
Number:
0334
Excerpt
Number:
2
Excerpt
Text:
1)
Will
EPA
consider
leasing
a
property
for
a
set
period
of
time
to
be
the
same
as
ownership
for
the
purposes
of
this
regulation
and
the
innocent
landowner
defense?
Please
provide
more
information
on
how
this
rule
will
affect
leasees
in
the
future.

Response:
CERCLA
does
not
afford
persons
who
lease
property
the
same
level
of
defense
against
liability
as
it
does
property
owners.
In
section
101(
40)
of
CERCLA,
a
bona
fide
prospective
purchaser
is
defined
as
"
a
person
(
or
tenant
of
a
person)
that
acquires
ownership
of
a
facility
after
the
date
of
the
enactment 
."
[
emphasis
added].
To
date,
EPA
has
interpreted
the
definition
to
mean
that
a
tenant's
status
with
regard
to
the
bona
fide
prospective
purchaser
provision
is
dependent
upon
the
status
of
the
property
owner.
EPA
notes
that
there
is
little
or
no
case
law
with
regard
to
this
aspect
of
the
statute.

Commenter
Organization
Name:
McKerr,
Thomas
Comment
Number:
0347
Excerpt
Number:
1
Excerpt
Text:
Section
II
(
Background),
D,
2.
Contiguous
Property
Owner.
Section
states
that
"
To
qualify
as
a
contiguous
property
owner,
a
landowner
must
have
no
knowledge
of
contamination
(
I
assume
that
this
refers
to
contamination
on
his
contiguous
property)
prior
to
acquisition
and
meet
all
of
the
criteria
set
forth
(
in
the
cite).
But
what
if
he
does
have
knowledge
of
contamination
on
his
Property
that
originated
on
a
site
contiguous
this
property,
i.
e.
from
off
site.
An
explanation
of
what
category
does
he
fit
into
would
be
appropriate.
Would
the
landowner
qualify
as
a
BFPP?
And
what
standard
of
"
knowledge"
is
applied.
This
section
will
discourage
a
potential
buyer
of
a
contiguous
property
from
performing
a
Phase
II
assessment
if
no
liability
protection
is
available
for
a
contiguous
809
property
owner
that
identifies
a
release.
How
does
the
identification
of
a
"
threatened
release"
on
an
adjoining
site
affect
his
status?

Response:
The
CERCLA
statute
at
section
107(
q)(
1)(
C)
clarifies
that
any
person
that
does
not
qualify
as
a
[
contiguous
property
owner]
because
the
person
had,
or
had
reason
to
have,
knowledge
at
the
time
of
acquisition
of
the
property,
that
the
property
was
or
could
be
contaminated
by
a
release
or
threatened
release
of
one
or
more
hazardous
substances
from
other
real
property
not
owned
or
operated
by
the
person,
may
qualify
as
a
bona
fide
prospective
purchaser
under
section
101(
40)
of
CERCLA.

Commenter
Organization
Name:
McLeod,
Jeff
Comment
Number:
0444
Excerpt
Number:
1
Excerpt
Text:
While
I
believe
the
intent
of
adding
categories
of
protection
is
a
good
one,
it
appears
that
the
bona
fide
prospective
purchaser
and
contiguous
property
owner
defenses
have
greater
requirements
than
does
the
innocent
landowner.
One
of
the
reasons
developers
are
not
developing
brownfields
is
the
fear
of
being
held
responsible
for
clean
up
of
the
site.
I
don't
see
where
the
bona
fide
prospective
purchaser
defense
provides
them
with
any
relief
from
liability
and
appears
to
place
a
greater
burden
on
them,
due
to
the
statutory
requirements,
than
does
the
innocent
landowner
defense.

Each
of
the
defenses
requires
the
property
owner
to
take
reasonable
steps
to
stop
continuing
releases,
prevent
any
threatened
releases
and
prevent
or
limit
human,
environmental,
or
natural
resource
exposures
to
any
hazardous
substances
released
on
or
from
the
property.
I
can
foresee
circumstances
where
buried
or
subterranean
contamination
could
exist,
but
not
be
detected
during
document
reviews
and
interviews.
This
requirement
would
continue
to
limit
purchaser/
developer
interest
in
brownfields
sites
as
they
can
potentially
be
held
liable
for
cleaning
up
contamination
that
they
did
not
cause
or
have
reason
to
know
about.
It
would
seem
that
once
AAI
has
been
completed
for
a
given
property,
provided
that
the
AAI
did
not
identify
any
evidence
suggestive
of
potential
subsurface
contamination
or
contain
recommendations
for
Phase
II
sampling,
that
the
purchaser
not
be
held
liable
for
clean
up
of
the
property.

Response:
It
will
be
up
to
a
court
to
decide
whether
or
not
a
party
is
entitled
to
a
defense
to
CERCLA
liability
as
an
innocent
landowner,
a
bona
fide
prospective
purchaser,
or
a
contiguous
landowner.
EPA
notes
that
any
person
may
be
protected
from
CERCLA
liability
as
an
innocent
landowner
if
that
person
can
demonstrate
to
a
court
that
the
person
did
not
know,
"
and
had
no
reason
to
know"
of
the
contamination
for
which
the
person
may
be
accused
of
being
liable.
Failure
to
identify
a
release
or
threatened
release
during
the
conduct
of
all
appropriate
inquiries
may
not
be
an
adequate
defense
to
liability
if
a
release
or
contamination
is
not
addressed
by
the
property
owner
and
is
later
discovered
by
a
third
party,
particularly
if
the
property
owner
cannot
demonstrate
that
all
810
appropriate
inquiries
were
conducted
in
compliance
with
the
provisions
of
the
regulatory
requirements.

EPA
also
notes
for
the
commenter
that
the
innocent
landowner
defense
under
CERCLA,
as
amended
by
the
Brownfields
Amendments
(
at
Section
101(
35)(
B)(
i)(
II)(
aa))
requires
the
property
owner
to
take
reasonable
steps
to
stop
any
continuing
releases.
The
requirements
for
making
the
innocent
landowner
defense,
as
well
as
all
of
the
statutory
criteria
for
claiming
the
bona
fide
prospective
purchaser
and
contiguous
property
owner
liability
protections
are
statutorily
imposed
and
not
within
the
scope
of
the
final
rule.
811
6.9
Tribes
May
Not
Have
Capacity/
Resources
to
Meet
the
AAI
Requirements
Commenter
Organization
Name:
Cloud,
Sharon
L.
Fire
Comment
Number:
0108
Excerpt
Number:
1
Excerpt
Text:
On
the
surface
this
may
seem
like
a
good
idea,
requiring
Tribes
to
have
an
"
Environmental
Professional",
however
it's
unfair.
There
is
only
a
small
percentage
of
our
people
who
are
fortunate
enough
to
attend
an
institute
of
higher
learning,
at
that
an
even
smaller
percentage
who
graduate
with
an
Associates
Degree,
an
even
smaller
percentage
who
graduate
with
a
Bachelor's
Degree.
Now,
after
that
imagine
the
percentage
of
Native
Americans
who
have
graduated
with
a
Bachelor's
Degree
in
the
specific
fields
you
would
like
to
require
in
this
amendment.
We
may
not
have
Degree's,
but
by
no
means
are
we
uneducated
or
incapable
of
taking
inventory
of,
assessing
and
clean­
up
of
Brownfield
sites
on
our
land.
I
feel
this
is
amendment
is
not
only
unfair,
it's
also
discriminating
against
the
people
who
taught
your
people
land
stewardship.
We
are
fully
capable
of
doing
the
job
necessary
to
complete
the
projects,
without
going
outside
of
our
tribe
for
an
"
Environmental
Professional".

Response:
In
the
final
rule,
the
definition
of
an
environmental
professional,
for
the
purposes
of
overseeing
the
conduct
of
all
appropriate
inquiries
investigations
includes
individuals
who
have
ten
years
of
relevant
full
time
experience
in
carrying
out
all
appropriate
inquiries
and
related
activities.
Individuals
do
not
have
to
have
a
college
degree
to
qualify
as
an
environmental
professional
if
they
have
ten
years
of
full
time
relevant
experience.
In
addition,
the
proposed
rule
provides
that
individuals
who
are
trained
and
certified
by
the
Bureau
of
Indian
Affairs
to
conduct
environmental
site
assessments
and
who
have
three
years
of
relevant
full
time
experience
meet
the
definition
of
an
environmental
professional
in
the
final
rule.

Commenter
Organization
Name:
Warner,
Todd
Comment
Number:
0312
Excerpt
Number:
1
Excerpt
Text:
Currently
KBIC
has
three
environmental
staff
in
the
natural
resource
department.
The
Realty
Department
consists
of
one
person.
Of
these
four
people,
one
person
will
have
the
qualifications
of
an
Environmental
Professional
(
EP)
as
outlined
in
the
proposed
rule.
Other
Tribes
I
am
acquainted
with
have
both
fewer
staff
and/
or
staff
without
the
education
and/
or
experience
to
qualify
as
an
EP.
This
situation
is
different
than
that
of
a
consulting
firm
or
State
government
where
"
teams"
of
environmental
staff
with
a
range
of
qualification
levels
are
present.

Given
the
fact
that
re­
acquisition
of
Tribal
lands
is
important
to
KBIC
(
and
other
Tribal
Governments),
and,
given
that
purchase
agreements
that
depend
upon
the
results
of
an
812
environmental
assessment
often
have
a
30­
60
day
time
period
associated
with
them,
it
becomes
critical
that
KBIC
be
able
to
complete
an
AAI
with
existing
staff.
Consultants
are
not
reliably
available
on
short
notice,
and,
if
available,
can
add
significant
cost
to
a
potential
land
purchase.
I
have
estimated
the
additional
cost
to
Keweenaw
Bay
Indian
Community
for
having
to
hire
a
consultant
to
meet
the
requirements
of
the
proposed
AAI
rule
as
approximately
$
2,000
­
$
4,000
per
property.
This
is
a
significant
cost
for
the
Community.

Given
the
above,
I
would
strongly
encourage
the
U.
S.
EPA
to
provide
assistance
to
Tribes
with
no
capacity,
or
limited
capacity
for
meeting
AAI
requirements.
I
would
like
to
see
some
outreach
by
regional
EPA
offices
to
Tribal
Governments
regarding
this
issue,
and
discussions
of
potential
mechanisms
for
EPA
assistance
to
Tribes
to
ensure
that
Tribal
Governments
are
able
to
fulfill
the
requirements
contained
in
this
proposed
rule,
and
fulfill
their
own
goals
of
re­
acquisition
of
ancestral
lands.

Response:
In
the
final
rule,
the
definition
of
an
environmental
professional,
for
the
purposes
of
overseeing
the
conduct
of
all
appropriate
inquiries
investigations
includes
individuals
who
have
ten
years
of
relevant
full
time
experience
in
carrying
out
all
appropriate
inquiries
and
related
activities.
Individuals
do
not
have
to
have
a
college
degree
to
qualify
as
an
environmental
professional
if
they
have
ten
years
of
experience.
In
addition,
the
proposed
rule
provides
that
individuals
who
are
trained
and
certified
by
the
Bureau
of
Indian
Affairs
to
conduct
environmental
site
assessments
and
who
have
three
years
of
relevant
full
time
experience
meet
the
definition
of
environmental
professional
in
the
final
rule.

Commenter
Organization
Name:
Kane
Environmental
Comment
Number:
0317
Excerpt
Number:
4
Excerpt
Text:
We
understand
that
tribal
records
must
be
reviewed,
but
are
the
tribes
being
given
additional
federal
funding
to
establish
records
centers
and
staff?

Response:
Tribal
records
must
be
reviewed
if
the
property
being
purchased
is
located
on
tribal
or
near
tribal­
owned
lands.
Under
the
authorities
of
section
128
of
CERCLA,
EPA
does
provide
some
funding
to
recognized
Indian
tribes
to
establish
or
enhance
a
tribal
response
program.

If
a
prospective
landowner
and
the
environmental
professional
acting
on
behalf
of
the
prospective
landowner
cannot
obtain
tribal
records
even
after
good
faith
efforts
are
made
to
obtain
the
records,
the
missing
information
should
be
noted
in
the
all
appropriate
inquiries
report
as
a
data
gap.
The
significance
of
the
missing
information
on
the
environmental
professional's
ability
to
render
an
opinion
regarding
the
environmental
conditions
at
a
property
also
must
be
documented.
813
6.10
Other
Commenter
Organization
Name:
Johnson,
Robert
L
Comment
Number:
0094
Excerpt
Number:
1
Excerpt
Text:
Some
of
the
premises
in
the
article
concerning
'
Environmental
Professional'
(
CE,
Oct.
2004)
are
wrong.
The
current
ATSM
Standard
on
Environmental
Site
Assessment
does
not
force
anyone
to
"
conduct
sampling
unnecessarily
...
simply
because
the
standard
calls
for
them."
The
Standard
does
not
involved
sampling.
In
fact,
Section
11.9
of
the
Standard
specifically
states
"
recommendation
for
Phase
II
testing,
remediation
techniques,
etc.
are
beyond
the
scope
of
this
practice."

By
removing
standard
practice,
the
assessment
process
would
literally
place
the
livelihood
of
the
environmental
professional
responsible
for
assessment
on
the
line
(
in
jeopardy).
Environmental
companies
view
themselves
as
"
deep
pockets"
and
would
be
forced
to
characterize
as
many
properties
as
possible
as
being
contaminated.
Very
few
environmental
companies
have
been
sued
for
characterizing
"
clean"
properties
as
"
contaminated."
Many
have
been
sued
for
characterizing
a
site
as
being
clean
when
later
perceived
contamination
is
indicated
at
the
site.
PCBs
have
been
detected
in
the
polar
ice
caps.
A
single
piece
of
(
petroleum­
based)
asphalt
in
a
sample
can
give
the
perception
of
an
entire
site
being
contaminated.
Virtually
every
property
can
be
perceived
as
being
"
contaminated."

"
More
flexible"
assessments
will
not
lead
environmental
companies
to
generate
more
professional
and
higher
quality
assessments.
Assessors
are
in
conflict
because
any
they
themselves
are
in
line
to
implement
the
additional
sampling
or
remediation
to
address
potential
contamination
at
the
site.
Even
highly
regarded
professionals
can
easily
rationalize
the
need
for
additional
sampling,
investigation,
remediation,
etc.,
so
as
to
err
on
the
side
of
caution.
Rather,
in
order
to
protect
against
potential
liability
(
and
realize
increased
remediation
revenue),
the
companies
will
increase
effort
to
find
as
many
properties
as
possible
to
be
perceived
as
being
contaminated,
the
very
definition
of
a
"
brownfield."

A
solution
might
be
for
the
findings
of
an
environmental
assessment
to
be
reviewed
by
a
third­
party
Licensed
Professional
Engineer
for
compliance
to
a
Standard.
(
There
is
much
more
to
an
environmental
assessment
than
geology.)
This
would
relieve
the
assessor
of
assuming
the
liability
of
possible
contamination
on
the
site,
accepting
only
the
liability
that
Standard
practice
was
met.
Similarly,
the
Licensed
Professional
Engineer
would
not
be
held
liable
for
the
performance
of
the
assessment
or
any
undetected
contamination,
only
that
the
assessment
was
in
compliance
with
the
Standard.

Response:
EPA
agrees
with
the
commenter
that
the
existing
ASTM
E1527­
2000
standard
does
not
require
sampling
and
analysis.
The
final
rule
setting
federal
standards
for
all
appropriate
814
inquiries
also
does
not
require
sampling
and
analysis
to
be
conducted
as
part
of
the
all
appropriate
inquiries
investigation.
The
final
rule
does
note
that
sampling
and
analysis
may
be
helpful
in
addressing
data
gaps
under
certain
circumstances.
The
decision
of
whether
or
not
to
undertake
sampling
and
analysis
is
up
to
the
prospective
property
owner
and
may
be
based
on
the
advice
provided
by
an
environmental
professional.

The
issue
of
third
party
evaluations
of
property
assessments
is
beyond
the
scope
of
the
final
rule.
Property
owners
should
determine
their
need
for
additional
advice
and
consultation
regarding
sampling
and
analyses
or
other
appropriate
investigations
in
light
of
the
statutory
requirements
for
retaining
the
CERCLA
liability
protections
after
a
property
is
acquired.
