[Federal Register Volume 69, Number 165 (Thursday, August 26, 2004)]
[Proposed Rules]
[Pages 52542-52581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19429]



[[Page 52541]]

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Part II





Environmental Protection Agency





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40 CFR Part 312



Standards and Practices for All Appropriate Inquiries and Notice of 
Public Meeting To Discuss Standards and Practices for All Appropriate 
Inquiries; Proposed Rules

  Federal Register / Vol. 69, No. 165 / Thursday, August 26, 2004 / 
Proposed Rules  

[[Page 52542]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[SFUND-2004-0001; FRL-7806-2]
RIN 2050-AF04


Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) today is proposing 
federal standards and practices for conducting all appropriate 
inquiries as required under Sections 101(35)(B)(ii) and (iii) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA). The proposed rule would establish specific regulatory 
requirements and standards for conducting all appropriate inquiries 
into the previous ownership, uses, and environmental conditions of a 
property for the purposes of meeting the all appropriate inquiries 
provisions necessary to qualify for certain landowner liability 
protections under CERCLA. The standards and practices proposed today 
also would be applicable to persons conducting site characterization 
and assessments with the use of grants awarded under CERCLA Section 
104(k)(2)(B).

DATES: Comments on today's proposed rule must be submitted on or before 
October 25, 2004. Comments postmarked after this date will be marked 
``late'' and may not be considered. Any person may request a public 
hearing on this proposal by filing a request by September 10, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. SFUND-
2004-0001, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    3. E-mail: Comments may be sent by electronic mail to 
[email protected], /Attention Docket ID No. SFUND-2004-0001.
    4. Mail: Send comments to: OSWER Docket, Environmental Protection 
Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460, Attention Docket ID No. SFUND-2004-0001. In addition, please 
mail a copy of your comments on the information collection provisions 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. 
NW., Washington, DC 20503.
    5. Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West Building, Room B102, 1301 Constitution Ave., NW., Washington, DC, 
Attention Docket ID No. SFUND-2004-0001. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. SFUND-2004-
0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.epa.gov/edocket, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA EDOCKET and the Federal 
regulations.gov Web sites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit EDOCKET on-line or see the 
Federal Register of May 31, 2002 (67 FR 38102). For additional 
instructions on submitting comments, go to Unit I.C. of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the EPA Docket Center, EPA West Building, Room B102, 1301 
Constitution Avenue, NW., Washington, DC. This Docket Facility is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OSWER Docket is (202) 566-
0276.
    If you would like to file a request for a public hearing on this 
proposed rule, please submit your request to Ms. Linda Garczynski at: 
Office of Brownfields Cleanup and Redevelopment (5105T), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, or via e-mail at [email protected].

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA/Superfund/EPCRA/UST Call Center at (800) 424-9346 (toll free) or 
TDD (800) 553-7672 (hearing impaired). In the Washington, DC 
Metropolitan area, call (703) 412-3323 or TDD (703) 412-9810. For 
detailed information on specific aspects of the proposed rule, contact 
Patricia Overmeyer of EPA's Office of Brownfields Cleanup and 
Redevelopment at (202) 566-2774 or at [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Who Potentially May Be Affected by Today's Proposed Rule?

    If promulgated as proposed, this regulation may affect most 
directly those persons and businesses purchasing commercial property or 
any property that will be used for commercial purposes and who may, 
after purchasing the property, seek to claim protection from CERCLA 
liability for releases or threatened releases of hazardous substances. 
Under section 101(35)(B) of CERCLA, as amended by the Small Business 
Liability Relief and Brownfields Redevelopment Act (Pub. L. 107-118, 
115 stat. 2356, ``the Brownfields Amendments'') such persons and 
businesses are required to conduct all appropriate inquiries prior to 
or on the date in which the property is acquired. Prospective property 
owners who do not conduct all

[[Page 52543]]

appropriate inquiries prior to obtaining ownership of the property may 
lose their ability to claim protection from CERCLA liability as an 
innocent landowner, bona fide prospective purchaser, or contiguous 
property owner.
    In addition, today's proposal will affect any party who receives a 
brownfields grant awarded under CERCLA Section 104(k)(2)(B) and uses 
the grant money to conduct site characterization or assessment 
activities. This includes state, local and tribal governments that 
receive brownfields site assessment grants for the purpose of 
conducting site characterization and assessment activities. Such 
parties are required under CERCLA Section 104(k)(2)(B)(ii) to conduct 
such activities in compliance with the standards and practices 
established by EPA for the conduct of all appropriate inquiries. EPA 
notes that today's rule also may affect other parties who apply for 
brownfields grants under the provisions of Section 104(k), since such 
parties may have to qualify as a bona fide prospective purchaser to 
ensure compliance with the statutory prohibitions on the use of grant 
funds under Section 104(k)(4)(B)(i). Any party seeking liability 
protection as a bona fide prospective purchaser, including eligible 
brownfields grantees, must conduct all appropriate inquiries prior to 
acquiring a property.
    The background document, ``Economic Impacts Analysis for the All 
Appropriate Inquiries Proposed Regulation,'' presents a comprehensive 
analysis of all potentially impacted entities. This document is 
available in the docket established for today's proposed rule. A 
summary of potentially affected businesses is provided in the table 
below.
    Our aim in the table below is to provide a guide for readers 
regarding entities likely to be directly regulated or indirectly 
affected by this action. This action, however, may affect other 
entities not listed in the table. To determine whether you or your 
business is regulated or affected by this action, you should examine 
the proposed regulatory language amending CERCLA. This language is 
found at the end of this Federal Register notice. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section entitled FOR FURTHER 
INFORMATION CONTACT.

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

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. SFUND-2004-0001. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to today's 
action. Although a part of the official docket, the public docket does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Documents in the 
official public docket are listed in the index list in EPA's electronic 
public docket and comment system, EDOCKET. Documents may be available 
either electronically or in hard copy. Electronic documents may be 
viewed through EDOCKET. Hard copy documents may be viewed at the EPA 
Docket Center, EPA West, Room B102, 1301 Constitution Avenue NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OSWER Docket is (202) 566-
0276.
    2. Electronic Access. You may access the Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr. Comments on the proposed rule 
can be submitted through the federal e-rulemaking portal, http://www.regulations.gov.
    An electronic version of the public docket also is available 
through EPA's electronic public docket and comment system, EDOCKET. You 
may use EDOCKET at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the public 
docket, and access those documents in the public docket that are 
available electronically. Once in the system, select ``search,'' then 
key in the appropriate docket identification number.
    Certain types of information will not be placed in EDOCKET. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Docket materials 
that are not available electronically may be viewed at the docket 
facility identified in Section I.B. EPA intends to work toward 
providing electronic access to all of the publicly available docket 
materials through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

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

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

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    b. Submitting CBI. Do not submit information that you consider to 
be confidential business information (CBI) electronically through EPA's 
electronic public docket or by e-mail. Send or deliver information 
identified as CBI only to the following address: CERCLA CBI Document 
Control Officer, Office of Solid Waste and Emergency Response (5101T), 
U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention: Docket ID No. SFUND-2004-0001. You may claim information 
that you submit to EPA as CBI by marking any part or all of that 
information as CBI (if you submit CBI on disk or CD ROM, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is CBI). 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR, Part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.
    c. Tips for Preparing Your Comments. You may find the following 
suggestions helpful for preparing your comments:
    i. Identify the rulemaking by docket number and other identifying 
information (e.g., subject heading, Federal Register date and page 
number).
    ii. Explain your views as clearly as possible.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used to support your views.
    v. If you estimate potential burden or costs, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternative.
    vii. Make sure to submit your comments by the comment period 
deadline identified.

Contents of This Proposed Rule

I. Statutory Authority
II. Background
    A. What Is the Intent of Today's Proposed Rule?
    B. What Is ``All Appropriate Inquiries?''
    C. What Are the Current Standards for All Appropriate Inquiries?
    D. What Are the Liability Protections Established Under the 
Brownfields Amendments?
    E. What Criteria Did Congress Establish for the All Appropriate 
Inquiries Standard?
    F. How Did EPA Go About Developing the Proposed Rule?
    G. What Is Negotiated Rulemaking?
    H. What Was the Process that EPA Followed in Establishing and 
Conducting the Negotiated Rulemaking Committee?
    I. What Are the Benefits of Negotiated Rulemaking?
    J. Who Was Represented on the Negotiated Rulemaking Committee?
III. Detailed Description of Today's Proposed Rule
    A. What Is the Purpose and Scope of the Proposed Rule?
    B. To Whom Is the Rule Applicable?
    C. Does the Proposed Rule Include New Reporting or Disclosure 
Obligations?
    D. What Are the Proposed Qualifications for an Environmental 
Professional?
    E. References
    F. What Is Included in ``All Appropriate Inquiries?''
    G. What Are the Proposed Requirements for Interviewing Past and 
Present Owners, Operators, and Occupants?
    H. What Are the Proposed Requirements for Reviews of Historical 
Sources of Information?
    I. What Are the Proposed Requirements for Searching for Recorded 
Environmental Cleanup Liens?
    J. What Are the Proposed Requirements for Reviewing Federal, 
State, Tribal, and Local Government Records?
    K. What Are the Proposed Requirements for Visual Inspections of 
the Subject Property and Adjoining Properties?
    L. What Are the Proposed Requirements for the Inclusion of 
Specialized Knowledge or Experience on the Part of the 
``Defendant?''
    M. What Are the Proposed Requirements for the Relationship of 
the Purchase Price to the Value of the Property, if the Property Was 
Not Contaminated?
    N. What Are the Proposed Requirements for Commonly Known or 
Reasonably Ascertainable Information About the Property?
    O. What Are the Proposed Requirements for ``the Degree of 
Obviousness of the Presence or Likely Presence of Contamination at 
the Property, and the Ability To Detect the Contamination by 
Appropriate Investigation?'
IV. Requests for Public Comments
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Statutory Authority

    These regulations are proposed under the authority of Section 
101(35)(B) of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (42 U.S.C. 9601), as amended, most 
importantly by the Small Business Liability Relief and Brownfields 
Redevelopment Act.

II. Background

A. What Is the Intent of Today's Proposed Rule?

    The intent of today's proposed rule is to propose regulations 
setting federal standards and practices for the conduct of ``all 
appropriate inquiries.'' This regulatory action was initiated in 
response to legislative amendments to the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA). On January 11, 
2002, President Bush signed the Small Business Liability Relief and 
Brownfields Revitalization Act (Pub. L. 107-118, 115 stat. 2356, ``the 
Brownfields Amendments''). The Brownfields Amendments amend CERCLA by 
providing funds to assess and clean up brownfields sites, clarifying 
CERCLA liability provisions for certain landowners, and providing 
funding to enhance state and tribal clean up programs. Today's 
regulatory action proposes standards and practices for the conduct of 
``all appropriate inquiries,'' a key provision of the Brownfields 
Amendments. Subtitle B of Title II of the Brownfields Amendments 
revises CERCLA Section 101(35), clarifying the requirements necessary 
to establish the innocent landowner defense. In addition, the 
Brownfields Amendments add protections from CERCLA liability for bona 
fide prospective purchasers and contiguous property owners who meet 
certain statutory requirements.
    Each of the CERCLA liability provisions for innocent landowners, 
bona fide prospective purchasers, and contiguous property owners, 
requires that, among other requirements, persons

[[Page 52545]]

claiming the liability protections conduct all appropriate inquiries 
into prior ownership and use of a property prior to or at the time at 
which a person acquires a property. The law requires EPA to develop 
regulations establishing standards and practices for how to conduct all 
appropriate inquiries and promulgate the standards within two years of 
enactment of the Amendments. Congress included in the Brownfields 
Amendments a list of criteria that the Agency must address in the 
regulations establishing standards and practices for conducting all 
appropriate inquiries Sec.  101(35)(2)(B)(ii) and (iii). The 
Brownfields Amendments also require that parties receiving a federal 
brownfields grant awarded under CERCLA Section 104(k)(2)(B) conduct 
site characterizations and assessments and must conduct these 
activities in accordance with the standards and practices for all 
appropriate inquiries.
    The regulations proposed today only address the all appropriate 
inquiries provisions of CERCLA Sections 101(35)(B)(i)(I) and 
101(35)(B)(ii) and (iii). Today's proposed rule does not address the 
requirements of CERCLA Section 101(35)(B)(i)(I) for what constitutes 
``reasonable steps.''

B. What Is ``All Appropriate Inquiries?''

    An essential step in real property transactions is evaluating a 
property for potential environmental contamination and assessing 
potential liability for contamination present at the property. The 
process for assessing properties for the presence of environmental 
contamination often is referred to as ``environmental due diligence,'' 
or ``environmental site assessment.'' The Comprehensive Environmental 
Response Compensation and Liability Act (CERCLA) or Superfund, provides 
for a similar, but legally distinct, process referred to as ``all 
appropriate inquiries.''
    Under CERCLA, persons may be held strictly liable for cleaning up 
hazardous substances at properties that they either currently own or 
operate or owned or operated in the past. Strict liability under CERCLA 
means that liability for environmental contamination could be assigned 
based solely on property ownership.
    In 1986, the Superfund Amendments and Reauthorization Act ( Pub. L. 
No. 99-499, 100 stat. 1613, ``SARA'') amended CERCLA by creating an 
``innocent landowner'' defense to CERCLA liability. The new Section 
101(35)(B) of CERCLA provided a defense to CERCLA liability, for those 
persons who could demonstrate, among other requirements, that they 
``did not know and had no reason to know'' prior to purchasing a 
property that any hazardous substance that is the subject of a release 
or threatened release was disposed of on, in, or at the property. Such 
persons, to demonstrate that they had ``no reason to know'' must have 
undertaken, prior to, or at the time of acquisition of the property, 
``all appropriate inquiries'' into the previous ownership and uses of 
the property consistent with good commercial or customary practice. The 
2002 Brownfields Amendments added potential liability protections for 
``contiguous property owners'' and ``bona fide prospective purchasers'' 
who also must demonstrate they conducted all appropriate inquiries, 
among other requirements, to benefit from the liability protection.

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

    As part of the Brownfields Amendments to CERCLA, Congress 
established interim standards for the conduct of all appropriate 
inquiries. The federal interim standards established by Congress became 
effective on January 11, 2002. In the case of properties purchased 
after May 31, 1997, the interim standards include the procedures of the 
American Society for Testing and Materials (ASTM) Standard E1527-97 
(entitled ``Standard Practice for Environmental Site Assessment: Phase 
1 Environmental Site Assessment Process''). In the case of persons who 
purchased property prior to May 31, 1997 and who are seeking to 
establish an innocent landowner defense or qualify as a contiguous 
property owner, the interim standards require that such persons must 
establish, among other statutory requirements, that they did not know 
and had no reason to know of releases or threatened releases to the 
property before the date they acquired the property. To establish they 
did not know and had no reason to know of releases or threatened 
releases, persons who purchased property prior to May 31, 1997 must 
demonstrate that they carried out all appropriate inquiries into the 
previous ownership and uses of the property in accordance with 
generally accepted good commercial and customary standards and 
practices.
    In the case of property acquired by a non-governmental entity or 
non-commercial entity for residential or other similar uses, the 
current interim standards for all appropriate inquiries may not be 
applicable. For those cases, the Brownfields Amendments to CERCLA 
establish that a ``facility inspection and title search that reveal no 
basis for further investigation shall be considered to satisfy the 
requirements'' for all appropriate inquiries. In addition, such 
properties are not within the scope of today's proposed rule.
    The interim standards remain in effect until EPA promulgates 
federal regulations establishing standards and practices for conducting 
all appropriate inquiries.
    On May 9, 2003, EPA published a final rule (68 FR 24888) clarifying 
that for the purposes of achieving the all appropriate inquiries 
standards of CERCLA Section 101(35)(B), and until the Agency 
promulgates regulations implementing standards for all appropriate 
inquiries, the procedures for persons who purchase property on or after 
May 31, 1997 may include either the procedures provided in ASTM E1527-
2000, entitled ``Standard Practice for Environmental Site Assessment: 
Phase I Environmental Site Assessment Process,'' or the earlier 
standard cited by Congress in the Brownfields amendments, ASTM E1527-
97.
    Today's notice is a proposed rule and as such has no effect upon 
the current interim standards for all appropriate inquiries established 
by Congress in the Brownfields Amendments and clarified by EPA in the 
May 9, 2003 final rule. However, once the Agency promulgates a final 
rule establishing federal regulations containing the standards and 
practices for conducting all appropriate inquiries, the interim 
standard will no longer be the operative standard for conducting all 
appropriate inquiries. Following the effective date of a new final 
regulation, the standards and practices included as the final 
regulation will replace the current interim standards for all 
appropriate inquiries.
    The National Technology Transfer and Advancement Act (NTTAA), 
directs agencies to use technical standards that are developed or 
adopted by voluntary consensus standards bodies (unless their use would 
be inconsistent with applicable law or otherwise impractical). We 
considered ASTM E1527-2000, for use in this rule and determined that 
the standard is inconsistent with applicable law because it does not 
meet the statutory criteria necessary to achieve the purpose of the 
rule. Section V.I of today's proposed rule provides additional detail 
on the basis for our interpretation with respect to this alternative. 
We invite public comment on our determination that the ASTM E1527-2000 
Phase I Environmental Site Assessment Standard is inconsistent with 
applicable law.

[[Page 52546]]

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

    The Brownfields Amendments provide important liability protections 
for landowners who qualify as contiguous property owners, bona fide 
prospective purchasers, or innocent landowners. To meet the statutory 
requirements for any of these landowner liability protections, a 
landowner must meet certain threshold requirements and satisfy certain 
continuing obligations. To qualify as a bona fide prospective 
purchaser, contiguous property owner, or innocent landowner, a person 
must perform ``all appropriate inquiries'' before acquiring the 
property. Bona fide prospective purchasers and contiguous property 
owners also must demonstrate that they are not potentially liable or 
affiliated with any other person that is potentially liable for 
response costs at the property. In the case of contiguous property 
owners, the landowner claiming to be a contiguous property owner also 
must demonstrate that he did not cause, contribute, or consent to any 
release or threatened release of hazardous substances. To meet the 
statutory requirements for a bona fide prospective purchaser, a 
property owner must have acquired a property subsequent to any disposal 
activities involving hazardous substances at the property.
    Continuing obligations required under the statute include complying 
with land use restrictions and not impeding the effectiveness or 
integrity of institutional controls; taking ``reasonable steps'' with 
respect to hazardous substances affecting a landowner's property to 
prevent releases; providing cooperation, assistance and access to EPA, 
a state, or other party conducting response actions or natural resource 
restoration at the property; complying with CERCLA information requests 
and administrative subpoenas; and providing legally required notices. 
For a more detailed discussion of these threshold and continuing 
requirements please see EPA, Interim Guidance Regarding Criteria 
Landowners Must Meet in Order To Qualify for Bona Fide Prospective 
Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations 
on CERCLA Liability (Common Elements, 2003). A copy of this document is 
available in the docket for today's proposed rule.
1. Bona Fide Prospective Purchaser
    The Brownfields Amendments added the bona fide prospective 
purchaser provision at CERCLA Section 107(r). The provision provides 
protection from CERCLA liability, and limits EPA's recourse for 
unrecovered response costs to a lien on property for the increase in 
fair market value attributable to EPA's response action. To meet the 
statutory requirements for a bona fide prospective purchaser, a person 
must meet the requirements set forth in CERCLA Section 101(40). A bona 
fide prospective purchaser must have bought property after January 11, 
2002 (the date of enactment of the Brownfields Amendments). A bona fide 
prospective purchaser may purchase property with knowledge of 
contamination after performing all appropriate inquiries, provided the 
property owner meets or complies with all of the other statutory 
requirements set forth in CERCLA Section 101(40). Conducting all 
appropriate inquiries alone does not provide a landowner with 
protection against CERCLA liability. Landowners who want to qualify as 
bona fide prospective purchasers must comply with all of the statutory 
requirements. The statutory requirements include, without limitation, 
that the landowner must:
     Have acquired a property after all disposal activities 
involving hazardous substances at the property;
     Provide all legally required notices with respect to the 
discovery or release of any hazardous substances at the property;
     Exercise appropriate care by taking reasonable steps to 
stop continuing releases, prevent any threatened future release, and 
prevent or limit human, environmental, or natural resources exposure to 
any previously released hazardous substance;
     Provide full cooperation, assistance, and access to 
persons that are authorized to conduct response actions or natural 
resource restorations;
     Comply with land use restrictions established or relied on 
in connection with a response action;
     Not impede the effectiveness or integrity of any 
institutional controls;
     Comply with any CERCLA request for information or 
administrative subpoena; and
     Not be potentially liable, or affiliated with any other 
person who is potentially liable for response costs for addressing 
releases at the property.
    Persons claiming to be bona fide prospective purchasers should keep 
in mind that failure to identify an environmental condition or identify 
a release or threatened release of a hazardous substance on, at, in or 
to a property during the conduct of all appropriate inquiries does not 
relieve a landowner from complying with the other post-acquisition 
statutory requirements for obtaining the liability protections. 
Landowners must comply with all the statutory requirements to obtain 
the liability protection. For example, an inability to identify a 
release or threatened release during the conduct of all appropriate 
inquiries does not negate the landowner's responsibilities under the 
statute to take reasonable steps to stop a release, prevent a 
threatened release, and prevent exposure to a release or threatened 
release. None of the other statutory requirements for the bona fide 
prospective purchaser liability protection is contingent upon the 
results of the conduct of all appropriate inquiries.
2. Contiguous Property Owner
    The Brownfields Amendments added a new contiguous property owner 
provision at CERCLA Section 107(q). This provision excludes from the 
definition of ``owner'' or ``operator'' under CERCLA Section 107(a)(1) 
and (2) a person who owns property that is ``contiguous to, or 
otherwise similarly situated with respect to, and that is or may be 
contaminated by a release or threatened release of hazardous substances 
from'' property owned by someone else. To qualify as a contiguous 
property owner, a landowner must have no knowledge of contamination 
prior to acquisition and meet all of the criteria set forth in CERCLA 
Section 107(q)(1)(A), which include, without limitation:
     Not causing, contributing, or consenting to the release or 
threatened release;
     Not being potentially liable nor affiliated with any other 
person who is potentially liable for response costs at the property;
     Taking reasonable steps to stop continuing releases, 
prevent any threatened release, and prevent or limit human, 
environmental, or natural resource exposure to any hazardous substances 
released on or from the landowner's property;
     Providing full cooperation, assistance, and access to 
persons that are authorized to conduct response actions or natural 
resource restorations;
     Complying with land use restrictions established or relied 
on in connection with a response action;
     Not impeding the effectiveness or integrity of any 
institutional controls;
     Complying with any CERCLA request for information or 
administrative subpoena;
     Providing all legally required notices with respect to 
discovery or release of any hazardous substances at the property.

[[Page 52547]]

    The contiguous property owner liability protection ``protects 
parties that are essentially victims of pollution incidents caused by 
their neighbor's actions.'' S. Rep. No. 107-2, at 10 (2001). Contiguous 
property owners must perform all appropriate inquiries prior to 
purchasing property. However, performing all appropriate inquiries in 
accordance with the regulatory requirements alone is not sufficient to 
assert the liability protections afforded under CERCLA. Property owners 
must fully comply with all of the statutory requirements to be afforded 
the contiguous property owner liability protection. Persons who know, 
or have reason to know, that the property is or could be contaminated 
prior to purchasing a property cannot qualify for the liability 
protection as a contiguous property owner, but may be entitled to bona 
fide prospective purchaser status.
    Persons claiming to be contiguous property owners should keep in 
mind that failure to identify an environmental condition or identify a 
release or threatened release of a hazardous substance on, at, in or to 
a property during the conduct of all appropriate inquiries, does not 
relieve a landowner from complying with the other statutory 
requirements for obtaining the contiguous landowner liability 
limitation. Landowners must comply with all the statutory requirements 
to qualify for the liability protections. For example, an inability to 
identify a release or threatened release during the conduct of all 
appropriate inquiries does not negate the landowner's responsibilities 
under the statute to take reasonable steps to stop the release, prevent 
a threatened release, and prevent exposure to the release or threatened 
release. None of the other statutory requirements for the contiguous 
property owner liability protection is contingent upon the results of 
the conduct of all appropriate inquiries.
3. Innocent Landowner
    The Brownfields Amendments also clarify the innocent landowner 
affirmative defense. To qualify as an innocent landowner, a person must 
conduct all appropriate inquiries and meet all of the statutory 
requirements. The requirements include, without limitation:
     Having no reason to know that any hazardous substance 
which is the subject of a release or threatened release was disposed of 
on, in, or at the facility;
     Providing full cooperation, assistance and access to 
persons authorized to conduct response actions at the property;
     Complying with any land use restrictions and not impeding 
the effectiveness or integrity of any institutional controls;
     Taking reasonable steps to stop continuing releases, 
prevent any threatened release, and prevent or limit human, 
environmental, or natural resource exposure to any hazardous substances 
released on or from the landowner's property;
    To succeed in an innocent landowner liability defense, a property 
owner must demonstrate compliance with CERCLA Section 107(b)(3) as 
well. Such persons must establish, by a preponderance of the evidence:
     That the act or omission that caused the release or threat 
of release of hazardous substances and the resulting damages were 
caused by a third party with whom the person does not have employment, 
agency, or a contractual relationship;
     The person exercised due care with respect to the 
hazardous substance concerned, taking into consideration the 
characteristics of such hazardous substance, in light of all relevant 
facts and circumstances;
     Took precautions against foreseeable acts or omissions of 
any such third party and the consequences that could foreseeable result 
from such acts or omissions.
    Like contiguous property owners, innocent landowners must perform 
all appropriate inquiries prior to acquiring a property and cannot 
know, or have reason to know, of contamination to qualify for this 
landowner liability protection. Persons claiming to be innocent 
landowners also should keep in mind that failure to identify an 
environmental condition or identify a release or threatened release of 
a hazardous substance on, at, in or to a property during the conduct of 
all appropriate inquiries, does not relieve or exempt a landowner from 
complying with the other statutory requirements for making the innocent 
landowner defense. Landowners must comply with all the statutory 
requirements to obtain the defense. For example, an inability to 
identify a release or threatened release during the conduct of all 
appropriate inquiries does not negate the landowner's responsibilities 
under the statute to take reasonable steps to stop the release, prevent 
a threatened release, and prevent exposure to the release or threatened 
release. None of the other statutory requirements for the innocent 
landowner defense is contingent upon the results of the conduct of all 
appropriate inquiries.

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

    Congress included in the Brownfields Amendments a list of criteria 
that the Agency must include in the regulations establishing standards 
and practices for conducting all appropriate inquiries. These criteria 
are set forth in CERCLA Section 101(35)(2)(B)(ii) and include:
     The results of an inquiry by an environmental 
professional.
     Interviews with past and present owners, operators, and 
occupants of the facility for the purpose of gathering information 
regarding the potential for contamination at the facility.
     Reviews of historical sources, such as chain of title 
documents, aerial photographs, building department records, and land 
use records, to determine previous uses and occupancies of the real 
property since the property was first developed.
     Searches for recorded environmental cleanup liens against 
the facility that are filed under federal, state, or local law.
     Reviews of federal, state, and local government records, 
waste disposal records, underground storage tank records, and hazardous 
waste handling, generation, treatment, disposal, and spill records, 
concerning contamination at or near the facility.
     Visual inspections of the facility and of adjoining 
properties.
     Specialized knowledge or experience on the part of the 
defendant.
     The relationship of the purchase price to the value of the 
property, if the property was not contaminated.
     Commonly known or reasonably ascertainable information 
about the property.
     The degree of obviousness of the presence or likely 
presence of contamination at the property, and the ability to detect 
the contamination by appropriate investigation.
    In addition, Congress instructed EPA, in the Brownfields Amendments 
to develop regulations establishing standards and practices for 
conducting all appropriate inquiries in accordance with generally 
accepted good commercial and customary standards and practices.

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

    Consistent with the Negotiated Rulemaking Act of 1996, 5 U.S.C. 561 
et seq. (The Negotiated Rulemaking Act), EPA decided to use the 
negotiated rulemaking process to develop the proposed federal standards 
for conducting all appropriate inquiries.

[[Page 52548]]

The most important reason for using the regulatory negotiation process 
for developing the proposed federal standards is that all stakeholders, 
when consulted, strongly supported a consensus-based negotiated 
rulemaking effort. In addition, the Agency determined that a negotiated 
rulemaking committee composed of stakeholders familiar with good 
commercial and customary standards and practices, as well as the 
technical, scientific, and environmental policy issues relevant to 
environmental due diligence, would provide great benefit to the Agency 
in its attempt to fulfill the Congressional mandate. EPA also believed 
that a regulatory negotiation process would be less adversarial than if 
the Agency were to develop a proposed rule using its internal 
regulatory development process and that a regulatory negotiation could 
result in a proposed rule that would effectively reflect Congressional 
intent.

G. What Is Negotiated Rulemaking?

    Using negotiated rulemaking to develop the proposed rule is 
fundamentally different than the Agency's internal rulemaking 
development process. Negotiated rulemaking is a process in which a 
proposed rule is developed by a committee composed of representatives 
of those interests that will be significantly affected by the rule. The 
process is started by the Agency's careful identification of the 
interests potentially affected by the rulemaking under consideration. 
To help in this identification process, the Agency publishes a notice 
in the Federal Register, that identifies a preliminary list of 
potentially affected interests and requests public comment on that 
list. Following receipt of the comments, the Agency establishes a 
formal advisory committee under the Federal Advisory Committee Act 
(FACA). A balanced membership representing these various interests is 
invited by the Agency to participate in the advisory committee. 
Representation on the committee may be direct, that is, each member 
represents a specific interest, or may be indirect, through coalitions 
of parties formed for this purpose. The Agency is a member of the 
committee representing the interests of all of the federal government.
    Meetings of the committee are announced in the Federal Register and 
are open to observation by members of the public. Decisions of the 
committee are made by consensus, which generally means an agreement of 
all committee members that they can accept the provisions of the 
proposed rule when taken as a whole package. A neutral professional, or 
facilitator, impartially assists the negotiated rulemaking committee by 
applying proven consensus building techniques to the committee's 
activities. This professional facilitator serves several roles, 
including convening the process, facilitating meetings and mediating 
committee negotiations.
    The negotiated rulemaking process involves a mutual education of 
the negotiating parties by each other on the practical concerns about 
the impact of each approach considered by the committee. All committee 
members participate in seeking to reach a consensus that resolves the 
concerns of the other members, rather than leaving it up to EPA to 
bridge different points of view. A key principle of negotiated 
rulemaking is that agreement is by consensus of all the members. Thus, 
no one interest or group of interests is able to control the process. 
The Negotiated Rulemaking Act defines consensus as ``the unanimous 
concurrence among interests represented on a negotiated rulemaking 
committee, unless the committee itself unanimously agrees to use a 
different definition.'' 5 U.S.C. 562(2).
    When a regulatory negotiation advisory committee reaches consensus 
on the provisions of a proposed rule, the Agency generally uses such 
consensus language as the basis of its proposed rule, which is 
published in the Federal Register. This provides the required public 
notice and allows for a public comment period. Committee members agree 
to support the proposed rule as published if there are no substantive 
changes from the consensus provisions. Other interested parties retain 
their rights to comment, participate in an informal hearing (if 
requested) and judicial review. EPA anticipates, however, that the pre-
proposal consensus agreed upon by a negotiated rulemaking committee 
will effectively address most major issues prior to publication of a 
proposed rule.

H. What Was the Process that EPA Followed in Establishing and 
Conducting the Negotiated Rulemaking Committee?

    During the fall of 2002, EPA initiated the negotiated rulemaking 
process by identifying appropriate stakeholder groups and soliciting 
advice and input from experienced public and private sector users of 
similar standards. EPA retained an expert facilitator to contact 
parties potentially affected by the all appropriate inquiries rule to 
determine whether or not stakeholders were interested in participating 
in a negotiated rulemaking process and determine the potential for 
stakeholder issues to be successfully addressed through a regulatory 
negotiation. Following an evaluation of stakeholder interest and input, 
the facilitator found that there was sufficient enthusiasm among 
stakeholders for a negotiated rulemaking process and almost all 
stakeholders that EPA identified and the facilitator interviewed 
expressed a belief that potential issues and differences between 
interested parties could be successfully addressed and negotiated 
through the regulatory negotiation process. A description of the issues 
raised by identified stakeholders and a list of interested 
stakeholders, as well as the findings of the facilitator are contained 
in the final report entitled Convening Assessment Report on the 
Feasibility of a Negotiated Rulemaking Process to Develop the All 
Appropriate Inquiry Standard Required under the Small Business 
Liability Relief and Brownfields Revitalization Act. A copy of this 
final report is included in the regulatory docket for today's notice.
    Following the convening process, the Agency determined that the use 
of a regulatory negotiation process in this matter was appropriate. The 
Agency then identified stakeholders and interest groups who potentially 
would be affected by the rulemaking under consideration. After 
identifying an initial list of potential interests, the Agency 
published a ``Notice of Intent to Negotiate'' in the Federal Register 
on March 6, 2003 (68 FR 10675) which identified the Agency's 
preliminary list of interests and requested public comment on that list 
of potential interests or stakeholder groups to include in the 
negotiated rulemaking process. Following receipt of public comments in 
response to that notice and the conduct of a public hearing to obtain 
public input, the Agency established a negotiated rulemaking advisory 
committee under the provisions of the Federal Advisory Committee Act 
(FACA). The advisory committee included a balanced membership 
representing the various interests identified either by EPA or by 
public commenters as having a significant stake in the outcome of the 
rulemaking. The Agency then published in the Federal Register a notice 
announcing the establishment of the Negotiated Rulemaking Committee on 
All Appropriate Inquiries (the Negotiated Rulemaking Committee) on 
April 7, 2003 (68 FR 16747).
    The Agency developed a charter for the Negotiated Rulemaking 
Committee defining the purpose, scope and duration of the committee in 
accordance with the provisions of the FACA. The

[[Page 52549]]

primary purpose of the committee was to negotiate a consensus on the 
terms of a proposed rule setting standards and practices for the 
conduct of all appropriate inquiries. The committee was composed of 25 
members and each member of the committee represented a specific 
stakeholder interest. EPA had one seat on the committee. The Agency 
member on the committee represented the Federal government's own set of 
interests. A neutral facilitator assisted the Negotiated Rulemaking 
Committee by applying proven consensus building techniques to the 
Committee's activities. This facilitator served several roles including 
convening the process, facilitating meeting discussions, and mediating 
Committee negotiations.
    The Agency's negotiated rulemaking committee for this proposed rule 
was formed and operated in full compliance with the requirements of the 
Federal Advisory Committee Act (FACA) and in a manner consistent with 
the requirements for the Negotiated Rulemaking Act of 1990. Committee 
members established formal ground rules for the conduct of their 
negotiations. Among other things, the ground rules provide that 
Committee decisions would be made by consensus, Committee agreements 
would be tentative until the Committee reached final consensus on 
regulatory language, and Committee members could not withdraw their 
consensus once a final consensus was reached by the Committee. All 
meetings of the Negotiated Rulemaking Committee were open public 
meetings. Members of the public, including representatives from 
organizations not represented on the Committee were welcomed to observe 
Committee discussions during each meeting. All written products 
developed by the Committee were made available to the public on EPA's 
Web site and in the Agency's rulemaking docket. Time was set aside 
during each meeting of the Committee to hear comments from the public. 
Members of the public also had the opportunity to provide written 
comments to the negotiated rulemaking committee on the topics 
considered and discussed by the Committee. The openness of the 
negotiated rulemaking process allowed for continued review of the 
Committee proceedings by the public and allowed the Committee to give 
full consideration to input offered by the public during its 
deliberations.
    The Negotiated Rulemaking Committee for All Appropriate Inquiries 
conducted six multiple-day meetings over the course of an eight-month 
period, beginning in April 2003. The Committee reached consensus on the 
provisions of a proposed rule during its meeting in November 2003. The 
consensus of all Committee members was confirmed in December 2003 
through approval of the facilitator's summary of that meeting, 
including the text of the proposed rule. The Agency, consistent with 
the intent of the Negotiated Rulemaking Act of 1990 and in compliance 
with the Committee's ground rules, is using the Committee's consensus 
regulatory language as the basis of today's proposed rule.

I. What Are the Benefits of Negotiated Rulemaking?

    The regulatory negotiation process allowed EPA to solicit direct 
input from informed, interested, and affected parties while drafting 
the regulation, rather than delay public input until the public comment 
period provided after publishing a proposed rule; therefore, ensuring 
that the rule is sensitive to the needs and limitations of both the 
parties and the Agency. A rule drafted by negotiation with informed and 
affected parties is expected to be grounded in the practical 
experiences of the experts on the committee and more easily 
implemented, thereby providing the public with the benefits of the rule 
while minimizing the negative impact of a regulation conceived or 
drafted without the direct input of outside knowledgeable parties. 
Since a negotiating committee includes representatives from the major 
stakeholder groups affected by or interested in the rule, the number of 
public comments on the proposed rule may be reduced and those comments 
that are received may be more moderate.
    Under a traditional rulemaking process, EPA develops a proposed 
rulemaking using Agency staff and consultant resources. The concerns of 
affected parties are made known through various informal contacts and 
through publication of advance notices of proposed rulemaking in the 
Federal Register. After the notice of proposed rulemaking is published 
for comment, affected parties may submit arguments and data defining 
and supporting their positions with regard to the issues raised in the 
proposed rule. All communications from affected parties are directed to 
the Agency. In general, there is not much communication among parties 
representing different interests. Many times, effective regulations 
have resulted from such a process. However, as Congress noted in the 
Negotiated Rulemaking Act of 1990, such regulatory development 
procedures ``may discourage the affected parties from meeting and 
communicating with each other, and may cause parties with different 
interests to assume conflicting and antagonistic positions and to 
engage in expensive and time-consuming litigation * * * '' (5 U.S.C. 
581(2), Pub. L. 101-648). Congress also stated that ``adversarial 
rulemaking deprives the affected parties and the public of the benefits 
of face-to-face negotiations and cooperation in developing and reaching 
agreement on a rule. It also deprives them of the benefits of shared 
information, knowledge, expertise, and technical abilities possessed by 
the affected parties.'' (Id at 5 U.S.C. 581(3)). In the case of today's 
proposed rule, EPA believes that the willingness of the stakeholders to 
participate in the negotiated rulemaking greatly benefitted the 
development of the proposed rule.

J. Who Was Represented on the Negotiated Rulemaking Committee?

    The Agency initiated the negotiated rulemaking process giving 
particular attention to ensuring full and adequate representation of 
those interests that may be significantly affected by the proposed rule 
setting standards for conducting all appropriate inquiries. The 
Negotiated Rulemaking Act defines the term ``interest'' as ``with 
respect to an issue or matter, multiple parties which have a similar 
point of view or which are likely to be affected in a similar manner'' 
(5 U.S.C. 562(5)). Listed below are parties that the Agency identified 
as being ``significantly affected'' by the matters that may be included 
in the proposed rule. The Negotiated Rulemaking Committee consisted of 
representatives from each of these stakeholder groups.
    The Negotiated Rulemaking Committee was composed of 25 members 
representing parties of interest to the rulemaking. EPA monitored the 
membership of the Committee carefully to ensure that there was a 
balanced representation from affected and interested stakeholder 
groups. The Negotiated Rulemaking Committee included representatives 
from the following stakeholder groups:

 Environmental Interest Groups
 Environment Justice Community
 Federal Government
 Tribal Governments
 State Governments
 Local Governments
 Real Estate Developers
 Bankers and Lenders
 Environmental Professionals

    After establishing the above list of stakeholders as the 
stakeholders representing significant interests in the rulemaking, EPA 
identified specific organizations that the Agency believed could speak 
for and represent these

[[Page 52550]]

interests. After identifying a preliminary list of organizations to 
invite to participate in the negotiated rulemaking process, publishing 
the preliminary list in the Federal Register in a Notice of Intent To 
Negotiate (68 FR 10675), and considering public comment on the list of 
organizations invited to represent each stakeholder group, including 
considering self-nominations received from commenters, the Negotiated 
Rulemaking Committee was formed. The Committee included individuals 
from the following organizations:

 U.S. Environmental Protection Agency
 Environmental Defense
 Center for Public Environmental Oversight
 Partnership for Sustainable Brownfields Redevelopment
 West Harlem Environmental Action
 U.S. Public Interest Research Group (U.S. PIRG) \1\
---------------------------------------------------------------------------

    \1\ EPA notes that after all members of the Negotiated 
Rulemaking Committee reached consensus on November 14, 2003 and such 
consensus was confirmed by all Committee members through approval of 
the final meeting summary, U.S. PIRG submitted a letter, dated 
December 19, 2003, seeking to withdraw from the Committee. EPA 
included the letter and its reply in the public docket for the 
negotiated rulemaking process, SFUND-2003-0006.
---------------------------------------------------------------------------

 Association of State and Territorial Solid Waste Management 
Officials
 Gila River Indian Tribe
 Cherokee Nation
 U.S. Conference of Mayors
 National Association of Local Government Environmental 
Professionals
 International Municipal Lawyers Association
 National Association of Development Organizations
 National Association of Homebuilders
 The Real Estate Roundtable
 National Association of Industrial and Office Properties
 International Council of Shopping Centers
 Trust for Public Land
 National Brownfields Association
 Mortgage Bankers Association
 Environmental Bankers Association
 National Ground Water Association
 American Society of Civil Engineers
 ASFE
 Wasatch Environmental, Inc.

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

III. Detailed Description of Today's Proposed Rule

A. What Is the Purpose and Scope of the Proposed Rule?

    As outlined in the Brownfields Amendments to CERCLA, the purpose of 
today's rule is to establish federal standards and practices for the 
conduct of all appropriate inquiries. Such inquiries must be conducted 
by persons seeking any of the landowner liability protections under 
CERCLA prior to acquiring a property (as outlined in Section II.B. of 
this preamble). In addition, persons receiving Federal brownfields 
grants under the authorities of CERCLA Section 104(k)(2)(B) to conduct 
site characterizations and assessments must conduct such activities in 
compliance with the all appropriate inquiries regulations.
    In the case of persons claiming one of the CERCLA landowner 
liability protections, the scope of today's proposed rule includes the 
conduct of all appropriate inquiries for the purpose of identifying 
releases and threatened releases of hazardous substances on, at, in or 
to the property that would be the subject of a response action for 
which a liability protection would be needed and such a property is 
owned by the person asserting protection from liability. CERCLA 
liability is limited to releases and threatened releases of hazardous 
substances which cause the incurrence of response costs. Therefore, in 
the case of all appropriate inquiries conducted for the purpose of 
qualifying for protection from CERCLA liability (CERCLA Section 107), 
the scope of the inquiries is to identify releases and threatened 
releases of hazardous substances which cause or threaten to cause the 
incurrence of response costs.
    In the case of persons receiving Federal brownfields grants to 
conduct site characterizations and assessments, the scope of the 
proposed all appropriate inquiries standards and practices may be 
broader. The Brownfields Amendments include a definition of a 
``brownfield site'' that includes properties contaminated or 
potentially contaminated with pollutants and contaminants not included 
in the definition of ``hazardous substance'' in CERCLA Section 101(14). 
Brownfields sites include properties contaminated with (or potentially 
contaminated with) hazardous substances, as well as petroleum and 
petroleum substances, controlled substances, and pollutants and 
contaminants (as defined in CERCLA Section 101(33)). Therefore, in the 
case of persons receiving federal brownfields grant monies to conduct 
site assessment and characterization activities at brownfields sites, 
the scope of the all appropriate inquiries may include these other 
pollutants and contaminants, as outlined in proposed Sec.  312.1(c)(2), 
to ensure that persons receiving brownfields grants can appropriately 
and fully assess the properties that are owned by grant recipients to 
the full extent provided by the law. It is not the case that every 
recipient of a brownfields assessment grant has to include within the 
scope of the all appropriate inquiries petroleum and petroleum 
products, controlled substances and CERCLA pollutants and contaminants 
(as defined in CERCLA Section 101(33)). However, in those cases where 
the terms and conditions of the grant or the cooperative agreement with 
the grantee designate a broader scope to the investigation (beyond 
CERCLA hazardous substances), then the scope of the all appropriate 
inquiries should include the additional substances or contaminants.
    The scope of today's proposed rule does not include property 
purchased by a non-governmental entity or non-commercial entity for 
``residential or other similar uses where a facility inspection and 
title search reveal no basis for further investigation.'' (Pub. Law 
107-118 at Sec. 223). CERCLA Section 101(35)(B)(v) states that in those 
cases, the title search and facility inspection shall be considered to 
satisfy the requirements for all appropriate inquiries.
    EPA notes that today's proposed rule also does not affect the 
existing CERCLA liability protections for state and local governments 
that acquire ownership to properties involuntarily in their functions 
as sovereigns, pursuant to CERCLA Sections 101(20)(D) and 
101(35)(A)(ii). Involuntary acquisition of properties by state and 
local governments fall under those CERCLA provisions and EPA's policy 
guidance on those provisions, not under the all appropriate inquiry 
provisions of CERCLA Section 101(35)(B).

B. To Whom Is the Rule Applicable?

    Today's proposed rule applies to any person who may seek the 
landowner liability protections of CERCLA as an innocent landowner, 
contiguous property owner, or bona fide prospective purchaser. The 
statutory requirements to obtain each of these landowner liability 
protections include the conduct of all appropriate inquiries. In 
addition, the proposed rule will apply to individuals receiving Federal 
grant monies under CERCLA Section 104(k)(2) to conduct site 
characterization and assessment

[[Page 52551]]

activities. Persons receiving such grant monies must conduct the site 
characterization and assessment in compliance with the all appropriate 
inquiries regulatory requirements.

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

    The proposed rule does not include any new reporting or disclosure 
obligations. The proposed rule only would apply to those property 
owners who may seek the landowner liability protections provided under 
CERCLA for innocent landowners, contiguous property owners or bona fide 
prospective purchasers. The documentation requirements included in this 
proposed rule are primarily intended to enhance the inquiries by 
requiring the environmental professional to record the results of the 
inquiries and his or her conclusions regarding conditions indicative of 
releases and threatened releases on, at, in, or to the property and to 
provide a record of the environmental professional's inquiry. There are 
no proposed requirements to notify or submit information to EPA or any 
other government entity.
    The proposed rule does require, in proposed Sec.  312.21(c), that 
the environmental professional on behalf of the property owner document 
the results of the all appropriate inquiries in a written report. The 
property owner may use this report to document the results of the 
inquiries. The Agency believes that such a report can be similar in 
nature to the type of report currently provided under generally 
accepted commercial practices. Today's proposed rule contains no 
requirements regarding the length, structure, or specific format of the 
written report. In addition, the proposed rule does not require that a 
written report of any kind be submitted to EPA or any other government 
agency, or that a written report be maintained on-site at the subject 
property for any length of time. The purpose of the written report is 
merely to ensure that any person claiming one of the CERCLA landowner 
liability protections be able to show documentation that all 
appropriate inquiries were conducted in compliance with the federal 
regulations, should such documentation be required.\2\ The Agency 
notes, that while this proposed regulation would not require parties 
conducting all appropriate inquiries to retain the written report or 
any other documentation discovered, consulted, or created in the course 
of conducting the inquiries, the retention of such documentation and 
records may be helpful should the property owner need to assert 
protection from CERCLA liability after purchasing a property.
---------------------------------------------------------------------------

    \2\ Nothing in this proposed regulation or preamble is intended 
to suggest that any documentation prepared in conducting all 
appropriate inquiries will be admissible in court in any litigation 
where a party raises one of the liability protections, or will in 
any way alter the judicial rules of evidence.
---------------------------------------------------------------------------

    The proposed rule would require that a written report documenting 
the results of the all appropriate inquiries include an opinion of an 
environmental professional as to whether the all appropriate inquiries 
conducted identified conditions indicative of releases or threatened 
releases of hazardous substances on, at, in or to the subject property. 
The proposed rule also would require that the report identify data gaps 
in the information collected that affect the ability of the 
environmental professional to render such an opinion or determine the 
significance of data gaps.
    The proposed rule, at proposed Sec.  312.21(d), would require that 
the environmental professional who conducts or oversees the all 
appropriate inquiries sign the written report. There are two purposes 
for the proposed requirement to include a signature in the report. 
First, the individual signing the report would declare, on the 
signature page, that he or she meets the definition of an environmental 
professional, as provided in proposed Sec.  312.10. In addition, the 
proposed rule would require the environmental professional to declare 
that: [I, We] have developed and performed the all appropriate 
inquiries in conformance with the standards and practices set forth in 
40 CFR Part 312.
    The Negotiated Rulemaking Committee considered requiring an 
environmental professional to ``certify'' the results of the all 
appropriate inquiries when signing the report. However, several members 
of the Committee, members of the public representing organizations of 
environmental insurance companies, and professional engineers and 
environmental scientists, pointed out that requiring the report to 
include a certification statement could imply a warranty or guarantee 
of the report results on the part of the environment professional. This 
in turn could have implications regarding the availability and costs of 
professional insurance for environmental professionals. Requiring a 
certification as part of the all appropriate inquiries report also 
could cause a conflict with current requirements governing the use of 
professional stamps held by individuals with professional licenses, 
such as those for professional engineers, issued by states, tribes, and 
the federal government. To avoid such implications, the proposed rule 
does not include a certification requirement. However, the proposed 
rule would require that each all appropriate inquiries report include a 
signature of the environmental professional as well as two statements 
above the signature. One statement would read ``[I, We] declare that, 
to the best of [my, our] professional knowledge and belief, [I, we] 
meet the definition of Environmental Professional as defined in Sec.  
312.21 of 40 CFR part 312.'' The proposal also includes a second 
statement to be included above the signature, stating: ``[I, We] have 
the specific qualifications based on education, training, and 
experience to assess a property of the nature, history, and setting of 
the subject property. [I, We] developed and performed the all 
appropriate inquiries in conformance with the standards and practices 
set forth in 40 CFR part 312.'' These statements are meant to document 
that an individual meeting the proposed qualifications of an 
environmental professional was involved in the conduct of the all 
appropriate inquiries and that the activities performed by, or under 
the supervision or responsible charge of, the environmental 
professional were performed in conformance with the proposed 
regulations.
    The proposed rule allows for the property owner and any 
environmental professional engaged in the conduct of all appropriate 
inquiries for a specific property to design and develop the format and 
content of a written report that will meet the prospective purchaser's 
objectives and information needs in addition to providing documentation 
that all appropriate inquiries were completed prior to the acquisition 
of the property, should the landowner need to assert protection from 
liability after purchasing a property.
    The Agency requests comment on the proposed requirements for an all 
appropriate inquiries report. The Agency also requests comments on the 
signature requirements for the all appropriate inquiries report.
    Although today's proposed rule does not include any additional 
disclosure requirements, CERCLA Section 103 does require persons in 
charge of facilities, including on-shore and off-shore facilities, and 
persons in charge of vessels to notify the National Response Center of 
any release of a hazardous substance of a quantity equal to or greater 
than a ``reportable quantity,'' as

[[Page 52552]]

defined in CERCLA Section 102(b) from the facility or vessel. Today's 
proposed rule proposes no changes to this reporting requirement and 
proposes no changes to any other reporting or disclosure requirements 
under federal, tribal, or state law.

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

1. What Is the Intent of the Proposed Definition of an Environmental 
Professional?
    In the Brownfields Amendments, Congress required that all 
appropriate inquiries include ``the results of an inquiry by an 
environmental professional'' (CERCLA Section 101(35)(B)(iii)(I)). The 
members of the Negotiated Rulemaking Committee determined that it is 
necessary to establish minimum qualifications for persons managing or 
overseeing all appropriate inquiries. The Committee's intent, in 
setting minimum professional qualifications, is to ensure that all 
inquiries are conducted at a high level of professional ability and 
ensure the overall quality of both the inquiries conducted and the 
conclusions or opinions rendered with regard to conditions indicative 
of the presence of a release or threatened release on, at, in, or to a 
property, based upon the results of all inquiries. The Committee agreed 
that an environmental professional conducting or overseeing all 
appropriate inquiries must possess sufficient specific education, 
training, and experience necessary to exercise professional judgment to 
develop opinions and conclusions regarding the presence of releases or 
threatened releases of hazardous substances to the surface or 
subsurface of a property. The Committee agreed that an environmental 
professional must hold a degree in an engineering or scientific field 
of study and that such individuals also must have a number of years of 
relevant experience in conducting all appropriate inquiries, or 
environmental site assessments. The Committee determined that any 
individual overseeing the conduct of all appropriate inquiries must 
provide significant information about the environmental conditions at a 
property to support a purchaser's or property owner's claim with regard 
to liability protection under CERCLA. Therefore, any individual 
overseeing the conduct of the all appropriate inquiries must have a 
significant level of education and experience. In addition, the 
Committee determined that it is essential for environmental 
professionals to remain current in their field of practice.
2. What Are the Minimum Qualifications for Meeting the Definition of an 
Environmental Professional?
    Today's proposed rule includes a definition of an environmental 
professional that reflects the Negotiated Rulemaking Committee's 
extensive efforts to identify a set of minimum qualifications, 
including minimum levels of education and experience, that characterize 
the type of professional who is best qualified to oversee and direct 
the development of comprehensive inquiries and provide the landowner 
with sound conclusions and opinions regarding the potential for 
releases or threatened releases to be present at the property. The 
proposed rule allows for individuals not meeting the proposed 
definition of an environmental professional to contribute to and 
participate in the all appropriate inquiries on the condition that such 
individuals are conducting inquiries activities under the supervision 
or responsible charge of an individual that meets the regulatory 
definition of an environmental professional.
    The proposed rule would require that the final review of the all 
appropriate inquiries and the conclusions that follow from the 
inquiries rest with an individual who qualifies as an environmental 
professional, as defined in proposed section Sec.  312.10 of the 
proposed rule. The Negotiated Rulemaking Committee concluded, as 
reflected in its final consensus document, that it is essential that a 
person meeting the regulatory definition of an environmental 
professional sign a report documenting the results and conclusions of 
the all appropriate inquiries to attest to his or her opinion that the 
inquiries were conducted in compliance with the regulations. The 
proposed rule also provides that in signing the report, the 
environmental professional must document that he or she meets the 
definition of an ``environmental professional'' included in the 
regulations.
    The proposed definition of an environmental professional includes 
minimum educational qualifications and a number of years of full-time 
relevant experience in the conduct of all appropriate inquiries or 
environmental site assessments. The proposed definition first and 
foremost requires that to qualify as an environmental professional a 
person must ``possess sufficient specific education, training, and 
experience necessary to exercise professional judgment to develop 
opinions and conclusions regarding the presence of releases or 
threatened releases * * * to the surface or subsurface of a property, 
sufficient to meet the objectives and performance factors'' that are 
provided in the proposed regulation. The proposed definition of an 
environmental professional includes individuals who possess the 
following combinations of education and experience.
     Hold a current Professional Engineer's or Professional 
Geologist's license or registration from a state, tribe, or U.S. 
territory and have the equivalent of three (3) years of full-time 
relevant experience; or
     Be licensed or certified by the federal government, a 
state, tribe, or U.S. territory to perform environmental inquiries as 
defined in Sec.  312.21 and have the equivalent of three (3) years of 
full-time relevant experience; or
     Have a Baccalaureate or higher degree from an accredited 
institution of higher education in a relevant discipline of 
engineering, environmental science, or earth science and the equivalent 
of five (5) years of full-time relevant experience; or
     As of the date of the promulgation of the final rule, have 
a Baccalaureate or higher degree from an accredited institution of 
higher education and the equivalent of ten (10) years of full-time 
relevant experience.
    Based upon the recommendations of the Negotiated Rulemaking 
Committee, EPA is proposing to recognize as environmental professionals 
those individuals who are licensed by any tribal or state government as 
a professional engineer (P.E.) or a professional geologist (P.G.), and 
have three years of full-time relevant experience in conducting all 
appropriate inquiries. The Agency believes that such individuals have 
``sufficient specific education, training, and experience necessary to 
exercise professional judgment to develop opinions and conclusions 
regarding the presence of releases or threatened releases * * * to the 
surface or subsurface of a property, sufficient to meet the objectives 
and performance factors'' provided in the proposed regulation. EPA and 
the Committee concluded that the rigor of the tribal- and state-
licensed P.E. and P.G. certification processes, including the 
educational and training requirements, as well as the examination 
requirements, paired with the requirement to have three years of 
relevant professional experience conducting all appropriate inquiries 
will ensure that all appropriate inquiries

[[Page 52553]]

are conducted under the supervision or responsible charge of an 
individual well qualified to oversee the collection and interpretation 
of site-specific information and render informed opinions and 
conclusions regarding the environmental conditions at a property, 
including opinions and conclusions regarding the presence of releases 
or threatened releases of hazardous substances and other contaminants 
on, at, in, or to the property. The Agency's decision to recognize 
tribal and state-licensed P.E.s and P.G.s reflects the fact that tribal 
governments and state legislatures hold such professionals responsible 
(legally and ethically) for safeguarding public safety, public health, 
and the environment. To become a P.E. or P.G. requires that an 
applicant have a combination of accredited college education followed 
by approved professional training and experience. Once a publicly-
appointed review board approves a candidate's credentials, the 
candidate is permitted to take a rigorous exam. The candidate must pass 
the examination to earn a license, and perform ethically to maintain 
it. After a state or tribe grants a license to an individual, and as a 
condition of maintaining the license, many states require P.E.s and 
P.G.s to maintain proficiency by participating in approved continuing 
education and professional development programs. In addition, members 
of the Negotiated Rulemaking Committee, including state representatives 
on the Committee, pointed out that tribal and state licensing boards 
can investigate complaints of negligence or incompetence on the part of 
licensed professionals, and may impose fines and other disciplinary 
actions such as cease and desist orders or license revocation.
    The Negotiated Rulemaking Committee also recommended, and EPA is 
proposing, to include within the proposed definition of an 
environmental professional individuals who are environmental 
professionals, or otherwise licensed to perform environmental site 
assessments or all appropriate inquiries by the Federal government 
(e.g., the Bureau of Indian Affairs) or under a state or tribal 
certification program, provided that these individuals also have three 
years of relevant experience. It is the Committee's and EPA's opinion 
that such qualifications define individuals who ``possess sufficient 
specific education, training, and experience necessary to exercise 
professional judgment to develop opinions and conclusions regarding the 
presence of releases or threatened releases * * * to the surface or 
subsurface of a property, sufficient to meet the [proposed rule's] 
objectives and performance factors.''
    Although the proposed rule recognizes tribal and state-licensed 
P.E. and P.G.s and other such government licensed environmental 
professionals with three years of experience to be environmental 
professionals, the proposed rule does not restrict the definition of an 
environmental professional to these licensed individuals. The proposed 
definition of an environmental professional also would include 
individuals who hold a Baccalaureate or higher degree from an 
accredited institution of higher education in a relevant discipline of 
engineering, environmental science, or earth science and have the 
equivalent of five (5) years of full-time relevant experience in 
conducting environmental site assessments, or all appropriate 
inquiries. Again, such individuals most likely will possess sufficient 
specific education, training, and experience necessary to exercise 
professional judgment to develop opinions and conclusions regarding the 
presence of releases or threatened releases to the surface or 
subsurface of a property, sufficient to meet the proposed objectives 
and performance factors included in proposed Sec.  312.20(d) and (e).
    A goal of the Negotiated Rulemaking Committee was to establish 
qualifications for the environmental professional that will ensure that 
all appropriate inquiries are conducted at a high standard of technical 
and scientific quality, while not significantly disrupting the current 
market for professional site assessment services. The Committee debated 
whether or not to recommend that the definition of an environmental 
professional be restricted to individuals holding a Professional 
Engineer or Professional Geologist license, or holding another similar 
license from a state, tribe, or U.S. territory. Establishing such a 
requirement could assure that all appropriate inquiries conducted for 
the purposes of supporting a claim to a CERCLA liability protection 
would be conducted by highly qualified individuals. However, Committee 
members recognized that many individuals with appropriate education and 
training and many years of relevant experience in conducting 
environmental site assessments (including non-licensed environmental 
engineers and geologists) may be qualified to conduct all appropriate 
inquiries, although they do not have a Professional Engineer or 
Professional Geologist license. The Committee therefore discussed what 
qualifications are necessary to ensure that an individual is qualified 
to oversee the conduct of all appropriate inquiries, review the results 
of all inquiries for a particular property and be capable of assessing 
this information in light of all other relevant site-specific 
information about a property (e.g., hydrogeologic setting), and develop 
sound opinions and conclusions regarding the environmental conditions 
at a property and the potential presence of a release or threatened 
release on, at, in or to the property. The Committee determined that 
the individuals best qualified to review all available and relevant 
information about a property and render a professional opinion 
regarding the environmental conditions at a property at a standard of 
quality necessary that may ensure a valid interpretation of the 
findings and accurate opinion of the property's environmental 
conditions, are those with a degree in a relevant field of engineering, 
environmental science, or earth science and five years of full-time 
relevant experience. The Committee considered many other variants of 
educational and experience qualifications. Some Committee members 
preferred proposing qualifications centered more closely around 
specific education or training criteria. Other Committee members 
pointed out that the qualifications should be based primarily on years 
of relevant experience. After much deliberation and after receiving and 
considering public comments on the subject, the Committee recommended 
that the proposed definition of an environmental professional include 
both educational and experience qualifications. The Committee 
recommended that the definition of an environmental professional 
include a requirement that such individuals hold a Baccalaureate or 
higher degree in a relevant field of science or engineering. Committee 
members believed that individuals trained in science and engineering 
are best qualified to understand how to interpret information collected 
about a property in light of the environmental conditions and site-
specific situations at the property. In addition, the Committee 
determined that individuals with such degrees also should have five 
years of relevant full-time experience in conducting all appropriate 
inquiries prior to meeting the qualifications for an environmental 
professional. The proposed rule also would require all environmental 
professionals to remain current in the field of all appropriate 
inquiries, or environmental site assessments.

[[Page 52554]]

    During the Committee's deliberations on the definition of an 
environmental professional, public commenters raised particular 
concerns with regard to individuals who currently are employed in the 
business of conducting all appropriate inquiries or environmental site 
assessments, but who do not meet the Committee's proposed 
qualifications of an environmental professional. The Committee gave 
careful consideration of public comments that pointed out the potential 
impacts that the proposed definition of an environmental professional 
may have on the current market for environmental site assessment 
services and the fact that many practicing professionals without 
science degrees have substantial investigative and writing skills. 
Members of the public pointed out in written comments to EPA and the 
Committee that some practicing professionals have many years of 
experience in conducting all appropriate inquiries, but do not have the 
specific educational requirements recommended by the Committee. EPA and 
the Committee, in considering these comments, wanted to ensure that 
professionals with extensive experience in conducting all appropriate 
inquiries and who have built their careers in such a business practice 
not be put out of business or bear a hardship of having to obtain a 
degree mid-career. However, EPA and the Committee had to balance this 
concern with the additional concerns of ensuring that all appropriate 
inquiries are conducted by experienced and well-qualified 
professionals.
    The Committee deliberated the merits of setting a high standard of 
excellence for the conduct of all appropriate inquiries through the 
establishment of stringent qualifications for environmental 
professionals against the need to ensure that competent individuals 
currently conducting all appropriate inquiries are not displaced. After 
carefully considering these issues, the Committee recommended and EPA 
is proposing, as part of the proposed definition of an environmental 
professional, a provision allowing many currently practicing 
professionals to continue to conduct business in the field of 
environmental site assessments or all appropriate inquiries, while 
ensuring a high qualifications standard for future professionals. The 
Negotiated Rulemaking Committee recommended that the proposed 
definition of an environmental professional allow for persons that at 
the time of promulgation of the final rule do not meet the proposed 
educational or professional licensing qualifications for an 
environmental professional but have more than ten years of experience 
in conducting environmental site assessments to be included as 
environmental professionals. This provision is proposed as a 
``grandfather'' clause and would only apply to those individuals with 
ten or more years of experience in the field of all appropriate 
inquiries investigations on the date of promulgation of the final rule. 
The Committee made this recommendation after careful consideration of 
public comments and of the potential impacts that the proposed 
definition of an environmental professional may have on the current 
market for environmental site assessment services and the fact that 
many practicing professionals without science degrees have substantial 
investigative and writing skills.
    The proposed definition provides that ``as of the date of 
promulgation of the final rule, individuals who have a baccalaureate or 
higher degree from an accredited institution of higher education and 
the equivalent of ten (10) years of full-time relevant experience'' 
will meet the proposed definition of an environmental professional. 
Again, this provision of the proposed definition is a grandfather 
clause and would apply only to those individuals meeting these 
qualifications on the date of promulgation of the final rule. Persons 
not meeting these qualifications on the effective date of the final 
rule will have to meet the other minimum qualifications included in the 
proposed definition to qualify as an environmental professional for the 
purpose of conducting all appropriate inquiries under the federal 
standards established under the final rule.
    EPA is requesting comment on the proposed definition of an 
environmental professional and the specific minimal qualifications 
included in the proposed definition.
3. If I Am Certified as an Environmental Professional by a Private 
Certification Association, Do I Qualify as an Environmental 
Professional Under the Proposed Rule?
    During the Negotiated Rulemaking Committee's deliberations, the 
general public had many opportunities to comment on the Committee's 
draft regulatory language including the opportunity to provide written 
comment to the Committee and make oral presentations to the Committee 
during each of the Committee's meetings. Many individuals took 
advantage of the openness of the negotiated rulemaking process to 
provide input and comment to the Committee, particularly with regard to 
the Committee's deliberations on the definition of an environmental 
professional. The Committee considered restricting the definition of an 
environmental professional to state-licensed certification programs. 
However, based upon many comments received from the public, as well as 
the concerns of some members of the Committee, the Committee members 
concluded that there is a need to recognize individuals who have 
similar qualifications to P.E.s and P.G.s but do not hold a state-
issued license or certificate. Therefore, the Committee recommended, 
and EPA is proposing, to include within the definition of an 
environmental professional those individuals who have a baccalaureate 
or higher degree from an accredited institution of higher education in 
a relevant discipline of engineering, environmental science, or earth 
science and the equivalent of five (5) years of full-time relevant 
experience in conducting environmental site assessments or all 
appropriate inquiries. The proposed definition of ``relevant 
experience'' is ``participation in the performance of environmental 
site assessments that may include environmental analyses, 
investigations, and remediation which involve the understanding of 
surface and subsurface environmental conditions and the processes used 
to evaluate these conditions and for which professional judgment was 
used to develop opinions regarding conditions indicative of releases or 
threatened releases * * * to the subject property.''
    The Committee received comments from independent professional 
certification organizations, including the Certified Hazardous 
Materials Managers' organization, requesting that their organizations' 
certification programs be named in the proposed regulatory definition 
of an environmental professional. The Committee concluded that such an 
approach would require that EPA review the certification requirements 
of each organization to determine whether or not each organization's 
certification requirements meet or exceed the regulatory qualifications 
proposed for an environmental professional. Given that there may be 
many such organizations and given that each organization may review and 
change its certification qualifications on a frequent or periodic 
basis, EPA concluded that such a undertaking was not practicable. The 
Agency does not have the necessary resources to review the legitimacy 
of each private certification organization and review and approve each 
organization's certification

[[Page 52555]]

qualifications. Therefore, the Committee recommended, and EPA is 
proposing, to include within the regulatory definition of an 
environmental professional, a generic performance-based qualifications 
standard that includes education and experience qualifications, but 
does not recognize any private organization's certification program. 
However, the Agency notes that any individual with a certification from 
a private certification organization where the organization's 
certification qualifications include the same or more stringent 
education and experience requirements as those included in the federal 
regulation will meet the definition of an environmental professional 
for the purposes of this regulation. As stated above, the proposed 
definition of an environmental professional includes individuals who 
hold a Baccalaureate or higher degree from an accredited institution of 
higher education in a relevant discipline of engineering, environmental 
science, or earth science and the equivalent of five (5) years of full-
time relevant experience.
4. Can Persons Not Meeting the Proposed Definition of an Environmental 
Professional Contribute to the Conduct of All Appropriate Inquiries?
    During the Committee's deliberations on the definition of an 
environmental professional, members of the public also raised concerns 
about restricting the conduct of all appropriate inquiries to only 
those individuals meeting the definition of an environmental 
professional. The Negotiated Rulemaking Committee considered requiring 
that all the activities necessary to complete the all appropriate 
inquiries investigation be conducted by persons meeting the proposed 
definition of an environmental professional. Such a requirement could 
ensure that all of the required activities are conducted at a high 
standard of quality. In addition, requiring that all activities be 
conducted by an environmental professional could ensure, to a high 
level of confidence, the accuracy and reliability of the environmental 
professional's interpretation of the inquiries results. However, after 
careful review of specific activities required to complete the all 
appropriate inquiries, consideration of public comments offered during 
the Committee's deliberations, and consideration of the costs and 
impacts to the market for environmental site assessment services, the 
Committee decided that it is not necessary for an environmental 
professional to perform all aspects of the all appropriate inquiries.
    Therefore, the proposed definition of an environmental professional 
would allow for many of the individual inquiry activities to be 
conducted by individuals that may not qualify as an environmental 
professional per the proposed definition. The proposed rule would allow 
individuals not meeting the definition of an environmental professional 
to contribute to the conduct of the all appropriate inquiries, as long 
as such individuals are working under the supervision or responsible 
charge of an individual who meets the proposed definition of an 
environmental professional. This provision would allow for a team of 
individuals working for the same firm or organization (e.g., 
individuals working for the same government agency) to share the 
workload for conducting all appropriate inquiries for a single 
property, provided that one member of the team meets the proposed 
definition of an environmental professional and reviews the results and 
conclusions of the inquiries and signs the final report.
    The Agency requests comments on all of the proposed qualifications 
included in the definition of an environmental professional and the 
provisions allowing for individuals who do not qualify as environmental 
professionals to contribute to inquiry activities.

E. References

    Today's proposed rule includes no references. However, the Agency 
is reserving a reference section and may include references in the 
final rule. As explained later in this preamble, EPA is inviting the 
public to identify potentially applicable standards developed by 
standards developing organizations that may be applicable and compliant 
with the regulations proposed today. Prior to promulgating a final 
regulation setting federal standards and practices for all appropriate 
inquiries, the Agency may consider citing or referencing applicable and 
compliant voluntary consensus standards in the final regulation. This 
may facilitate implementation of the final regulations and avoid 
disruption to parties using voluntary consensus standards that are 
found to be fully compliant with the federal regulations.

F. What Is Included in ``All Appropriate Inquiries?''

    The proposed Federal regulations for conducting all appropriate 
inquiries include standards and practices for conducting the activities 
included in each of the statutory criterion established by Congress in 
the Brownfields Amendments. These criteria are set forth in CERCLA 
Section 101(35)(2)(B)(iii) and are:
     The results of an inquiry by an environmental professional 
(proposed Sec.  312.21).
     Interviews with past and present owners, operators, and 
occupants of the facility for the purpose of gathering information 
regarding the potential for contamination at the facility (proposed 
Sec.  312.23).
     Reviews of historical sources, such as chain of title 
documents, aerial photographs, building department records, and land 
use records, to determine previous uses and occupancies of the real 
property since the property was first developed (proposed Sec.  
312.24).
     Searches for recorded environmental cleanup liens against 
the facility that are filed under Federal, State, or local law 
(proposed Sec.  312.25).
     Reviews of Federal, State, and local government records, 
waste disposal records, underground storage tank records, and hazardous 
waste handling, generation, treatment, disposal, and spill records, 
concerning contamination at or near the facility (proposed Sec.  
312.26).
     Visual inspections of the facility and of adjoining 
properties (proposed Sec.  312.27).
     Specialized knowledge or experience on the part of the 
defendant (proposed Sec.  312.28).
     The relationship of the purchase price to the value of the 
property, if the property was not contaminated (proposed Sec.  312.29).
     Commonly known or reasonably ascertainable information 
about the property (proposed Sec.  312.30).
     The degree of obviousness of the presence or likely 
presence of contamination at the property, and the ability to detect 
the contamination by appropriate investigation (proposed Sec.  312.31).
1. Who Is Responsible for Conducting the All Appropriate Inquiries?
    The Brownfields Amendments to CERCLA require persons claiming any 
of the landowner liability protections to conduct all appropriate 
inquiries into the past uses and ownership of subject property. The 
criteria included in the Brownfields Amendments for the regulatory 
standards for all appropriate inquiries require that the inquiries 
include an inquiry by an environmental professional. The statute does 
not require that all criteria or inquiries be conducted by an 
environmental professional. After careful review and consideration of 
each statutory criterion,

[[Page 52556]]

the Negotiated Rulemaking Committee determined that many, but not all, 
of the inquiries activities must be conducted by, or under the 
supervision or responsible charge of, an individual meeting the 
qualifications within the proposed definition of an environmental 
professional.
    The Committee recommended, and EPA is proposing, that several of 
the activities included in the inquiries may be conducted either by the 
purchaser, or the landowner, and do not have to be conducted under the 
supervision or responsible charge of the environmental professional. 
The proposed rule would require that the results of all activities not 
conducted by or under the supervision or responsible charge of the 
environmental professional be provided to the environmental 
professional to ensure that such information may be fully considered 
when the environmental professional draws conclusions based on the 
inquiry activities or renders an opinion as to whether conditions at 
the property are indicative of a release or threatened release of a 
hazardous substance (or other contaminant) on, at, in, or to the 
property which causes the incurrence of response costs.
    The proposed rule allows for the following activities to be the 
responsibility of, or conducted by, the purchaser or landowner and not 
necessarily by the environmental professional, provided the results of 
such inquiries or activities are provided to an environmental 
professional overseeing the all appropriate inquiries:
     Searches for environmental cleanup liens against the 
subject property that are filed or recorded under federal, tribal, 
state, or local law, as required by proposed Sec.  312.25.
     Assessments of any specialized knowledge or experience on 
the part of the purchaser or landowner, as required by Sec.  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 Sec.  312.29.
     An assessment of commonly known or reasonably 
ascertainable information about the subject property, as required by 
Sec.  312.30.
    The proposed rule would require that all other required inquiries 
and activities, beyond those listed above to be conducted by, or under 
the supervision or responsible charge of, an environmental 
professional. The Agency requests comment on the proposed division of 
responsibilities.
2. When Must All Appropriate Inquiries Be Conducted?
    CERCLA, as amended, requires innocent landowners, bona fide 
prospective purchasers, and contiguous property owners to conduct all 
appropriate inquiries prior to acquiring a property for the purposes of 
either establishing that the purchaser ``did not know and had no reason 
to know'' of releases or threatened releases of hazardous substances 
on, at, in, or to the property, or in the case of the bona fide 
prospective purchaser, to identify environmental conditions indicative 
of releases or threatened releases at the property prior to taking 
ownership of the property. In the case of contiguous property owners, 
CERCLA Section 107(q)(1)(A)(viii) requires that a person claiming to be 
a contiguous property owner conduct all appropriate inquiries ``at the 
time at which the person acquired the property.'' In the case of 
innocent landowners, Section 101(35)(B) of CERCLA requires that the 
property owner conduct all appropriate inquiries ``on or before the 
date on which the defendant acquired the facility.''
    Other than to specify that all appropriate inquiries must be 
conducted at or prior to the time a person acquires a property, the 
statute is silent regarding how close to the actual purchase date the 
inquiries must be completed. The proposed rule requires that all 
appropriate inquiries be conducted within one year prior to taking 
title to a property. As explained below, purchasers may use information 
collected as part of previous inquiries for the same property, if the 
inquiries were completed or updated within one year prior to the date 
the property is acquired. The proposed rule would require that certain 
information collected as part of the all appropriate inquiries be 
updated if it was collected more than 180 days prior to the date a 
purchaser acquires the property. In addition, the Agency is proposing 
to define the date of acquisition of a property as the date on which 
the purchaser acquires title to the property.
    The Agency believes that the event that most closely reflects the 
Congressional intent of the date on which the defendant acquired the 
property is the date on which a purchaser received title to the 
property. The Agency considered other dates, such as the date a 
prospective purchaser signs a purchase or sale agreement. However, EPA 
believes that it could be burdensome to require a prospective purchaser 
to have completed the all appropriate inquiries prior to having an 
agreement with a seller to complete a sales transaction. In fact, the 
time period between the date on which a sales agreement is signed and 
the date on which the title to the property is actually transferred to 
the purchaser may be the most convenient time for the prospective 
purchaser to obtain access to the property and undertake the all 
appropriate inquiries. In addition, requiring that all appropriate 
inquiries be completed on some date prior to the date of title transfer 
could result in requiring prospective purchasers to undertake all 
appropriate inquiries so early in the property acquisition process as 
to require the inquiries to be completed prior to the purchaser making 
a final decision on whether to actually acquire the property. EPA 
requests comment on the proposal to establish the date on which title 
is transferred as the date on which the property is acquired.
    To increase the potential that the information collected for the 
all appropriate inquiries accurately reflects the proposed objectives 
and performance factors, as well as to increase the potential that 
opinions and judgments regarding the environmental conditions at a 
property that are included in an all appropriate inquiries report are 
based on current and relevant information, the Agency is proposing that 
all appropriate inquiries be conducted within one year prior to the 
purchaser acquiring the property. Such inquiries may include 
information collected for previous all appropriate inquiries that were 
conducted or updated within one year prior to the acquisition date of 
the property. In addition, as explained in more detail below, the 
proposed rule would require that several of the components of the 
inquiries be updated within 180 days prior to the date the property is 
acquired (i.e., the date the landowner obtains title to the property).
3. Can a Purchaser Use Information Collected for Previous Inquiries 
Completed for the Same Property?
    The proposed rule, at Sec.  312.20(b), would allow parties 
conducting all appropriate inquiries to use previous inquiries 
completed for the same property, under certain conditions. First, the 
previous inquiries must have been conducted in compliance with the 
regulations applicable at the time the previous all appropriate 
inquiries investigation was completed. In addition, the previous 
inquiries must have been completed with information that was collected 
or updated no longer than a year prior to the current acquisition date 
for the property.

[[Page 52557]]

Certain types of information collected more than 180 days prior to the 
current date of acquisition must be updated for the current all 
appropriate inquiries. Also, the information required under some 
specific criterion (e.g., relationship of purchase price to property 
value, specialized knowledge on part of defendant) must be collected 
specifically for the current transaction.
    When discussing the issue of whether or not to provide for the use 
of all appropriate inquiries conducted by a previous owner, or the 
seller, of a particular property, the Negotiated Rulemaking Committee 
recognized that there is value in using previously collected 
information when such information was collected in accordance with the 
regulatory standards, particularly when the use of such previously-
collected information will reduce the need to undertake duplicative 
efforts. In its deliberations, the Committee discussed the potential 
impacts that allowing the use of all appropriate inquiries conducted by 
third parties could have upon the legality and legitimacy of the all 
appropriate inquiries required to be conducted by a purchaser not 
involved in the collection of the information. The Committee also 
discussed how often certain information required to be collected as 
part of the all appropriate inquiries should be updated to ensure its 
accuracy. A particular focus of the Committee's discussions was the 
need for information collected and used by an environmental 
professional to be accurate and current, therefore allowing the 
environmental professional to make informed judgments regarding the 
environmental conditions of the property and provide informed opinions 
as to the likelihood that conditions are indicative of a release or 
threatened release of a hazardous substance on, at, in, or to the 
property.
    The Committee recommended, and EPA is proposing, to allow all 
appropriate inquiries to include information contained in previous 
inquiries, including inquiries conducted by third parties, for the same 
property. However, such information must have been updated or collected 
within one year prior to the date the current purchaser acquires the 
property (the date on which the owner takes title to the property) and 
collected in compliance with the regulatory requirements that were in 
effect at the time the previous all appropriate inquiries were 
conducted. Note that if the previous all appropriate inquiries were 
conducted prior to the effective date of the final federal standards 
for all appropriate inquiries, the inquiries must have been conducted 
in compliance with either the interim standard established by Congress 
in the Brownfields Amendments and clarified by EPA on May 9, 2003 (68 
FR 24888), or in the case of properties purchased prior to May 31, 
1997, in compliance with practices consistent with good commercial or 
customary business practices.
    The Committee recognized that it is not sufficient to wholly adopt 
previously conducted all appropriate inquiries for the same property 
without any review. Certain aspects of the all appropriate inquiries 
investigation are specific to the current purchaser and the current 
purchase transaction. Therefore, the proposed rule would require that 
each all appropriate inquiries investigation include current 
information related to:
     Any relevant specialized knowledge held by the current 
purchaser and the environmental professional responsible for overseeing 
and signing the all appropriate inquiries report (i.e., requirements of 
proposed Sec.  312.28); and
     The relationship of the current purchase price to the 
value of the property, if the property were not contaminated (i.e., 
requirements of proposed Sec.  312.29).
    In addition, the Committee recommended that certain information be 
updated if it was not collected within 180 days prior to the date of 
acquisition of the property (or the date on which the purchaser takes 
title to the property) to ensure that an all appropriate inquiries 
investigation accurately reflects the environmental conditions at a 
property. To increase the potential that information collected is 
accurate, as well as increase the potential that opinions and judgments 
regarding the environmental conditions at a property that are included 
in an all appropriate inquiries report are based on current and 
relevant information, the proposed rule would require that many of the 
components of the inquiries be updated within 180 days prior to the 
date of acquisition of the property. The components of the all 
appropriate inquiries that must be updated within 180 days prior to the 
date of acquisition of the property are:
     Interviews with past and present owners, operators, and 
occupants (proposed Sec.  312.23);
     Searches for recorded environmental cleanup liens 
(proposed Sec.  312.25);
     Reviews of federal, tribal, state, and local government 
records (proposed Sec.  312.26);
     Visual inspections of the facility and of adjoining 
properties (proposed Sec.  312.27); and
     The declaration by the environmental professional 
(proposed Sec.  312.21(d)).
    An all appropriate inquiries investigation may include the 
information listed above when previously collected by the purchaser or 
a third party for the same property, provided that the information was 
collected no longer than one year prior to the current purchaser's date 
of acquisition of the property and provided that it is updated for the 
current all appropriate inquiries investigation, if it was collected 
more than 180 days prior to the acquisition date. Also, in all cases 
where a purchaser is using previously collected information, the all 
appropriate inquiries for the current purchase must include a summary 
of any changes to the conditions of the property that occurred since 
the previous inquiries were conducted.
    The Agency requests comment on the proposed provisions for using 
previously conducted all appropriate inquiries.
4. Can All Appropriate Inquiries Be Conducted by One Party and 
Transferred to Another Party?
    The proposed rule, at proposed Sec.  312.20(c), allows for all 
appropriate inquiries to be conducted by one party and transferred to 
another party, provided that certain conditions are met. It was brought 
to the attention of the Negotiated Rulemaking Committee that under 
certain circumstances, the person purchasing a property may obtain a 
report of all appropriate inquiries conducted for the property from 
another party, either the seller of the property or another independent 
party. In particular, the Committee discussed situations where the 
federal government or a state government agency may conduct the all 
appropriate inquiries on behalf of the local government on a property 
being purchased by a local government. For example, the EPA Brownfields 
program conducts ``targeted brownfields assessments'' on behalf of 
local governments. This situation also may occur when a state 
government is covering the cost of the all appropriate inquiries for a 
property owned by a local government or in a situation where the local 
government does not have access to appropriate staff or capital 
resources to conduct the all appropriate inquiries and it therefore is 
conducted by a state government agency. Another example is when a local 
government conducts all appropriate inquiries for a

[[Page 52558]]

third party in its community, such as a private prospective purchaser. 
In addition, local brownfields redevelopment agencies that are 
connected to local government may seek out contaminated property, make 
all appropriate inquiries about it, acquire it, and then sell the 
property to a developer.
    The proposed rule allows for a person acquiring a property to use 
the results of inquiries and the inquiries report conducted by another 
party, if the inquiries and the report meet the proposed objectives and 
performance factors for the all appropriate inquiries regulations and 
the purchaser of the property who is seeking to use the previously-
collected information or report, reviews all information collected and 
updates the contents of the report as necessary to accurately reflect 
current conditions at the property. In addition, the proposed rule 
would require that the purchaser update the inquiries and the report to 
include any relevant specialized knowledge held by the current 
purchaser and the environmental professional. The Agency requests 
comments on the proposed requirements for using all appropriate 
inquiries conducted by third parties.
5. What Are the Objectives and Performance Factors for the Proposed All 
Appropriate Inquiries Requirements?
    The Committee developed its recommendation for proposed regulatory 
language around the criteria established by Congress in Section 
101(35)(B)(iii) of CERCLA. As the Committee progressed in its efforts 
to address each criterion, it became apparent that the purposes and 
objectives for performing many of the inquiries and the types of 
information that must be collected to meet the objectives of the 
individual regulatory criterion often overlapped. For example, in 
developing standards addressing the criterion requiring a review of 
historical information, a search for recorded environmental cleanup 
liens, and a review of government records, the Committee concluded that 
the objectives of each criterion or activity was similar, and in some 
cases, the same information could be collected independently to satisfy 
each criterion when conducting activities required to fulfill each of 
the criterion's objectives. A chain of title document is historic 
information that may include information on environmental cleanup liens 
and may include information on past owners of the property that 
indicates that previous owners managed hazardous substances at the 
property.
    To avoid requiring duplicative efforts, but to ensure that the 
proposed regulations include standards and practices that result in a 
comprehensive assessment of the environmental conditions at a property, 
the Negotiated Rulemaking Committee recommended, and EPA is proposing, 
that the all appropriate inquiries standards be structured around a 
concise set of objectives and performance factors. The proposed 
objectives and performance factors apply to the inquiries 
comprehensively. In conducting the inquiries collectively, the 
landowner and the environmental professional must seek to achieve the 
proposed objectives and performance factors and use these proposed 
objectives and standards as guidelines in implementing, in total, all 
of the other proposed regulatory standards and practices.
    An all appropriate inquiries investigation need not address each of 
the regulatory criterion in any particular sequence. In addition, 
information relevant to more than one criterion need not be collected 
twice, and a single source of information may satisfy the requirements 
of more than one criterion and more than one objective. Under the 
provisions of the proposed rule, the information required to achieve 
each of the objectives and performance factors must be met for the all 
appropriate inquiries investigation to be complete. Although compliance 
with the all appropriate inquiries requirements ultimately will be 
determined in a court, the proposed rule allows the purchaser and 
environmental professional to determine the best process and sequence 
for collecting and analyzing all required information. For example, it 
may be appropriate in many situations for the historic records search 
required by proposed Sec.  312.24 and the search of government records 
required under proposed Sec.  312.26 be conducted prior to conducting 
interviews of past and present owners, operators, and occupants, as 
required under proposed Sec.  312.23. This may allow the purchaser or 
environmental professional to develop a general understanding of past 
uses and ownership of a property prior to interviewing owners and 
occupants and therefore make better use of the interviews to obtain 
information necessary to meet the performance factors or objectives of 
the overall investigation when conducting interviews of past and 
present owners or occupants. In addition, it often may be beneficial to 
conduct the required interviews of owners, operators and occupants 
prior to conducting an on-site visual inspection. Information obtained 
during the interviews may be useful for locating and inspecting 
potential sources of environmental concerns during the visual 
inspection.
    As stated in proposed Sec.  312.20(d), the all appropriate 
inquiries standards, as applicable to landowners seeking CERCLA 
liability protections as innocent landowners, bona fide prospective 
purchasers, and contiguous landowners, are intended to result in the 
identification of conditions indicative of releases and threatened 
releases of hazardous substances on, at, in, or to the subject property 
prior to the acquisition of the property. As established in proposed 
Sec.  312(d)(2), in the case of persons receiving federal brownfields 
grant monies under CERCLA Section 104(k) to conduct site 
characterizations and assessments, the all appropriate inquiries 
standards are intended to result in the identification of conditions 
indicative of releases and threatened releases of hazardous substances, 
as well as pollutants, contaminants, petroleum and petroleum products, 
and controlled substances (as defined in 21 U.S.C. 802) on, at, in, or 
to the subject property when conducting the assessment or 
characterization with the use of the grant funds and when the terms and 
conditions of the grant include such pollutants and contaminants within 
the scope of the grant. This expanded objective for brownfields grant 
recipients reflects the broad statutory definition of a ``brownfield 
site'' that allows EPA to provide grant monies to eligible entities 
(see CERCLA Section 104(k)(1)) for the assessment and cleanup of real 
property that is complicated by the presence or potential presences of 
hazardous substances, pollutants, contaminants, petroleum and petroleum 
products, and controlled substances (see CERCLA Section 101(39)).
    In performing the inquiries, including conducting interviews, 
collecting historical data and government records, inspecting the 
subject property and adjoining properties, and carrying out all other 
inquiries, all parties undertaking all appropriate inquiries must be 
attentive to the fact that the primary objectives of the proposed 
regulation are to identify the following types of information about the 
subject property prior to acquiring the property:
     Current and past property uses and occupancies;
     Current and past uses of hazardous substances;
     Waste management and disposal activities that could have 
caused releases or threatened releases of hazardous substances;

[[Page 52559]]

     Current and past corrective actions and response 
activities undertaken to address past and on-going releases of 
hazardous substances;
     Engineering controls;
     Institutional controls; and
     Properties adjoining or located nearby the subject 
property that have environmental conditions that could have resulted in 
conditions indicative of releases or threatened releases of hazardous 
substances on, at, in, or to the subject property.
    The Negotiated Rulemaking Committee also developed a set of 
performance factors for the conduct and performance of each of the 
individual proposed standards and practices that make up the proposed 
rule. These performance factors, which are included in proposed Sec.  
312.20(e), include: (1) Gather the information that is required for 
each standard and practice that is publicly available (or otherwise 
obtainable), obtainable from its source within reasonable time and cost 
constraints, and which can practicably be reviewed, and (2) review and 
evaluate the thoroughness and reliability of the information gathered 
in complying with each standard and practice, taking into account 
information gathered in the course of complying with the other 
standards and practices of this subpart. The proposed performance 
factors are provided as guidelines to be followed in conjunction with 
the proposed objectives for the all appropriate inquiries. EPA and the 
Negotiated Rulemaking Committee are not suggesting that the goal of the 
conduct of the all appropriate inquiries is to identify every available 
document and piece of information regarding a property and the 
environmental conditions on the property. Instead, the objective of the 
conduct of all appropriate inquiries is to develop an understanding of 
the conditions of the property and determine whether or not there are 
conditions indicative of releases and threatened releases of hazardous 
substances (and pollutants, contaminants, controlled substances, and 
petroleum and petroleum products, if applicable) on, at, in or to the 
subject property.
    The Agency requests comments on the proposed objectives and 
performance factors for the all appropriate inquiries requirements.
    Persons seeking to establish a basis for one of the CERCLA 
landowner liability protections also should keep in mind that an 
objective of the all appropriate inquiries standards and practices is 
to characterize the environmental conditions at a property that are 
indicative of releases or threatened releases, prior to acquiring the 
property. This information may facilitate compliance with the 
additional statutory requirements applicable for claiming the liability 
protections after acquiring the property.
    Failure to identify an environmental condition or identify a 
release or threatened release of a hazardous substance on, at, in or to 
a property during the conduct of all appropriate inquiries, does not 
relieve a landowner from complying with the other post-acquisition 
statutory requirements for obtaining the landowner liability 
protections. Landowners must comply with all the statutory requirements 
to obtain protection from liability. For example, an inability to 
identify a release or threatened release during the conduct of all 
appropriate inquiries does not negate the landowner's post-acquisition 
responsibilities under the statute to take reasonable steps to stop the 
release, prevent a threatened release, and prevent exposure to the 
release or threatened release.
6. What Are Institutional Controls?
    Under the proposed rule, those performing all appropriate inquiries 
must seek to identify institutional controls. As defined in proposed 
Sec.  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, 
protect the integrity of a remedy by limiting land or resource use, and 
provide information to modify behavior. For example, an institutional 
control might prohibit the drilling of a drinking water well in a 
contaminated aquifer or disturbing contaminated soils. Institutional 
controls may also be referred to as land use controls, activity and use 
limitations, etc., depending on the program under which a response 
action is conducted.
    Institutional controls are typically used whenever contamination 
precludes unlimited use and unrestricted exposure at the property. 
Thus, institutional controls may be needed both before and after 
completion of the remedial action. Institutional controls often must 
remain in place for an indefinite duration and, therefore, generally 
need to survive changes in property ownership (i.e., run with the land) 
to be legally and practically effective. Some common examples of 
institutional controls include zoning restrictions, building or 
excavation permits, well drilling prohibitions, easements and 
covenants.
    The importance of identifying institutional controls during all 
appropriate inquiries is twofold. First, institutional controls are 
usually necessary and important components of a remedy. Failure to 
abide by an institutional control may put people at risk of harmful 
exposure to hazardous substances. Second, an owner wishing to maintain 
protections from CERCLA liability as an innocent landowner, contiguous 
property owner, or bona fide prospective purchaser must fulfill ongoing 
obligations to comply with any land use restrictions established or 
relied on in connection with a response action and to not impede the 
effectiveness or integrity of any institutional control employed in 
connection with a response action. For a more detailed discussion of 
these requirements please see EPA, Interim Guidance Regarding Criteria 
Landowners Must Meet in Order to Quality for Bona Fide Prospective 
Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations 
on CERCLA Liability (Common Elements, 2003).
    Those persons conducting all appropriate inquiries may identify 
institutional controls through several of the standards and practices 
set forth in this rule. As noted, implementation of institutional 
controls may be accomplished through the use of several administrative 
and legal mechanisms, such as zoning, building permit requirements, 
easements, covenants, etc. Thus, for example, an easement implementing 
an institutional control might be identified through the review of 
chain of title documents under Sec.  312.24(a). Furthermore, interviews 
with past and present owners, operators, or occupants pursuant to Sec.  
312.23; and reviews of federal, tribal, state, and local government 
records under Sec.  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.
7. How Must Data Gaps Be Addressed in the Conduct of All Appropriate 
Inquiries?
    As defined in proposed Sec.  312.10, data gaps are a lack of or 
inability to obtain information required by the standards and practices 
listed in the proposed regulation, despite good faith efforts by the 
environmental professional or the prospective landowner (or grant

[[Page 52560]]

recipient) to gather such information pursuant to the proposed 
objectives for all appropriate inquiries. Proposed Sec.  312.20(f) 
requires environmental professionals, prospective landowners and grant 
recipients to identify data gaps that affect their ability to identify 
conditions indicative of releases or threatened releases of hazardous 
substances (and in the case of grant recipients pollutants, 
contaminants, petroleum, and controlled substances). In addition, the 
proposal would require such persons to identify the sources of 
information consulted to address, or fill, the data gaps, and require 
such persons to comment upon the significance of the data gaps with 
regard to the ability to identify conditions indicative of releases or 
threatened releases in the all appropriate inquiries report. In 
addition, proposed Sec.  312.21(c)(2) would require that environmental 
professionals include in the inquiries report an identification of data 
gaps that affect the ability of the environmental professional to 
identify conditions indicative of releases or threatened releases on, 
at, in, or to the subject property. Proposed Sec.  312.21(c)(2) also 
would require that the inquiries report include comments regarding the 
significance of any data gaps on the environmental professional's 
ability to provide an opinion as to whether the inquiries have 
identified conditions indicative of releases or threatened releases.
    A lack of information or an inability to obtain information that 
may affect the ability of an environmental professional to determine 
whether or not there are conditions indicative of a release or 
threatened release of a hazardous substance (or other contaminant) on, 
at, in or to a property can have significant consequences regarding a 
prospective landowner's ultimate ability to claim protection from 
CERCLA liability. A person's inability to obtain information regarding 
a property's ownership or use prior to acquiring a property can affect 
the landowner's ability to claim a protection from CERCLA liability 
after acquiring the property, if a lack of information results in the 
landowner's inability to comply with any other post-acquisition 
statutory obligations that are necessary to assert protection from 
CERCLA liability. For example, if a person does not identify, during 
the all appropriate inquiries prior to acquiring a property, a leaking 
underground storage tank that exists on the property, the landowner may 
not have sufficient information to comply with the statutory 
requirement to take reasonable steps to stop on-going releases after 
acquiring the property. This may result in an inability to claim 
protection against CERCLA liability for any on-going release. The 
proposed rule states the need to identify data gaps, address them when 
possible, and document their significance. Prospective landowners must 
consider the potential significance of any data gaps that may exist 
after conducting the pre-acquisition all appropriate inquiries on the 
landowner's ability to fulfill the additional statutory requirements 
after purchasing a property.
    If a person properly conducts all appropriate inquiries pursuant to 
this rule, including the requirements concerning data gaps at proposed 
Sec. Sec.  312.10, 312.20(f) and 312.21(c)(2), the person can fulfill 
the all appropriate inquiries requirements of CERCLA Sections 107(q), 
107(r), and 101(35), even when there are data gaps in the inquiries. 
However, as explained further in this preamble, a fulfillment of the 
all appropriate inquiries requirements does not, by itself, provide a 
person with a protection from or defense to CERCLA liability. An 
inability to identify a release or threatened release during the 
conduct of all appropriate inquiries does not negate the landowner's 
ongoing or continuing responsibilities under the statute, including the 
requirements to take reasonable steps to stop the release, prevent a 
threatened release, and prevent exposure to the release or threatened 
release once the landowner has acquired a property. Also, if an 
existing institutional control or land use restriction is not 
identified during the conduct of all appropriate inquiries prior to the 
acquisition of a property, a landowner is not exempt from complying 
with the institutional control or land use restriction after acquiring 
the property. None of the other statutory requirements for the 
liability protections is satisfied by the results of the all 
appropriate inquiries.
    The Agency notes that the mere fact that a purchaser conducted all 
appropriate inquiries does not provide any individual with a limitation 
from CERCLA liability. To qualify as a bona fide prospective purchaser, 
innocent landowner or a contiguous property owner, a person must, in 
addition to conducting all appropriate inquiries prior to acquiring a 
property, comply with all of the other statutory requirements. These 
criteria are summarized in section II.D. of this preamble. The all 
appropriate inquiries investigation may provide a purchaser with 
necessary information to comply with the other post-acquisition 
statutory requirements for obtaining liability protections. The failure 
to detect a release during the conduct of all appropriate inquiries 
does not exempt a landowner from his or her post-acquisition continuing 
obligations under other provisions of the statute.
    Proposed Sec.  312.20(f) points out that one way to address data 
gaps may be to conduct sampling and analysis. The Agency notes that the 
proposed regulation does not require that sampling and analysis be 
conducted to comply with the all appropriate inquiries requirements. 
The proposal only notes that sampling and analysis may be conducted, 
where appropriate, to obtain information to address data gaps.
    The Agency requests comments on the proposed provisions addressing 
data gaps. The Agency also explicitly requests comments on the decision 
not to require sampling as part of the proposed all appropriate 
inquiries standards.
8. Do Small Quantities of Hazardous Substances That Do Not Pose Threats 
to Human Health and the Environment Have To Be Identified in the 
Inquiries?
    The environmental professional should identify and evaluate all 
evidence of releases or threatened releases on, at, in or to the 
subject property, in accordance with generally accepted good commercial 
and customary standards and practices. However, as provided in proposed 
Sec.  312.20(g), the environmental professional need not specifically 
identify, in the written report prepared pursuant to proposed Sec.  
312.21(c), extremely small quantities or amounts of contamination, 
except as needed to fairly describe the evidence identified by the 
environmental professional of releases and threatened releases that 
could pose a threat to human health or the environment.

G. What Are the Proposed Requirements for Interviewing Past and Present 
Owners, Operators, and Occupants?

    CERCLA Section 101(35)(B)(iii)(II) requires EPA to include in the 
standards and practices for all appropriate inquiries ``interviews with 
past and present owners, operators, and occupants of the facility for 
the purpose of gathering information regarding the potential for 
contamination at the facility.'' The proposed requirements for 
conducting interviews of past and present owners, operators, and 
occupants of the subject property are included in proposed Sec.  
312.23. The proposal identifies these interviews as being within the 
scope of the inquiry of the environmental professional. Therefore, all 
interviews would either

[[Page 52561]]

have to be conducted by the environmental professional or within the 
supervision or responsible charge of the environmental professional. 
The intent is that an individual meeting the definition of an 
environmental professional (Sec.  312.10) must oversee the conduct of, 
or review and approve the results of, the interviews to ensure the 
interviews are conducted in compliance with the proposed objectives and 
performance factors (Sec.  312.20). EPA also intends this proposed 
provision be used to help ensure that the information obtained from the 
interviews provides sufficient information, in conjunction with the 
results of all other inquiries, to allow the environmental professional 
to render an opinion with regard to conditions at the property that may 
be indicative of releases or threatened releases of hazardous 
substances (and pollutants, contaminants, petroleum and controlled 
substances, if applicable).
    The proposed rule would require the environmental professional's 
inquiry to include interviewing the current owner and occupant of the 
subject property. In addition, the proposal provides that the inquiry 
of the environmental professional include interviews of additional 
individuals, including current and past facility managers with relevant 
knowledge of the property, past owners, occupants, or operators of the 
subject property, or employees of current and past occupants of the 
subject property as necessary to meet the proposed objectives and in 
accordance with the proposed performance factors. A primary objective 
of the interviews portion of the all appropriate inquiries is to obtain 
information regarding the current and past ownership and uses of the 
property, and obtain information regarding the conditions of the 
property. The proposed rule does not prescribe particular questions 
that must be asked during the interview. The Negotiated Rulemaking 
Committee and EPA concluded that the type and content of any questions 
asked during interviews will depend upon the site-specific conditions 
and circumstances and the extent of the environmental professional's 
(or other individual's under the supervision or responsible charge of 
the environmental professional) knowledge of the property prior to 
conducting the interviews. Therefore, the proposed rule does not 
include specific questions for the interviews, but requires that the 
interviews be conducted in a manner that achieves the proposed 
objectives and performance factors. EPA recommends that the 
environmental professional, or an individual under the supervision or 
responsible charge of the environmental professional, develop the 
interview questions prior to conducting the interview, and tailor the 
questions to the rule's objectives and performance factors. Interviews 
with current and past owners and occupants may provide opportunities to 
collect information about a property that is not previously recorded 
nor well documented or may provide valuable perspectives on how to find 
or interpret information required to complete other aspects of the all 
appropriate inquiries. Information gathered during the interview 
portion of the all appropriate inquiries may in turn provide valuable 
information for the on-site visual inspection. Persons conducting the 
interviews of current and past owners and occupants may want to spend 
some time during the interviews requesting information on the locations 
of operations or units used to store or manage hazardous substances on 
the property.
    In the case of properties where there may be more than one owner or 
occupant, or many owners or occupants, the proposed rule would require 
the inquiry to include interviews of major occupants and those 
occupants that are using, storing, treating, handling or disposing (or 
are likely to have used, stored, treated, handled or disposed) of 
hazardous substances (or pollutants, contaminants, petroleum, and 
controlled substances, as applicable) on the property. The proposed 
rule does not specify the number of owners and occupants to be 
interviewed. The environmental professional must perform this function 
in the manner that best fulfills the proposed objectives and 
performance factors for the inquiries in proposed Sec.  312.20(d) and 
(e). 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 proposed 
objectives and performance factors for the inquiries. Interviews must 
be conducted with individuals most likely to be knowledgeable about the 
current and past uses of the property, particularly with regard to 
current and past uses of hazardous substances on the property.
    In the case of abandoned properties, the proposed rule would 
require the inquiry of the environmental professional to include 
interviews with one or more owners or occupants of neighboring or 
nearby properties. The Committee recognized that in the case of 
abandoned properties, it most likely will be difficult to identify or 
interview current or past owners and occupants of the property. 
Therefore, the Committee recommended that the conduct of all 
appropriate inquiries include interviewing at least one owner or 
occupant of a neighboring property to obtain information regarding past 
owners or uses of property in cases where the subject property is 
abandoned. The proposed rule defines an abandoned property as a 
``property that can be presumed to be deserted, or an intent to 
relinquish possession or control can be inferred from the general 
disrepair or lack of activity thereon such that a reasonable person 
could believe that there was an intent on the part of the current owner 
to surrender rights to the property.'' As is the case with interviews 
conducted with current and past owners and occupants of the property, 
interview questions should be developed prior to the conduct of the 
interviews, and tailored to gather information to achieve the rule's 
objectives and performance factors.
    The Agency requests comments on the proposed standards for 
conducting interviews of past and present owners and occupants of a 
property. EPA also requests comments on the proposed requirements to 
interview owners or occupants of neighboring properties in the case of 
abandoned properties.

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

    Historical documents and records may contain essential information 
regarding past ownership and uses of a property that may provide 
information regarding the potential for environmental conditions 
indicative of releases or threatened releases of hazardous substances 
to be present at the property. Historical documents and records, among 
others, may include chain of title documents, land use records, aerial 
photographs of the property, fire insurance maps, and records held at 
local historical societies. The proposed rule, as proposed Sec.  
312.24, would require the inquiry of the environmental professional to 
include a review of historical documents and records for the subject 
property that document the ownership and use of the property for a 
period of time as far back in the history of the property as it can be 
shown that the property contained structures, or from the time the 
property was first used for residential, agricultural, commercial, 
industrial, or government purposes.
    The statutory criteria in the Brownfields Amendments require that 
reviews of historical sources of information be conducted to 
``determine

[[Page 52562]]

previous uses and occupancies of the real property since the property 
was first developed.'' The Committee recommended, and EPA is proposing, 
that records be searched for information on the property covering a 
time period as far back in history as there is documentation that the 
property contained structures or was placed into use of some form. The 
Committee believed, and EPA agrees, that this provision follows 
Congressional intent. Historical documents and information must be 
reviewed to obtain information relevant to the proposed objectives and 
performance factors of proposed Sec.  312.20(d) and (e). If a search of 
historical sources of information results in an inability of the 
inquiry to document previous uses and occupancies of the property as 
far back in history as there is documentation that the property 
contained structures or was placed into use of some form and such 
information cannot be addressed through the implementation of other 
inquiries or regulatory criteria, then the unavailable information must 
be documented as a data gap to the inquiries. The proposed requirements 
of Sec. Sec.  312.20(f) and 312.21(c)(2) are applicable to all 
instances in the all appropriate inquiries that result in data gaps.
    The proposed rule would not require that any specific type of 
historic information be collected. In particular, the proposed rule 
does not require that persons obtain a chain of title document for the 
property. The proposed rule provides that the purchaser or 
environmental professional use professional judgment when determining 
what types of historical documentation may provide the most useful 
information about a property's ownership, uses, and potential 
environmental conditions when seeking to comply with the proposed 
objectives and performance factors for the inquiries. The Negotiated 
Rulemaking Committee considered developing a specific list of 
historical documents that must be reviewed for each property. However, 
given the wide variety of property types and locations to which this 
proposed rule could apply, the Committee determined that any list of 
specific documents could result in undue burdens on many property 
owners due to difficulties in collecting any specific document for any 
particular property or property location. Therefore, the Committee 
recommended, and EPA is proposing, that the review of historical 
documents requirement allow the purchaser and environmental 
professional to use their judgment, in accordance with generally 
accepted good commercial and customary standards and practices, in 
locating the best available sources of historical information and 
reviewing such sources for information necessary to comply with the 
rule's objectives and performance factors.
    As explained in section III.E.2 of this preamble, the purchaser or 
environmental professional may make use of previously collected 
information about a property when conducting all appropriate inquiries. 
The collection of historical information about a property may be a 
particular case where previously collected information may be valuable, 
as well as easily accessible. In addition, nothing in the proposed rule 
prohibits a person from using secondary sources (e.g., a previously 
conducted title search) when gathering information about historical 
ownership and usage of a property. As explained in section III.E.2, 
information must be updated if it was last collected more than 180 days 
prior to the date of acquisition of the property.
    The Agency requests comments on the proposed standards for reviews 
of historical sources of information.

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

    For purposes of this rule, recorded environmental cleanup liens are 
encumbrances on property for the recovery of incurred cleanup costs on 
the part of a state, tribal or federal government agency or other third 
party. Recorded environmental cleanup liens often provide an indication 
that environmental conditions currently or previously existed on a 
property that may have included the release or threatened release of a 
hazardous substance. The existence of an environmental cleanup lien 
should be used as an indicator of potential environmental concerns and 
as a basis for further investigation into the potential existence of 
on-going or continued releases or threatened releases of hazardous 
substances on, at, in, or to the subject property.
    The Committee recommended, and EPA is proposing at proposed Sec.  
312.25, that the search for recorded environmental cleanup liens be 
performed either by the purchaser or through the inquiry of the 
environmental professional. The search for such liens may not 
necessarily require the expertise of an environmental professional and 
therefore may be more efficiently or more 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 format by state or local government agencies. If such information 
is collected by the purchaser, or other agent of the purchaser who is 
not under the supervision or responsible charge of the environmental 
professional, the proposed rule would require that any information on 
environmental cleanup liens that is collected on the part of the 
purchaser be provided to the environmental professional. The 
environmental professional can then make use of such information during 
the conduct of the all appropriate inquiries and when rendering 
conclusions or opinions regarding the environmental conditions of the 
property.
    The Committee recommended that the all appropriate inquiries 
regulation require that purchasers and environmental professionals 
search for those environmental cleanup liens that are recorded under 
federal, tribal, state, or local law. Liens that are not recorded by 
government programs or agencies are not addressed by the language of 
the statute on the criteria for all appropriate inquiries (the statute 
speaks only of recorded liens). One caution about the conclusion one 
can draw from not finding a recorded environmental cleanup lien is that 
if EPA is in the process of cleaning up a site at the time of 
acquisition there is nothing to prevent EPA from recording such a lien 
post acquisition. This type of lien, a so-called windfall lien, has no 
statute of limitations on it and arises at the time EPA first spends 
Superfund money. States and localities may have similar mechanisms.
    The Agency requests comments on the proposed standards for 
searching for recorded environmental cleanup liens.

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

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

[[Page 52563]]

such information, may include information on previously reported 
releases of hazardous substances, pollutants, contaminants, petroleum 
products and controlled substances. Government records may include 
information on institutional controls related to a particular property. 
For example, in the case of NPL sites, EPA Superfund records, including 
Action Memoranda and Records of Decision, may have information on 
institutional controls in place at such properties. Government records 
also may include information on activities or property uses that could 
cause releases or threatened releases to be present at a property. The 
proposed rule, at Sec.  312.26(b), requires that federal, tribal, 
state, and local government records be searched for information 
indicative of environmental conditions at the subject property. The 
types of government records or data bases of records searched should 
include:
    1. Government records of reported releases or threatened releases 
at the subject property, including previously conducted site 
investigation reports.
    2. Government records of activities, conditions, or incidents 
likely to cause or contribute to releases or threatened releases, 
including records documenting regulatory permits that were issued to 
current or previous owners or operators at the property for waste 
management activities and government records that identify the subject 
property as the location of landfills, storage tanks, or as the 
location for generating and handling activities for hazardous 
substances, pollutants, contaminants, petroleum or controlled 
substances.
    3. CERCLIS records--EPA's Comprehensive Environmental Response, 
Compensation, and Liability Information System (CERCLIS) database 
contains general information on sites across the nation and in the U.S. 
territories that have been assessed by EPA, including sites listed on 
the National Priorities List (NPL). CERCLIS includes information on 
facility location, status, contaminants, institutional controls, and 
actions taken at particular sites. CERCLIS also contains information on 
sites being assessed under the Superfund Program, hazardous waste sites 
and potential hazardous waste sites.
    4. Government-maintained records of public risks (if available)--
the all appropriate inquiries government records search should include 
a search for available records documenting public health threats or 
concerns caused by, or related to, activities currently or previously 
conducted at the site.
    5. Emergency Response Notification System (ERNS) records--ERNS is 
EPA's data base of oil and hazardous substance spill reports. The data 
base can be searched for information on reported spills of oil and 
hazardous substances by state.
    6. Government registries, or publicly available lists of 
engineering controls, institutional controls, and land use 
restrictions. The all appropriate inquiries government records search 
must include a search for registries or publicly available lists of 
recorded engineering and institutional controls and recorded land use 
restrictions. Such records may be useful in identifying past releases 
on, at, in, or to the subject property or identifying continuing 
environmental conditions at the property.
    In the case of all the government records listed above, the 
requirements of this criterion may be met by searching data bases 
containing the same government records mentioned in the list above that 
are accessible and available through government entities or private 
sources. The review of actual records is not necessary, provided that 
the same information contained in the government records and required 
to meet the requirements of this criterion and achieve the proposed 
objectives and performance factors for these regulations is attainable 
by searching available data bases.
    In addition to reviewing government records, or data bases of 
information contained in government records, for information about the 
subject property, the proposed rule would require that government 
records for nearby and adjoining properties be reviewed to assess the 
potential impact to the subject property from hazardous substances and 
petroleum contamination migrating from contiguous or nearby properties. 
The proposed rule would require all appropriate inquiries to include a 
search of government records or data bases for information about nearby 
or adjoining properties to assess potential impacts to the 
environmental conditions of the subject property from off-site sources 
of contamination. The proposed rule would require that government 
records be searched to identify information relative to the proposed 
objectives and in accordance with the performance factors on: (1) 
Adjoining and nearby properties for which there are governmental 
records of reported releases or threatened releases (e.g., properties 
currently listed on the National Priorities List (NPL), properties 
subject to corrective action orders under the Resource Conservation and 
Recovery Act (RCRA), properties with reported releases from leaking 
underground storage tanks); (2) adjoining and nearby properties 
previously identified or regulated by a government entity due to 
environmental conditions at a site (e.g., properties previously listed 
on the NPL, former CERCLIS sites with notices of no further response 
actions planned); and (3) adjoining and nearby properties that have 
government-issued permits to conduct waste management activities (e.g., 
facilities permitted to manage RCRA hazardous wastes).
    In the case of government records searches for nearby properties, 
the proposed rule (at Sec.  312.26(c)) includes minimum search 
distances for obtaining and reviewing records or data bases concerning 
activities and facilities located on nearby properties. The minimum 
search distances proposed are based on the Negotiated Rulemaking 
Committee's professional judgment regarding the value of obtaining 
information on potential releases or threatened releases from 
properties and activities within a given distance from the subject 
property that could have an impact on the subject property. For 
example, government records identifying properties listed on the NPL 
should be searched to obtain information on NPL sites located within 
one-half mile of the subject property. The Committee generally believed 
that NPL sites located beyond one-half mile of a property most likely 
would have little or no impact on the environmental conditions at the 
subject property. For nearby properties, the proposed rule includes 
proposed minimum search distances (e.g., properties located either 
within one mile or one-half mile of the subject property) for each type 
of record to be searched to facilitate defining the scope of the 
records searches. In the case of two types of records, records of RCRA 
small quantity and large quantity generators and records of registered 
storage tanks, the all appropriate inquiries search need only identify 
RCRA generators and storage tanks located on adjoining properties (the 
proposal contains no requirement to search for these two types 
government records for other nearby properties).
    EPA and the Negotiated Rulemaking Committee realize that property-
specific and regional conditions may influence the appropriateness of 
the proposed search distances for any given type of record and 
property. Appropriate search distances for properties located in rural 
settings may differ from appropriate search distances for urban 
settings. In addition, ground water flow direction, depth to ground 
water, arid weather

[[Page 52564]]

conditions, the types of facilities located on nearby properties, as 
well as other factors may influence the degree of impact to a property 
from off-site sources. Therefore, the proposed rule would allow for the 
environmental professional to adjust any or all of the proposed minimum 
search distances for any of the record types, based upon professional 
judgment and the consideration of site-specific conditions or 
circumstances when seeking to achieve the proposed objectives and 
performance factors for the required inquiries. The proposed rule 
provides that the environmental professional may consider one or more 
of the following factors when determining an alternative appropriate 
search distance:
     The nature and extent of a release;
     Geologic, hydrogeologic, or topographic conditions of the 
subject property and surrounding environment;
     Land use or development densities;
     The property type;
     Existing or past uses of surrounding properties;
     Potential migration pathways (e.g., groundwater flow 
direction, prevalent wind direction); or
     Other relevant factors.
    The proposed rule would require environmental professionals to 
document the rationale for making any modifications to the required 
minimum search distances included in the proposed regulation.
    The Agency requests comments on the proposed standards for 
reviewing federal, state, tribal and local government records.

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

1. Visual Inspections of the Subject Property
    The proposed rule, at Sec.  312.27, would require that a visual on-
site inspection be conducted of the subject property. The proposed 
visual on-site inspection requirements include inspecting the 
facilities and any improvements on the property, as well as visually 
inspecting areas on the property where hazardous substances may 
currently be or in the past may have been used, stored, treated, 
handled, or disposed of. During their deliberations, members of the 
Negotiated Rulemaking Committee overwhelmingly stressed the need for 
every all appropriate inquiries investigation to include an on-site 
inspection. Many Committee members pointed out that on-site inspections 
of a property can provide the best source of information regarding 
indications of environmental conditions on a property. The Committee 
recommended, and EPA included in today's proposed rule, a requirement 
that a visual on-site inspection of the subject property be conducted 
in all but a few very limited cases and that physical limitations to 
the visual on-site inspection (e.g., weather conditions, physical 
obstructions) be documented.
    We note that persons conducting all appropriate inquiries with 
monies provided in a grant awarded under CERCLA Section 104(k)(2)(B) 
must, during the on-site visual inspection, inspect the facilities and 
any improvements on the property, as well as visually inspect any other 
areas on the property where hazardous substances may currently be or in 
the past may have been used, stored, treated, handled, or disposed. In 
addition, depending on the terms and conditions of the grant or 
cooperative agreement, the on-site visual inspection requirements could 
include inspecting the facilities, improvements, and other areas of the 
property where pollutants, contaminants, petroleum and petroleum 
products, or controlled substances may currently be or in the past may 
have been used, stored, treated, handled, or disposed.
    The visual on-site inspection of a property during the conduct of 
all appropriate inquiries may be the most important aspect of the 
inquiries and the primary source of information regarding the 
environmental conditions on the property. In all cases, every effort 
must be made to conduct an on-site visual inspection of a property when 
conducting all appropriate inquiries.
    Some members of the Committee raised concerns regarding a 
purchaser's or environmental professional's inability to obtain on-site 
access to a property in limited circumstances. Some members noted that 
extreme and prolonged weather conditions and remote locations can 
impede access to a property. Another limited circumstance that could 
result in a purchaser or environmental professional not being able to 
gain on-site access to a property during the all appropriate inquiries 
is the situation where a local government, a non-profit organization, 
or other party seeks to obtain ownership of a property, but the owner 
refuses to provide access to the local government or non-profit 
organization and the local government or non-profit organization 
exercises all good faith efforts to gain access to the property (e.g., 
seeking assistance from state government officials) and remains unable 
to gain on-site access. Such circumstances may arise due to the unique 
nature of such transactions. Unlike commercial property transactions 
conducted by two private parties, where the economic and legal 
liability interests of both parties and the ability of either party to 
abandon the transaction can work in favor of the purchasing party's 
ability to gain access to a property prior to acquisition, property 
transactions between a private party and a local government or non-
profit organization acting on behalf of the public interest, may not 
afford the local government or non-profit organization the same 
leverage, even if it is indeed in the public interest to attain 
ownership of the property. This situation may occur when the local 
government or non-profit association seeks to assess, cleanup, and 
revitalize an area, but the owner of the property is unreachable, 
unavailable, or otherwise unwilling to provide access to the property. 
In such limited circumstances, the public benefit attained from a 
government entity, or the non-profit organization, gaining ownership of 
a property may outweigh the need to gain on-site access to the property 
prior to the transfer of ownership.
    The proposed rule would require, in such unusual circumstances, 
that the purchaser make good faith efforts to gain access to the 
property. In addition, the proposal notes that the mere refusal of a 
property owner to allow the purchaser to have access to the property 
does not constitute an unusual circumstance, absent the making of good 
faith efforts to otherwise gain access. The proposed rule, at proposed 
Sec.  312.10, would define ``good faith'' as ``the absence of any 
intention to seek an unfair advantage or to defraud another party; an 
honest and sincere intention to fulfill one's obligations in the 
conduct or transaction concerned.''
    In those unusual circumstances where a purchaser or an 
environmental professional, after good faith efforts, cannot gain 
access to a property and therefore cannot conduct an on-site visual 
inspection, the proposed rule would require that the property be 
visually inspected, or observed, by another method, such as through the 
use of aerial photography, or be inspected, or observed, from the 
nearest accessible vantage point, such as the property line or a public 
road that runs through or along the property. In addition, the proposed 
rule would require that the all appropriate inquiries report includes 
documentation of efforts undertaken by the purchaser or the 
environmental professional to obtain on-site access to the subject 
property and includes an explanation of why good faith efforts to gain 
access to subject property were unsuccessful. The proposed rule also

[[Page 52565]]

would require that the all appropriate inquiries report must include 
documentation of other sources of information that were consulted to 
obtain information necessary to achieve the proposed objectives and 
performance factors. This documentation should include comments, from 
the environmental professional who signs the report, regarding any 
significant limitations to the ability of the environmental 
professional to identify conditions indicative of releases or 
threatened releases on, at, in, or to the subject property, that may 
arise due to the inability of the purchaser or environmental 
professional to obtain on-site access to the property.
    In addition, in those limited cases where an on-site visual 
inspection cannot be conducted prior to the date a property is 
acquired, EPA recommends that once a property is purchased, the 
property owner conduct an on-site visual inspection of the property. 
Such an inspection may provide important information necessary for the 
property owner to fully comply with the other statutory provisions, 
including on-going obligations, governing the CERCLA liability 
protections.
2. Visual Inspections of Adjoining Properties
    The proposed rule, at proposed Sec.  312.27, would require that the 
all appropriate inquiries investigation include visual inspections or 
observations of properties that adjoin the subject property. Visual 
inspections of adjoining properties may provide excellent information 
on the potential for the subject property to be affected by migrating 
contamination from adjoining properties. The Negotiated Rulemaking 
Committee discussed the merits and legalities of requiring parties to 
conduct on-site visual inspections of adjoining properties. Although 
several Committee members expressed a preference for visual inspections 
to be conducted on-site, the Committee was concerned that requiring 
purchasers or environmental professionals to gain on-site access to 
properties adjoined to the subject property would not be practicable. 
Therefore, the Committee recommended and EPA is proposing that visual 
observations of adjoining properties be conducted from the subject 
property's property line, one or more public rights-of-way, or other 
vantage point (e.g., via aerial photography). Where practicable, a 
visual on-site inspection is recommended and may provide greater 
specificity of information. The proposed rule would require that the 
visual observations of adjoining properties include observing areas 
where hazardous substances currently may be, or previously may have 
been, stored, treated, handled, or disposed. Visual inspections or 
observations of adjoining properties otherwise also must be conducted 
to achieve the proposed objectives and performance goals for the all 
appropriate inquiries. Physical limitations to the visual inspections 
or observations of adjoining properties should be noted.
    The Agency requests comments on the proposed requirements for 
conducting visual inspections of the subject property and adjoining 
properties, including the proposed exemption from the on-site visual 
inspection requirement in cases where good faith efforts result in an 
ability to gain access to a property.
3. Role of the Environmental Professional in the Visual Inspection
    As mentioned in section III.D.4 of this preamble, EPA and the 
Negotiated Rulemaking Committee considered proposing to require all 
activities in the all appropriate inquiries investigation to be 
conducted by persons meeting the proposed definition of an 
environmental professional. Requiring that an environmental 
professional conduct all activities could ensure that all data 
collection and investigations are conducted in a manner and to a degree 
of specificity that allows the environmental professional to make best 
use of all information in forming opinions and conclusions regarding 
the environmental conditions at a property. However, after careful 
review of the specific activities included in the statutory criteria 
and conducting an assessment of the costs and burdens of such a 
requirement, EPA and the Committee concluded that it is not necessary 
for each and every regulatory requirement to be conducted by an 
environmental professional. As outlined in section III.E.1 of this 
preamble, the proposed rule would allow for certain aspects of the 
inquiries to be conducted solely by the purchaser or property owner, 
while providing that all other aspects be conducted under the 
supervision or responsible charge of the environmental professional. 
Among the activities that the proposed rule would require to be 
conducted under the supervision or responsible charge of an 
environmental professional is the on-site visual inspection.
    It is EPA's recommendation that visual inspections of the subject 
property and adjoining properties be conducted by an individual who 
meets the proposed regulatory definition of an environmental 
professional. Although many other aspects of the all appropriate 
inquiries may be conducted sufficiently and accurately by individuals 
other than an environmental professional (e.g., a research associate or 
librarian may be well qualified to search government records, an 
attorney may be well qualified to conduct a search for an environmental 
lien), EPA believes that an environmental professional is best 
qualified to conduct a visual inspection and locate and interpret 
information regarding the physical and geological characteristics of 
the property as well as information on the location and condition of 
equipment and other resources located on the property. EPA recognizes 
that other individuals who do not meet the proposed regulatory 
definition of an environmental professional, particularly when these 
individuals are conducting such activities under the supervision or 
responsible charge of an environmental professional, may have the 
required skills and knowledge to conduct an adequate on-site visual 
inspection. However, EPA believes that the professional judgment of an 
individual meeting the proposed definition of an environmental 
professional is vital to ensuring that all circumstances at the 
property indicative of environmental conditions and potential releases 
or threatened releases are properly identified and analyzed. An 
environmental professional is best qualified for identifying such 
situations and conditions and rendering a judgment or opinion regarding 
the potential existence of conditions indicative of environmental 
concerns.
    An environmental professional should, at a minimum, be involved in 
planning for the on-site visual inspection. Information collected 
during the conduct of other required activities such as interviews with 
owners and occupants and reviews of government records should be 
reviewed in preparing for the on-site visual inspection. Although the 
proposed rule would not require the activities proposed as part of all 
appropriate inquiries investigation to be done in any particular 
sequence, EPA recommends that the on-site visual inspection occur after 
many of the other activities are completed to allow the environmental 
professional or other individuals conducting the inspections to make 
the best use of available information about the property when preparing 
for and conducting the on-site visual inspection. For example, if 
during interviews with owners and occupants of the property or during 
the review of government records, it becomes apparent that a property

[[Page 52566]]

currently used for general retail purposes once was owned by 
individuals issued permits for the storage or treatment of hazardous 
wastes, this could be noted during the preparation for the on-site 
visual inspection and the persons conducting the inspection should be 
prepared to look for remaining storage units or evidence of conditions 
caused by past spills or releases from on-site management units. In 
addition, it may be important to consider any specialized knowledge 
held by the purchaser or the environmental professional regarding 
current or past uses and ownership of the property prior to conducting 
the on-site visual inspection.

L. What Are the Proposed Requirements for the Inclusion of Specialized 
Knowledge or Experience on the Part of the ``Defendant?''

    Because the conduct of all appropriate inquiries is one element of 
a protection against CERCLA liability, and the situation under which a 
property owner may need to assert that he or she qualifies for 
liability protection is when the property owner must defend his or her 
status as an innocent landowner, a contiguous property owner, or a bona 
fide prospective purchaser, the statute refers to the property owner, 
or the user of the all appropriate inquiries investigation, as the 
``defendant.'' The Committee believed, and EPA agrees, that 
Congressional intent is to ensure that any information or special 
knowledge held by the purchaser or property owner with regard to a 
property and the conditions or situations present at the subject 
property be included in the pre-acquisition inquiries and be 
considered, along with all information collected during the conduct of 
all appropriate inquiries, when an environmental professional renders a 
judgment or opinion regarding the presence of environmental conditions 
indicative of releases or potentials releases of hazardous substances 
on, at, in, or to the subject property. This information should be 
revealed to all parties conducting the all appropriate inquiries and 
considered earlier in the inquiries process so that any specialized 
knowledge may be taken into account through the conduct of the other 
required aspects of the all appropriate inquiries.
    Congress first added the innocent landowner defense to CERCLA in 
1986. The Brownfields Amendments amended the innocent landowner defense 
and added to CERCLA the bona fide prospective purchaser and the 
contiguous property owner liability protections to CERCLA liability. 
The 1986 amendments to CERCLA established that among other elements 
necessary for a defendant to successfully assert the innocent landowner 
defense, a defendant must demonstrate that he or she had, at the time 
of acquisition of the property in question, made all appropriate 
inquiries into previous ownership and uses of the property. Congress 
directed courts evaluating a defendant's showing of all appropriate 
inquiries to take into account, among other things, ``any specialized 
knowledge or experience on the part of the defendant.'' Nothing in 
today's proposed rule would change the nature or intent of this 
requirement as it has existed in the statute since 1986 or in how the 
courts have interpreted the requirement to date.
    The Negotiated Rulemaking Committee decided not to extend the 
proposed requirements for the consideration of any specialized 
knowledge or experience of the property owner beyond what was 
previously required under CERCLA and established through case law. The 
proposed rule, at proposed Sec.  312.28, would require that all 
appropriate inquiries include specialized knowledge on the part of the 
prospective property owner of the subject property, the area 
surrounding the subject property, the conditions of adjoining 
properties, as well as other experience relative to the inquiries that 
may be applicable to identifying conditions indicative of releases or 
threatened releases at the subject property. The proposed rule also 
would require that the results of the inquiries take into account any 
specialized knowledge related to the property, surrounding areas, and 
adjoining properties held by the persons responsible for undertaking 
the inquiries, including any specialized knowledge on the part of the 
environmental professional.
    In reviewing existing case law related to the innocent landowner 
defense, courts appear to have interpreted the ``specialized 
knowledge'' factor to mean that the professional or personal experience 
of the defendant may be taken into account when analyzing whether the 
defendant made all appropriate inquiries. For example, in Foster v. 
United States, 922 F. Supp. 642 (D. D.C. 1996), the owner of a property 
formerly owned by the General Services Administration and contaminated 
by, among other things, lead, mercury and PCBs, brought an action 
against the United States and District of Columbia, prior owners or 
operators of the site. The plaintiff was a principal in Long & Foster 
companies and purchased the property through a general partnership, and 
received it by quitclaim deed. The U.S. and D.C. counterclaimed against 
plaintiff. Foster asserted the innocent landowner defense. The court 
rejected the plaintiff's claim based in part on the defendant's 
specialized knowledge. The court found that his specialized knowledge 
included his position at Long & Foster, which did hundreds of millions 
of dollars of commercial real estate transactions, and his position as 
a partner in at least 15 commercial real estate partnerships. The 
partnership was involved as an investor in a number of real estate 
transactions, some of which involved industrial or commercial or mixed-
use property. The court ruled that ``it cannot be said that [the 
partnership] is a group unknowledgeable or inexperienced in commercial 
real estate transactions.'' Foster, 922 F. Supp. at 656.
    In American National Bank and Trust Co. of Chicago v. Harcros 
Chemicals, Inc., 1997 WL 281295 (N.D. Ill. 1997), the plaintiff was a 
company ``involved in brownfields development, purchasing 
environmentally distressed properties at a discount, cleaning them up, 
and selling them for a profit.'' American National Bank, 1997 WL 281295 
at *4. As a counter-claim defendant, the company asserted it was an 
innocent landowner and therefore not liable pursuant to CERCLA. The 
court found that among other reasons the defense failed because the 
company possessed specialized knowledge. The court ruled that the 
company was an expert environmental firm and possessed knowledge that 
should have alerted it to the potential problems at the site.
    EPA points out that the proposed rule requires that the specialized 
knowledge of prospective landowners and the persons responsible for 
undertaking the all appropriate inquiries be taken into account when 
conducting the all appropriate inquiries for the purposes of 
identifying conditions indicative of releases or threatened releases at 
a property. However, as evidenced by the case law cited above, the 
determination of whether or not the all appropriate inquiries standard 
is met with regard to specialized knowledge remains within the 
discretion of the courts.
    The Agency requests comments on the proposed provisions governing 
the inclusion of specialized knowledge or experience on the part of the 
purchaser and the environmental professional.

[[Page 52567]]

M. What Are the Proposed Requirements for the Relationship of the 
Purchase Price to the Value of the Property, if the Property Was Not 
Contaminated?

    The proposed rule, at Sec.  312.29, would require that the 
purchaser of the property consider whether or not the purchase price 
paid for the property reflects the fair market value of the property, 
assuming that the property is not contaminated. There may be many 
reasons that the price paid for a particular property is not an 
accurate reflection of the fair market value. The proposed rule would 
require that the purchaser consider whether any differential between 
the purchase price and the value of the property is due to the presence 
of releases or threatened releases of hazardous substances at the 
property.
    The proposed rule does not require that a real estate appraisal be 
conducted to achieve compliance with this criterion. Although the 
Negotiated Rulemaking Committee discussed the potential value in 
requiring that an appraisal be conducted, the Committee determined that 
a formal appraisal is not necessary for the purchaser to make a general 
determination of whether the price paid for a property reflects its 
market value. Such a determination may be made by comparing the price 
paid for a particular property to prices paid for similar properties 
located in the same vicinity as the subject property, or by consulting 
a real estate expert familiar with properties in the general locality 
and who may be able to provide a comparability analysis. The objective 
is not to ascertain the exact value of the property, but to determine 
whether or not the purchase price paid for the property is reflective 
of its market value. Significant differences in the purchase price and 
market value of a property should be noted and the reasons for any 
differences should be noted. The Agency requests comments on these 
proposed requirements.

N. What Are the Proposed Requirements for Commonly Known or Reasonably 
Ascertainable Information About the Property?

    The proposed rule, at proposed Sec.  312.30, would require that 
landowners, brownfields grantees, and environmental professionals 
conducting the all appropriate inquiries consider commonly known 
information about the potential environmental conditions at a property. 
Commonly known information generally is information available in the 
local community that may be ascertained from the owner or occupant of a 
property, members of the local community, including owners or occupants 
of neighboring properties to the subject property, local or state 
government officials, local media sources, and local libraries and 
historical societies. Much of this information may be incidental to 
other information collected during the inquiries, but such information 
may be valuable to identifying conditions indicative of releases or 
threatened releases at the subject property. For example, neighboring 
property owners and local community members may have information 
regarding undocumented uses of a property during periods when the 
property was idle or abandoned. Local community sources may be good 
sources of information for understanding uses of a property and 
activities conducted at a property in the case of abandoned properties.
    The collection and use of commonly known information about a 
property must be done in connection with the collection of all other 
required information for the purposes of achieving the proposed 
objectives and performance factors contained in proposed Sec.  312.20. 
EPA recommends that persons undertaking the all appropriate inquiries 
make efforts to collect information on the subject property from a 
variety of sources, including sources located in the community in which 
the property is located, to the extent necessary to achieve the 
objectives and performance factors of Sec.  312.20(d) and (e). Opinions 
included in the all appropriate inquiries report should be based upon a 
balance of all information collected. All information collected, 
including information available from the local community, should be 
considered in the final evaluation.
    As mentioned above in section III.K., the Brownfields Amendments to 
CERCLA amended the innocent landowner defense previously added to 
CERCLA in 1986. In addition, the Brownfields Amendments added to CERCLA 
the bona fide prospective purchaser and the contiguous property owner 
liability protections to the statute. The 1986 amendments to CERCLA 
established that among other elements necessary for a defendant to 
successfully assert the innocent landowner defense, a defendant must 
take into account commonly known or reasonably ascertainable 
information about the property. Nothing in today's proposed rule would 
change the nature or intent of this requirement as it has existed in 
the statute since 1986 or in how the courts have interpreted the 
requirement to date.
    There is some case law, related to the innocent landowner defense, 
that provide guidance for considering commonly known or reasonably 
ascertainable information about the property. For example, in Wickland 
Oil Terminals v. Asarco, Inc., 1988 WL 167247 (N.D. Cal. 1988), the 
court noted that Wickland was aware of potential water quality problems 
at the subject property due to large piles of mining slag stored at the 
property, even though Wickland argued that previous owners withheld 
such information, because the information was available from other 
sources consulted by Wickland prior to purchasing the property, 
including the Regional Water Quality Control Board and a consulting 
firm hired by Wickland. Such information was commonly known by local 
sources and therefore should have been considered by Wickland during 
its conduct of all appropriate inquiries.
    In Hemingway Transport Inc. v. Kahn, 174 F.R. 148 (Bankr. D. Mass. 
1994), the court ruled against an innocent landowner claim because it 
found ``that had [the defendants] exerted a modicum of effort they may 
easily have discovered information that at a minimum would have 
compelled them to inspect the property further * * * the [defendants] 
could have taken a few significant steps, literally, to minimize their 
liability and discover information about the property * * *'' The court 
cited that one action the defendants should have taken to collect 
available information about the property is phone calls to city 
officials to inquire about conditions at the property.
    EPA requests comment on the proposed requirements for including 
within the all appropriate inquiries commonly known or reasonably 
ascertainable information about the property.

O. What Are the Proposed Requirements for ``The Degree of Obviousness 
of the Presence or Likely Presence of Contamination at the Property, 
and the Ability To Detect the Contamination by Appropriate 
Investigation?'

    The proposed rule, at Sec.  312.31, would require that persons 
conducting the all appropriate inquiries consider all the information 
collected during the conduct of the inquiries in totality to ascertain 
the potential presence of a release or threatened release at the 
property. Persons conducting all appropriate inquiries, following the 
collection of all required information, must assess whether or not an 
obvious conclusion may be drawn that there are conditions indicative of 
a release or threatened release of hazardous

[[Page 52568]]

substances (or other substances, pollutants or contaminants) on, at, 
in, or to the property. In addition, the proposed rule would require 
parties to consider whether or not the totality of information 
collected prior to acquiring the property indicates that the parties 
should be able to detect a release or threatened release on, at, in, or 
to the property. Persons should undertake these considerations keeping 
in mind that ultimately it is for a court to assess the degree of 
obviousness of contamination.
    The previous innocent landowner defense (added to CERCLA in 1986) 
required a court to consider the degree of obviousness of the presence 
or likely presence of contamination at a property, and the ability of 
the defendant (i.e., the landowner) to detect the contamination by 
appropriate investigation. Nothing in today's proposed rule would 
change the nature or intent of this requirement as it has existed in 
the statute since 1986 or in how the courts have interpreted the 
requirement to date. Case law relevant to this criterion indicates that 
defendants may not be able to claim an innocent landowner defense if a 
preponderance of information available to a prospective landowner prior 
to acquiring the property indicates that the defendant should have 
concluded that there is a high likelihood of contamination at the site. 
In some cases (e.g., Hemingway Transport Inc. v. Kahn, 174 F.R. 148 
(Bankr. D. Mass. 1994), and Foster v. United States, 922 F. Supp. 642 
(D.D.C. 1996), courts have ruled that if a defendant had done a bit 
more visual inspection or further investigation, based upon information 
available to the defendant prior to acquiring the property, it would 
have been obvious that the property was contaminated. In Foster v. 
United States, the court determined that the innocent landowner defense 
was not available based in part on the fact that the partnership 
presumed the site was free of contamination based upon cursory visual 
inspections despite evidence in the record that, at the time of the 
sale, the soil was visibly stained by PCB-contaminated oil. In 
addition, although the property was located in a run-down industrial 
area, the defendant did no investigation into the environmental 
conditions at the site prior to acquiring the property.
    With regard to the conduct of sampling and analysis, today's 
proposed rule would not require sampling and analysis as part of the 
all appropriate inquiries investigation. However, members of the 
Committee recognized that sampling and analysis may be valuable in 
determining the possible presence and extent of potential contamination 
at a property. In addition, the fact that the all appropriate inquiry 
standards would not require sampling and analysis may not prevent a 
court from concluding that, under the circumstances of a particular 
case, sampling and analysis should have been conducted to meet ``the 
degree of obviousness of the presence or likely presence of 
contamination at the property, and the ability to detect the 
contamination by appropriate investigation'' criterion and obtain 
protection from CERCLA liability. Prospective landowners should keep in 
mind that the conduct of all appropriate inquiries prior to purchasing 
a property is only one requirement to which a purchaser must comply to 
claim protection from CERCLA liability once the purchase has taken 
place. The statute requires that persons, after acquiring a property, 
comply with continuing obligations to take reasonable steps to stop on-
going releases at the property, prevent any threatened future releases, 
and prevent or limit any human, environmental, or natural resource 
exposure to any previously released hazardous substances (these 
criteria are summarized in detail in section II.D. of this preamble). 
In certain instances, depending upon site-specific circumstances and 
the totality of the information collected during the all appropriate 
inquiries prior to the property acquisition, it may be necessary to 
conduct sampling and analysis, either pre-or post-acquisition, to fully 
understand the conditions at a property, and fully comply with the 
statutory requirements for the CERCLA liability protections. In 
addition, sampling and analysis may help explain existing data gaps. 
Prospective purchasers should be mindful of all the statutory 
requirements for obtaining the CERCLA liability protections when 
considering whether or not to conduct sampling and analysis and when 
determining whether to undertake sampling and analysis prior to or 
after acquiring a property. Today's proposed regulation does not 
require that sampling and analysis be conducted as part of the all 
appropriate inquiries that must be conducted prior to acquiring a 
property.
    The Agency requests comments on the proposed requirements for 
meeting the statutory provisions for including within the all 
appropriate inquiries the degree of obviousness of the presence or 
likely presence of contamination at the property, and the ability to 
detect the contamination by appropriate investigation. The Agency also 
specifically requests comments on the decision not to require sampling 
and analysis as part of the all appropriate inquiries regulations.

IV. Requests for Public Comments

    EPA is requesting comment on the standards and practices included 
as part of today's proposed rule. Public comments may be submitted to 
the Agency electronically or by mail, as explained in the SUPPLEMENTARY 
INFORMATION section of this preamble. As explained in that section, the 
Agency requests that when submitting comments, please state your views 
as clearly as possible, describe any assumptions applicable to your 
comments, provide any technical information and data that support your 
views, and provide specific examples to illustrate your concerns. 
Specifically, the Agency is interested in receiving public comment on 
the following:
     The proposed requirements for an all appropriate inquiries 
report, including the signature requirements for the all appropriate 
inquiries report.
     The proposed qualifications included in the definition of 
an environmental professional and the provisions allowing for 
individuals who do not qualify as environmental professionals to 
contribute to inquiry activities.
     The proposed division of responsibilities for conducting 
all appropriate inquiries.
     The proposal to establish the date on which title is 
transferred on a property as the date on which the property is 
acquired.
     The proposed provisions for using previously conducted all 
appropriate inquiries.
     The proposed requirements for using all appropriate 
inquiries conducted by third parties.
     The proposed objectives and performance factors for the 
all appropriate inquiries requirements.
     The proposed provisions for addressing data gaps.
     The proposal to not require sampling and analysis as part 
of the all appropriate inquiries standards.
     The proposed standards for conducting interviews of past 
and present owners and occupants of a property.
     The proposed requirements to interview owners or occupants 
of neighboring properties in the case of abandoned properties.
     The proposed standards for reviews of historical sources 
of information.

[[Page 52569]]

     The proposed standards for searching for recorded 
environmental cleanup liens.
     The proposed standards for reviewing federal, state, 
tribal and local government records.
     The proposed requirements for conducting visual 
inspections of the subject property and adjoining properties, including 
the limited exemption from conducting an on-site inspection when good 
faith efforts result in an inability to obtain access to a property.
     The proposed provisions governing the inclusion of 
specialized knowledge or experience on the part of the purchaser and 
the environmental professional.
     The proposed requirements for considering the relationship 
of the purchase price to the value of a property, if the property was 
not contaminated.
     The proposed requirements for commonly known or reasonably 
ascertainable information about the property.
     The proposed requirements for the degree of obviousness of 
the presence or likely presence of contamination at the property, and 
the ability to detect the contamination by appropriate investigation.
     The proposed information collection requirements, 
including the need for such information, the accuracy of the provided 
burden estimates associated with the requirements, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques.
     The methodology used to estimate the costs and impacts of 
today's proposed rule, including the estimated incremental labor hours 
used to estimate the incremental cost of the proposed rule.
     The methodology employed to identify impacted small 
entities and estimating the potential impacts on small entities.
     The identification of voluntary consensus standards that 
are applicable to and compliant with today's proposed standards and 
practices for all appropriate inquiries.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735), the Agency must 
determine whether this regulatory action is ``significant'' and 
therefore subject to formal review by the Office of Management and 
Budget (OMB) and to the requirements of the Executive Order. The 
Executive Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may: (1) Have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or state, local, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that today's proposed rule is a ``significant regulatory 
action'' because this proposed rule contains novel legal or policy 
issues.
    Based upon the results of its Economic Impacts Analysis (EIA), EPA 
has determined that this proposed rule will have an annual effect on 
the economy of less than $100 million. The annualized benefits 
associated with today's proposed rule have not been monetized but are 
identified and summarized in the document titled ``Economic Impacts 
Analysis for the Proposed All Appropriate Inquiries Regulation.'' A 
copy of the EIA is available in the docket for today's proposed rule. 
The Agency solicits comment on the methodology and results from the 
analysis as well as any data that the public believes would be useful 
in a revised analysis.
1. Methodology
    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. The Economic Impacts 
Analysis (EIA) conducted in support of today's proposed rule examines 
both costs and qualitative benefits in an effort to assess the overall 
net change in social welfare. The primary focus of the EIA document is 
on compliance costs and economic impacts. Below, EPA summarizes the 
analytical methodology and findings for the proposed all appropriate 
inquiries rule. The information presented is derived from the EIA.
    The all appropriate inquiries regulation potentially will apply to 
most commercial property transactions. The requirements will be 
applicable to any public or private party, who may potentially claim 
protection from CERCLA liability as an innocent landowner, a bona fide 
prospective purchaser, or a contiguous property owner. However, the 
conduct of all appropriate inquiries, or environmental due diligence, 
is not new to the commercial property market. Prior to the Brownfields 
Amendments to CERCLA, commercial property transactions often included 
an assessment of the environmental conditions at properties prior to 
the closing of any real estate transaction whereby ownership was 
acquired for the purposes of confirming the conditions at the property 
or to establish an innocent landowner defense should environmental 
contamination be discovered after the property was acquired. The 
process most prevalently used for conducting all appropriate inquiries, 
or environmental site assessments, is the process developed by the 
American Society for Testing and Materials (ASTM) and entitled ``E1527, 
Phase I Environmental Site Assessment Process.'' In addition, some 
properties, particularly in cases where the subject property is assumed 
not to be contaminated or was never used for industrial or commercial 
purposes, were assessed using another, less rigorous process developed 
by ASTM, sometimes referred to as a ``transaction screen'' and entitled 
``E1528 Standard Practice for Environmental Site Assessments: 
Transaction Screen Process.''
    Our first step in assessing the economic impacts of the proposed 
rule was establishing a baseline to represent the relevant aspects to 
the commercial real estate market in the absence of any changes in 
regulations. Because under existing conditions almost all transactions 
concerning commercial properties are accompanied by either an 
environmental site assessment (ESA) conducted in accordance with ASTM 
E1527-2000 or a transaction screen as specified in ASTM E1528, these 
practices were assumed to continue even in the absence of the all 
appropriate inquiries regulation. The numbers of each type of 
assessment were estimated on the basis of industry data for recent 
years, with recent growth rates in transactions assumed to continue for 
the 10 year period covered by the EIA. An adjustment in the relative 
numbers of the ESAs and transaction screens was made to account for the 
fact that, under the proposed rule, an ESA will provide more certain 
protection from liability. This adjustment was made by comparing shifts 
between the two procedures that

[[Page 52570]]

occurred when the Brownfields Amendments established the ASTM E1527-
2000 standard as the interim standard for all appropriate inquiries, 
and thus as one requirement for qualifying as an innocent landowner, 
bona fide purchaser, or contiguous property owner.
    We then considered the requirements included in the recommendation 
of the Negotiated Rulemaking Committee and those included in a few 
options that the committee considered but did not adopt. We then 
compared the costs of each alternative option to costs associated with 
conducting assessments using the ASTM E1527-2000 standard. We present 
this cost comparison to comply with current OMB guidance to consider a 
less stringent alternative than the Agency's preferred alternative when 
conducting an economic impacts assessment. As explained in section 
V.I., EPA has determined that the ASTM E1527-2000 standard is 
inconsistent with applicable law. However, the alternative is included 
in the economics assessment for cost comparison purposes.
    When compared to the ASTM E1527-2000 standard (i.e., the baseline 
standard), today's proposed rule is expected to result in a reduced 
burden for the conduct of interviews in those cases where the subject 
property is abandoned; increased burden associated with documenting 
recorded environmental cleanup liens; increased burden for documenting 
the reasons for the price and market value of a property in those cases 
where the purchase price paid for the subject property is significantly 
below the market value of the property; and increased burden for 
recording information about the degree of obviousness of contamination 
at a property. The three regulatory options that were considered by the 
Negotiated Rulemaking Committee but not adopted would have required: 
(1) All non-clerical work to be performed by an individual meeting the 
proposed definition of an environmental professional; (2) no 
requirement to interview owners/occupants of neighboring properties 
when the subject property is abandoned; and (3) limited soil or water 
sampling. An additional option is presented in the EIA for the proposed 
rule to comply with guidance recently issued by OMB. OMB ``Circular A-
4'' requires that agencies analyze a continuum of regulatory options, 
including a regulatory alternative that is less stringent than an 
agency's preferred alternative. To fully comply with the OMB guidance, 
the EIA includes a comparison of the cost impacts of our preferred 
option and the other options considered by the Negotiated Rulemaking 
Committee to an option that would entail using the ASTM E1527-2000 
standard as the federal regulation. As explained in more detail below, 
it is EPA's opinion that the ASTM E1527-2000 standard is not compliant 
with the statutory requirements for all appropriate inquires, and 
therefore if adopted may not provide the benefits of the CERCLA 
liability protections. However, the option is provided in the EIA for 
the purposes of a cost comparison.
    To estimate the changes in costs resulting from the rule or the 
regulatory options, we developed a costing model. This model estimates 
the total costs of conducting site assessments as the product of costs 
per assessment, numbers of assessments per year, and the number of 
years in the analysis. The costs per assessment, in turn, are 
calculated by dividing each assessment into individual labor 
activities, estimating the labor time associated with each, and 
assigning a per-hour labor cost to each activity on the basis of the 
labor category most appropriate to that activity. Labor times and 
categories are assumed to depend on the size and type of property being 
assessed, with the nationwide distribution of properties based on data 
from industry on environmental sites assessments and brownfield 
sites.\3\ The estimates and assignments of categories are made based on 
the experience of professionals who have been involved in large numbers 
of site assessments, and who are therefore skilled in cost estimation 
for the relevant activities. Other costs, such as reproduction and the 
purchase of data, are added to the labor costs to form the estimates of 
total costs per assessment. These total costs, stratified by size and 
type of property, are then multiplied by estimated numbers of 
assessments of each size and type to generate our estimates of total 
annual costs. The model was tested by comparing its results to 
industry-wide estimates of average price of conducting assessments 
under baseline conditions, and found to agree quite well. We also used 
the model to estimate total costs per year under the proposed rule and 
each option; the differences between these estimated costs and the 
estimated costs in the baseline constituted our estimates of the 
incremental regulatory costs. EPA requests comments on our methodology 
for estimating the costs and impacts of today's proposed rule, 
including comments on our estimates of the incremental labor hours 
necessary to conduct activities required by the proposed rule but not 
currently conducted using the baseline standard (i.e., ASTM E1527-
2000).
---------------------------------------------------------------------------

    \3\ The distribution of abandoned properties and properties with 
known owners, modeled as a range, is based on an estimate of vacant 
lands in urban areas and an estimate of abandoned Superfund sites.
---------------------------------------------------------------------------

    The EIA provides a qualitative assessment of the benefits of the 
proposed rule. The benefits discussed are those that may be attributed 
to an increased level of certainty with regard to CERCLA liability 
provided to prospective purchasers of potentially contaminated 
properties, including brownfields, who comply with the provisions of 
the proposed rule and comply with the other statutory provisions 
associated with the liability protections. Our basic premise for 
associating certain benefits to the proposed rule is that we believe 
that the level of certainty provided by the liability protections may 
result in increased brownfields property transactions. However, it is 
difficult to predict how many additional transactions may occur that 
involve brownfields properties in response to the increased certainty 
of the liability protections. It also is difficult to obtain data on 
changes in behaviors and practices of prospective property owners in 
response to the liability protections. Therefore, we made no attempt to 
quantify potential benefits or compare the benefits to estimated 
incremental costs.
    The Agency believes that the increased level of certainty with 
regard to CERCLA liability provided by complying with the proposed rule 
and other statutory requirements may have the affect of increasing 
property transactions involving brownfields and other contaminated and 
potentially-contaminated properties and improving information about 
environmental conditions at these properties. The types of indirect 
benefits that we believe may result from this increase in the number of 
transactions involving these types of properties include increased 
numbers of cleanups, reduced use of greenfields, potential increases in 
property values, and potential increases in quality of life measures 
(e.g., decreases in urban blight, reductions in traffic, congestion, 
and reduced pollution due to mobile source emissions). However, as 
stated above, the benefits of the proposed rule are considered only 
qualitatively, due to the difficulty of predicting how many additional 
brownfields and contaminated property transactions may occur in 
response to the increased certainty of liability protections provided 
by the proposed rule, as well as the difficulty in getting data on

[[Page 52571]]

changes in behaviors and practices in response to the availability of 
the liability protections. EPA is confident that the new liability 
protections afforded to prospective property owners, if they comply 
with the all appropriate inquiries provisions, will result in increased 
benefits. EPA is not able to quantify, with any significant level of 
confidence, the exact proportion of the benefits attributed only to the 
availability of the liability protections and the all appropriate 
inquiries regulations. For these reasons, the costs and benefits could 
not be directly compared.
2. Summary of Regulatory Costs
    For a given property, the costs of compliance with the proposed 
rule relative to the baseline depend on whether that property would 
have been assessed, in absence of the all appropriate inquiries 
regulation, with an ASTM E1527-2000 assessment process or with a 
simpler transaction screen (ASTM E1528). The table below shows that the 
average incremental cost of the proposed rule relative to conducting an 
ASTM E1527-2000 is estimated to be between $41 and $47. For the small 
percentage of cases for which a transaction screen would have been 
preferred to the ASTM E1527-2000 in the baseline, but which now would 
require an assessment in compliance with the proposed rule, the average 
incremental cost is estimated to be between $1,448 and $1,454. We 
estimate that approximately 97 percent of property transactions will 
bear only the incremental cost of the proposed rule relative to the 
ASTM E1527-2000 process. Therefore, the weighted average incremental 
cost per transaction is estimated to be fairly low, between $84 and 
$89.
    The three regulatory options considered by the Negotiated 
Rulemaking Committee, but not recommended, would result in higher 
incremental costs from the base case. Option 1, which would require all 
of the non-clerical tasks in the all appropriate inquiries to be 
performed by an individual meeting the definition of environmental 
professional, would add an average of $539 per property assessment (or 
approximately $1,946 per property, assuming a transition from a 
transaction screen). Option 2 would have the same interviewing 
requirements as the baseline standard (i.e., ASTM E1527-2000), rather 
than require that interviews be conducted with neighboring property 
owners in the case of abandoned properties. EPA estimates that the 
incremental cost of Option 2, or the incremental cost of incorporating 
all the additional aspects of the proposed rule, over the baseline, 
except for the neighboring property owners/occupants interview 
requirement for abandoned properties, would be $54 per assessment (or 
$1,460 per property, assuming a transition from a transaction screen). 
Option 3, which would require the all appropriate inquiries to include 
limited sampling and analysis, would result in average incremental 
costs of either $1,439 or $2,845, depending on whether, under baseline 
conditions, an ASTM E1527-2000 process or a transaction screen (ASTM 
E1528) would have been used. The alternative of using the ASTM E1527-
2000 standard as the federal regulation would result in no ($0) 
incremental cost per property assessment (or, on average, $1,407 per 
property, assuming a transition from a transaction screen). We note, 
however, that EPA has found that the ASTM E1527-2000 standard is 
inconsistent with the statutory requirements for all appropriate 
inquiries.

          Summary of Incremental Per-Assessment Cost Estimates
------------------------------------------------------------------------
                                           Average           Average
                                      incremental cost  incremental cost
                                         relative to     for transition
                                         phase I ESA    from transaction
                                      under ASTM E1527-   screen (under
                                        2000 (97% of     ASTM E1528) (3%
                                        transactions)   of transactions)
------------------------------------------------------------------------
Proposed AAI Rule...................           $41-$47     $1,448-$1,454
Option 1--Environmental Professional               539             1,946
 Only...............................
Option 2--Unchanged Interview                       54             1,460
 Requirement........................
Option 3--Limited Sampling ASTM                  1,439             2,845
 E1527-2000.........................                 0             1,407
------------------------------------------------------------------------

    The total annualized costs of the proposed rule and the four 
additional options considered, in total and relative to the base case, 
are shown in the exhibit below. The total costs were calculated over a 
period of ten years from the start of 2004 and then annualized at a 
three and seven percent discount rate. When a discount rate of three 
percent is used, the estimated total annual costs for the options 
considered by the Negotiated Rulemaking Committee range from just under 
$700 million to over $1 billion per year, compared to the baseline 
costs of $663.8 million and the costs associated with the option of 
using the ASTM E1527-2000 standard of over $677 million. The proposed 
regulation adds between $26 and $28 million per year, while the 
incremental costs association with the options considered by the 
Negotiated Rulemaking Committee range from $30 million to almost $460 
million per year. The incremental cost of the alternative of using the 
ASTM 1527-2000 standard is over $13 million. When a discount rate of 
seven percent is used, the estimated total annual costs for the options 
considered by the Negotiated Rulemaking Committee range from $710 
million to over $1 billion per year, compared to the baseline costs of 
$683.5 million and the costs associated with using the ASTM E1527 
standard of over $697 million. The proposed regulation adds between $27 
and $29 million per year, while the incremental costs association with 
the options considered by the Negotiated Rulemaking Committee range 
from $31 million to over $470 million per year. The incremental cost of 
using the ASTM E1527-2000 standard is close to $14 million.

[[Page 52572]]



                   Summary of Annual Cost Estimates (in Millions), Discounted at Three Percent
----------------------------------------------------------------------------------------------------------------
                               Base case     Proposed rule      Option 1     Option 2     Option 3    ASTM E1527
----------------------------------------------------------------------------------------------------------------
Total Annual Cost...........       $663.8      $690.1-$691.9       $844.0       $693.9     $1,122.0       $677.3
Incremental Total Annual                0            26.3-28        180.2         30.0        458.1         13.5
 Cost Relative to the Base
 Case.......................
----------------------------------------------------------------------------------------------------------------


                   Summary of Annual Cost Estimates (in Millions), Discounted at Three Percent
----------------------------------------------------------------------------------------------------------------
                               Base case     Proposed rule      Option 1     Option 2     Option 3    ASTM E1527
----------------------------------------------------------------------------------------------------------------
Total Annual Cost...........       $683.5      $710.5-$712.3       $868.9       $714.4     $1,155.0       $697.3
Incremental Total Annual                0            27-28.8        185.4         30.8        471.5         13.8
 Cost Relative to the Base
 Case.......................
----------------------------------------------------------------------------------------------------------------

    As shown in the table above, the estimated total annual cost of 
today's proposed rule, calculated using a discount rate of seven 
percent, would be between $710.5 and $712.3 million and the estimated 
total annual incremental cost would be between $27 and $29 million. 
Thus, the proposed rule will have an incremental annual effect on the 
economy of less than $100 million per year.

B. Paperwork Reduction Act

    The information collection requirements contained in this proposed 
rule have been submitted for approval to the Office of Management and 
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR Number 2144.01.
    Under the PRA, EPA is required to estimate the notification, 
reporting and recordkeeping costs and burdens associated with the 
requirements specified in the proposed rule. This proposed rule, if it 
is promulgated, will require persons wanting to claim one of the 
liability protections under CERCLA to conduct some activities that go 
beyond current customary and usual business practices (i.e., beyond 
ASTM E1527-2000) and therefore will impose an information collection 
burden under the provisions of the Paperwork Reduction Act. The 
information collection activities are associated with the activities 
mandated in Section 101(35)(B) of CERCLA for those persons wanting to 
claim protection from CERCLA liability. None of the information 
collection burdens associated with the provisions of today's rule 
include requirements to submit the collected information to EPA or any 
other government agency. Information collected by persons affected by 
today's proposed rule may be useful to such persons if their liability 
under CERCLA for the release or threatened release of a hazardous 
substance is challenged in a court.
    The activities associated with today's proposed rule that go beyond 
current customary and usual business practices include interviews with 
neighboring property owners and/or occupants in those cases where the 
subject property is abandoned, documentation of all environmental 
cleanup liens in the Phase I Environmental Site Assessment report, 
discussion of the relationship of purchase price to value of the 
property in the report, and consideration and discussion of whether 
additional environmental investigation is warranted. Paperwork burdens 
are estimated to be 487,676 hours annually, with a total cost of 
$26,546,749 annually. The estimated average burden hours per response 
is estimated to be approximately one hour (or 25 hours per response, 
assuming a transition from a transaction screen). The estimated average 
cost burden per response is estimated to be either $56 or $1,456, 
depending on whether, under baseline conditions, an ASTM E1527-2000 
process or a transaction screen (ASTM E1528) would have been used.
    Under the Paperwork Reduction Act ``burden'' means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and suggested methods for minimizing 
respondent burden, EPA has established a public docket for this 
proposed rule, which includes this ICR, under Docket ID Number SFUND-
2004-0001. Submit any comments related to the ICR for this proposed 
rule to EPA and OMB. See ADDRESSES section at the beginning of this 
document for where to submit comments to EPA. Send comments to OMB at 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk 
Officer for EPA.
    Since OMB is required to make a decision concerning the ICR between 
30 and 60 days after August 26, 2004, a comment to OMB is best assured 
of having its full effect if OMB receives it by September 27, 2004. The 
final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposed rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et. seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant

[[Page 52573]]

economic impact on a substantial number of small entities. Small 
entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For the purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is 
defined by the Small Business Administration by category of business 
using the North American Industrial Classification System (NAICS) and 
codified at 13 CFR 121.201; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    Since all non-residential property transactions could be affected 
by today's proposed rule, if it is promulgated, large numbers of small 
entities could be affected to some degree. However, we estimate that 
the effects, on the whole, will not be significant for small entities. 
We estimate that, for the majority of small entities, the average 
incremental cost of today's proposed rule relative to conducting an 
ASTM E1527-2000 will be between $41 and $47. When we annualize the 
incremental cost of $47 per property transaction over ten years at a 
seven percent discount rate, we estimate that the average annual cost 
increase per establishment per property transaction will be $7. 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 proposed rule to small entities is included in ``Economic 
Impacts Analysis of the Proposed All Appropriate Inquiries 
Regulation.'' This document is included in the docket for today's 
proposed rule.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. We estimate 
that, on average, 266,000 small entities may purchase commercial real 
estate in any given year and therefore could potentially be impacted by 
today's proposed rule. Though large numbers of small entities could be 
affected to some degree, we estimated that the effects, on the whole, 
would not be significant for small entities. We estimate that, for the 
majority of small entities, the average incremental cost of today's 
proposed rule relative to conducting an ASTM E1527-2000 will be between 
$41 and $47. For the small percentage of cases for which a transaction 
screen would have been preferred to the ASTM E1527-2000 in the 
baseline, but which now will require an assessment in compliance with 
the proposed rule, the average incremental cost of conducting an 
environmental site assessment will be between $1,448 and $1,454. When 
we annualize the incremental cost per property transaction over ten 
years at a seven percent discount rate, we estimate that for the 
majority of small entities the average annual cost increase per 
establishment per property transaction will be approximately $7. For 
the small percentage of entities transitioning from transaction screens 
to the all appropriate inquiries requirements of the proposed rule, the 
average annual cost increase per establishment per property transaction 
will be $207.\4\
---------------------------------------------------------------------------

    \4\ For a very small percentage of entities transitioning from 
transaction screens to the all appropriate inquiries requirements, 
the maximum increase per establishment per property transaction is 
estimated to be approximately $2,830. When we annualize this 
incremental cost per property transaction over ten years at a seven 
percent discount rate, we estimate that the maximum annual cost 
increase per establishment per property transaction will be $400. We 
estimate that approximately one fifth of one percent of the 
properties transitioning from a transaction screen to a Phase I ESA 
will have an impact of this magnitude each year.
---------------------------------------------------------------------------

    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless 
considered impacts to small entities in the development of this rule. 
As described in Section II.F. of this preamble, we developed this 
proposed rule using a negotiated rulemaking committee. The interests of 
small entities, including small businesses and small communities, were 
represented on the Negotiated Rulemaking Committee for All Appropriate 
Inquiries. Committee members representing small entities, including 
representatives from small environmental services firms and 
representatives from organizations representing small and rural 
communities, participated in each meeting of the Committee. Today's 
proposed rule includes provisions that are the direct result of input 
from these representatives to the Committee.
    EPA continues to be interested in the potential impacts of the 
proposed rule on small entities. EPA welcomes comments on issues 
related to such impacts. In addition, EPA requests comments on the 
methodology employed to identify impacted small entities and estimate 
the potential impacts on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
must prepare a written statement, including a cost-benefit analysis, 
for proposed and final rules with ``Federal mandates'' that may result 
in expenditures to State, local, and tribal governments, in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA, a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials to have 
meaningful and timely input in the development of regulatory proposals 
with significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    Today's proposed rule contains no federal mandates (under the 
regulatory provisions of Title II of the UMRA) for state, local, or 
tribal governments or the private sector. The proposed rule imposes no 
enforceable duty on any state, local, or tribal governments. EPA also 
determined that this proposed rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. In 
addition, as discussed above, the private sector is not expected to 
incur costs of $100 million or more as a result of today's proposed 
rule. Therefore, today's proposed rule is not subject to the 
requirements of Sections 202 and 205 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an

[[Page 52574]]

accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    This proposal does not have federalism implications. It will not 
have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. No state and local government 
bodies will incur compliance costs as a result of today's rulemaking. 
Therefore, Executive Order 13132 does not apply to this proposed rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA did ensure that meaningful and timely input was obtained from 
state and local government officials when developing the proposed rule. 
Representatives from two different state agencies participated on the 
Negotiated Rulemaking Committee. In addition, representatives from 
three different organizations representing local government officials 
participated on the Committee. State and local government 
representatives participated in the Committee negotiations at each 
meeting of the Committee. Today's proposed rule includes provisions 
that are the direct result of input from the state and local government 
representatives to the Committee negotiations.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicits comment on this proposed rule 
from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments, nor would it impose direct 
compliance costs on them. Thus, Executive Order 13175 does not apply to 
this rule.
    Although Executive Order 13175 does not apply to this proposed 
rule, EPA did ensure that meaningful and timely input was obtained from 
tribal officials when developing the proposed rule. Representatives 
from two different tribal communities participated on the Negotiated 
Rulemaking Committee. A tribal government representative participated 
in the Committee negotiations at each meeting of the Committee. Today's 
proposed rule includes provisions that are the direct result of input 
from the tribal representatives to the Committee negotiations.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children; and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This proposal is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significantly 
adverse effect on the supply, distribution, or use of energy. Further, 
we have concluded that this rule is not likely to have any adverse 
energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities, unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. 
Today's proposed rule involves technical standards. Therefore, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) apply.
    EPA proposes to use the all appropriate inquiries standard 
developed with the assistance of a regulatory negotiation committee 
comprised of various affected stakeholder groups. EPA considered using 
the existing standard developed by ASTM as the federal standard for all 
appropriate inquiries. This standard is known as the ASTM E1527-2000 
standard (``Standard Practice for Environmental Site Assessment: Phase 
I Environmental Site Assessment Process''). EPA estimates that the 
adoption of the ASTM standard would be less costly than the Agency's 
preferred option (the option developed by the Negotiated Rulemaking 
Committee) or any of the other options considered by the Negotiated 
Rulemaking Committee and presented in the Economic Impact Analysis. The 
existing ASTM E1527-2000 standard equates to the base case in the 
economic impact analysis. The adoption of this alternative would reduce 
the annual paperwork burden associated with the proposed rule by 
approximately 236,000 hours. However, for reasons provided below, EPA 
has determined that the ASTM E1527-2000 standard is inconsistent with 
applicable law.
    In CERCLA Section 101(35)(B), Congress included ten specific 
criteria to be used in promulgating the all appropriate inquiries rule. 
The ASTM standards do not address all of the required criteria. For 
example, the ASTM standards do not provide for interviews of past 
owners, operators, and occupants of a facility. The statute, however, 
states that the promulgated

[[Page 52575]]

standard ``shall include * * * interviews with past and present owners, 
operators, and occupants of the facility for the purpose of gathering 
information regarding the potential for contamination at the 
facility.'' CERCLA Section 101(35)(B)(iii)(II).
    In addition, ASTM's existing standard does not meet other statutory 
requirements. CERCLA 101(35)(B)(iii)(III) mandates that EPA shall 
include in the federal regulations setting standards for all 
appropriate inquiries: ``Reviews of historical sources, such as chain 
of title documents, aerial photographs, building department records, 
and land use records, to determine the previous uses and occupancies of 
the real property since the property was first developed.'' ASTM E1527-
2000 requires identification of all obvious uses of the property from 
the present, back to the property's obvious first developed use or back 
to 1940, whichever is earlier. Congress did not qualify the review to 
obvious uses, and did not give an alternate date regarding the review.
    Further, CERCLA 101(35)(B)(iii)(VI) states that: ``Visual 
inspections of the facility and adjoining properties'' shall be 
included in the inquiry. ASTM E1527-2000 does not mandate visual 
inspections of adjoining properties. ASTM's standard requires noting 
any observed past uses, but does not require the conduct of an actual 
visual inspection of adjoining properties. This contrasts with the 
mandatory language Congress required with respect to the intent to 
conduct visual inspection of adjoining properties.
    CERCLA 101(35)(B)(iii)(VIII) also states that the standards for all 
appropriate inquiries shall include: ``The relationship of the purchase 
price to the value of the property, if the property was not 
contaminated.'' In its E1527-2000 standard, ASTM limits this 
requirement to actual knowledge by the defendant of a significantly 
lower price for a property when compared with comparable properties. 
The statute's criteria does not limit this to actual knowledge.
    Finally, CERCLA 101(35)(B)(iii)(IV) states that the standards for 
all appropriate inquiries shall include: ``Searches for recorded 
environmental cleanup liens against the facility that are filed under 
Federal, State, or local law.'' ASTM's E1527-2000 standard describes a 
much more limited scope for this search than the statute requires. We 
are aware that in some instances, liens may be filed in places other 
than recorded land title records and therefore a more comprehensive 
standard is necessary to match the scope intended by the statute.
    As a result, use of the ASTM standards would be inconsistent with 
applicable law. We welcome comments on this aspect of the proposed 
rulemaking. Specifically, we invite the public to comment on our 
determination that the alternative of adopting the ASTM E1527-2000 
standard as the federal standards for conducting all appropriate 
inquiries would be inconsistent with applicable law. In addition, we 
invite the public to identify other potentially applicable voluntary 
consensus standards for conducting all appropriate inquiries and to 
explain why EPA should use such standards in promulgating this 
regulation. Prior to promulgating a final regulation setting federal 
standards and practices for all appropriate inquiries, the Agency will 
cite or reference applicable and compliant voluntary consensus 
standards in the final regulation to facilitate implementation of the 
final regulations and avoid disruption to parties using voluntary 
consensus standards that are found to be fully compliant with the 
federal regulations.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. Our goal is to ensure that all 
citizens live in clean and sustainable communities. In response to 
Executive Order 12898, and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response (OSWER) 
formed an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17). EPA's brownfields program has a particular 
emphasis on addressing concerns specific to environmental justices 
communities. Many of the communities and neighborhoods that are most 
significantly impacted by brownfields are environmental justice 
communities. EPA's brownfields program targets such communities for 
assessment, cleanup, and revitalization. The brownfields program has a 
long history of working with environmental justice communities and 
advocates through our technical assistance and grant programs. In 
addition to the monies awarded to such communities in the form of 
assessment and cleanup grants, the brownfields program also works with 
environmental justice communities through our job training grants 
program. The job training grants provide money to government entities 
to facilitate the training of persons living in or near brownfields 
communities to attain skills for conducting site assessments and 
cleanups.
    Given that environmental justice communities are significantly 
impacted by brownfields, and the federal standards for all appropriate 
inquiries may play a primary role in encouraging the assessment and 
cleanup of brownfields sites, EPA made it a priority to obtain input 
from representatives of environmental justice interest groups during 
the development of the proposed rulemaking. The Negotiated Rulemaking 
Committee tasked with developing the all appropriate inquiries proposed 
rule included three representatives from environmental justice advocacy 
groups. Each representative played a significant role in the 
negotiations and in the development of today's proposed rule.

List of Subjects in 40 CFR Part 312

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: August 18, 2004.
Michael O. Leavitt,
Administrator.
    For reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended by revising part 
312 as follows:

PART 312--INNOCENT LANDOWNERS, STANDARDS FOR CONDUCTING ALL 
APPROPRIATE INQUIRIES

Subpart A--Introduction
Sec.
312.1 Purpose, applicability, scope, and disclosure obligations.
Subpart B--Definitions and References
312.10 Definitions.

[[Page 52576]]

312.11 References.
Subpart C--Standards and Practices
312.20 All appropriate inquiries.
312.21 Results of inquiry by an environmental professional.
312.22 Additional inquiries.
312.23 Interviews with past and present owners, operators, and 
occupants.
312.24 Reviews of historical sources of information.
312.25 Searches for recorded environmental cleanup liens.
312.26 Reviews of Federal, State, tribal and local government 
records.
312.27 Visual inspections of the facility and of adjoining 
properties.
312.28 Specialized knowledge or experience on the part of the 
defendant.
312.29 The relationship of the purchase price to the value of the 
property, if the property was not contaminated.
312.30 Commonly known or reasonably ascertainable information about 
the property.
312.31 The degree of obviousness of the presence or likely presence 
of contamination at the property, and the ability to detect the 
contamination by appropriate investigation.

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

Subpart A--Introduction


Sec.  312.1  Purpose, applicability, scope and disclosure obligations.

    (a) Purpose. The purpose of this section is to provide standards 
and procedures for ``all appropriate inquiries'' for the purposes of 
CERCLA Section 101(35)(B).
    (b) Applicability. The requirements of this part are applicable to:
    (1) Persons seeking to qualify for:
    (i) The innocent landowner defense pursuant to CERCLA Sections 
101(35) and 107(b)(3);
    (ii) The bona fide prospective purchaser liability protection 
pursuant to CERCLA Sections 101(40) and 107(r);
    (iii) The contiguous property owner liability protection pursuant 
to CERCLA Section 107(q); and
    (2) Persons conducting site characterization and assessments with 
the use of a grant awarded under CERCLA Section 104(k)(2)(B).
    (c) Scope. (1) Persons seeking to qualify for one of the liability 
protections under paragraph (b)(1) of this section must conduct 
investigations as required in this part, including an inquiry by an 
environmental professional, as required under Sec.  312.21, and the 
additional inquiries defined in Sec.  312.22, to identify conditions 
indicative of releases or threatened releases, as defined in CERCLA 
Section 101(22), of hazardous substances, as defined in CERCLA Section 
101(14).
    (2) Persons identified in paragraph (b)(2) of this section must 
conduct investigations required in this part, including an inquiry by 
an environmental professional, as required under Sec.  312.21, and the 
additional inquiries defined in Sec.  312.22, to identify conditions 
indicative of releases and threatened releases of hazardous substances, 
as defined in CERCLA Section 101(22), and as applicable per the terms 
and conditions of the grant or cooperative agreement, releases and 
threatened releases of:
    (i) Pollutants and contaminants, as defined in CERCLA Section 
101(33);
    (ii) Petroleum or petroleum products excluded from the definition 
of ``hazardous substance'' as defined in CERCLA Section 101(14); and
    (iii) Controlled substances, as defined in 21 U.S.C. 802.
    (d) Disclosure obligations. None of the requirements of this part 
limits or expands disclosure obligations under any federal, state, 
tribal, or local law, including the requirements under CERCLA Sections 
101(40)(C) and 107(q)(1)(A)(vii) requiring persons, including 
environmental professionals, to provide all legally required notices 
with respect to the discovery of releases of hazardous substances. It 
is the obligation of each person, including environmental 
professionals, conducting the inquiry to determine his or her 
respective disclosure obligations under Federal, State, tribal, and 
local law and to comply with such disclosure requirements.

Subpart B--Definitions and References


Sec.  312.10  Definitions.

    (a) Terms used in this part and not defined below, but defined in 
either CERCLA or 40 CFR part 300 (the National Oil and Hazardous 
Substances Pollution Contingency Plan) shall have the definitions 
provided in CERCLA or 40 CFR part 300.
    (b) When used in this part, the following terms have the meanings 
provided as follows:
    Abandoned property means: property that can be presumed to be 
deserted, or an intent to relinquish possession or control can be 
inferred from the general disrepair or lack of activity thereon such 
that a reasonable person could believe that there was an intent on the 
part of the current owner to surrender rights to the property.
    Adjoining properties means: any real property or properties the 
border of which is (are) shared in part or in whole with that of the 
subject property, or that would be shared in part or in whole with that 
of the subject property but for a street, road, or other public 
thoroughfare separating the properties.
    Data gap means: a lack of or inability to obtain information 
required by the standards and practices listed in subpart C of this 
part despite good faith efforts by the environmental professional or 
persons identified under Sec.  312.1(b), as appropriate, to gather such 
information pursuant to Sec. Sec.  312.20(d)(1) and 312.20(d)(2).
    Environmental Professional means:
    (1) A person who possesses sufficient specific education, training, 
and experience necessary to exercise professional judgment to develop 
opinions and conclusions regarding the presence of releases or 
threatened releases (per Sec.  312.1(c)) to the surface or subsurface 
of a property, sufficient to meet the objectives and performance 
factors in Sec.  312.20(d) and (e).
    (2) Such a person must:
    (i) Hold a current Professional Engineer's or Professional 
Geologist's license or registration from a state, tribe, or U.S. 
territory (or the Commonwealth of Puerto Rico) and have the equivalent 
of three (3) years of full-time relevant experience; or
    (ii) Be licensed or certified by the federal government, a state, 
tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to 
perform environmental inquiries as defined in Sec.  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.
    (3) An environmental professional should remain current in his or 
her field through participation in continuing education or other 
activities and should be able to demonstrate such efforts.
    (4) The definition of environmental professional provided above 
does not preempt state professional licensing or registration 
requirements such as those for a professional geologist, engineer, or 
site remediation professional. Before commencing work, a person should 
determine the applicability of state professional licensing or 
registration laws to the activities to be undertaken as part of the 
inquiry identified in Sec.  312.21(b).
    (5) A person who does not qualify as an environmental professional 
under the foregoing definition may assist in the conduct of all 
appropriate inquiries

[[Page 52577]]

in accordance with this part if such person is under the supervision or 
responsible charge of a person meeting the definition of an 
environmental professional provided above when conducting such 
activities.
    Good faith means: the absence of any intention to seek an unfair 
advantage or to defraud another party; an honest and sincere intention 
to fulfill one's obligations in the conduct or transaction concerned.
    Institutional controls means: Non-engineered instruments, such as 
administrative and/or legal controls, that help to minimize the 
potential for human exposure to contamination and/or protect the 
integrity of a remedy.
    Relevant experience, as used in the definition of environmental 
professional in this section, means: participation in the performance 
of environmental site assessments that may include environmental 
analyses, investigations, and remediation which involve the 
understanding of surface and subsurface environmental conditions and 
the processes used to evaluate these conditions and for which 
professional judgment was used to develop opinions regarding conditions 
indicative of releases or threatened releases (per Sec.  312.1(c)) to 
the subject property.


Sec.  312.11  References.

    (a) When used in part 312 of this chapter, the following 
publications are incorporated by reference:
    (1)-(2) [Reserved]
    (b) [Reserved]

Subpart C--Standards and Practices


Sec.  312.20  All appropriate inquiries.

    (a) ``All appropriate inquiries'' pursuant to CERCLA section 
101(35)(B) must include:
    (1) An inquiry by an environmental professional (as defined in 
Sec.  312.10), as provided in Sec.  312.21;
    (2) The collection of information pursuant to Sec.  312.22 by 
persons identified under Sec.  312.1(b); and
    (3) Searches for recorded environmental cleanup liens, as required 
in Sec.  312.25.
    (b) All appropriate inquiries may include the results of and 
information contained in an inquiry previously conducted by, or on the 
behalf of, persons identified under Sec.  312.1(b) and who are 
responsible for the inquiries for the subject property, provided:
    (1) Such information was collected during the conduct of all 
appropriate inquiries in compliance with the requirements of this part 
(40 CFR Part 312) and with CERCLA Sections 101(35)(B), 101(40)(B) and 
107(q)(A)(viii);
    (2) Such information was collected or updated within one year prior 
to the date of acquisition of the subject property;
    (3) Not withstanding paragraph (b)(2) of this section, the 
following components of the inquiries were conducted or updated within 
a 180 days of and prior to the date of purchase of the subject 
property:
    (i) Interviews with past and present owners, operators, and 
occupants (see Sec.  312.23);
    (ii) Searches for recorded environmental cleanup liens (see Sec.  
312.25);
    (iii) Reviews of federal, tribal, state, and local government 
records (see Sec.  312.26);
    (iv) Visual inspections of the facility and of adjoining properties 
(see Sec.  312.27); and
    (v) The declaration by the environmental professional (see Sec.  
312.21(d)).
    (4) Previously collected information is updated to include relevant 
changes in the conditions of the property and specialized knowledge, as 
outlined in Sec.  312.28, of the persons conducting the all appropriate 
inquiries for the subject property, including persons identified in 
Sec.  312.1(b) and the environmental professional, defined in Sec.  
312.10.
    (c) All appropriate inquiries can include the results of report(s) 
specified in Sec.  312.21(c), that have been prepared by or for other 
persons, provided that:
    (1) The report(s) meets the objectives and performance factors of 
this regulation, as specified in paragraphs (d) and (e) of this 
section; and
    (2) The person specified in Sec.  312.1(b) and seeking to use the 
previously collected information reviews the information and conducts 
the additional inquiries pursuant to Sec. Sec.  312.28, 312.29 and 
312.30 and the all appropriate inquiries are updated per paragraph 
(b)(3) of this section, as necessary.
    (d) Objectives. The standards and practices set forth in this part 
for All Appropriate Inquiries are intended to result in the 
identification of conditions indicative of releases and threatened 
releases of hazardous substances on, at, in, or to the subject 
property.
    (1) In performing the all appropriate inquiries, as defined in this 
section and provided in the standards and practices set forth this 
subpart, the persons identified under Sec.  312.1(b)(1) and the 
environmental professional, as defined in Sec.  312.10, must seek to 
identify through the conduct of the standards and practices set forth 
in this subpart, the following types of information about the subject 
property:
    (i) Current and past property uses and occupancies;
    (ii) Current and past uses of hazardous substances;
    (iii) Waste management and disposal activities that could have 
caused releases or threatened releases of hazardous substances;
    (iv) Current and past corrective actions and response activities 
undertaken to address past and on-going releases of hazardous 
substances;
    (v) Engineering controls;
    (vi) Institutional controls; and
    (vii) Properties adjoining or located nearby the subject property 
that have environmental conditions that could have resulted in 
conditions indicative of releases or threatened releases of hazardous 
substances to the subject property.
    (2) In the case of persons identified in Sec.  312.1(b)(2), the 
standards and practices for All Appropriate Inquiries set forth in this 
part are intended to result in the identification of conditions 
indicative of releases and threatened releases of hazardous substances, 
pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802) on, at, in, or to 
the subject property. In performing the all appropriate inquiries, as 
defined in this section and provided in the standards and practices set 
forth in this subpart, the persons identified under Sec.  312.1(b) and 
the environmental professional, as defined in Sec.  312.10, must seek 
to identify through the conduct of the standards and practices set 
forth in this subpart, the following types of information about the 
subject property:
    (i) Current and past property uses and occupancies;
    (ii) Current and past uses of hazardous substances, pollutants, 
contaminants, petroleum and petroleum products, and controlled 
substances (as defined in 21 U.S.C. 802);
    (iii) Waste management and disposal activities;
    (iv) Current and past corrective actions and response activities 
undertaken to address past and on-going releases of hazardous 
substances, pollutants, contaminants, petroleum and petroleum products, 
and controlled substances (as defined in 21 U.S.C. 802);
    (v) Engineering controls;
    (vi) Institutional controls; and
    (vii) Properties adjoining or located nearby the subject property 
that have environmental conditions that could have resulted in 
conditions indicative of releases or threatened releases of hazardous 
substances, pollutants, contaminants, petroleum and petroleum products, 
and controlled substances (as

[[Page 52578]]

defined in 21 U.S.C. 802) to the subject property.
    (e) Performance factors. In performing each of the standards and 
practices set forth in this subpart and to meet the objectives stated 
in paragraph (d) of this section, the persons identified under Sec.  
312.1(b) or the environmental professional as defined in Sec.  312.10 
(as appropriate to the particular standard and practice) must seek to:
    (1) Gather the information that is required for each standard and 
practice listed in this subpart that is publicly available, obtainable 
from its source within reasonable time and cost constraints, and which 
can practicably be reviewed; and
    (2) Review and evaluate the thoroughness and reliability of the 
information gathered in complying with each standard and practice 
listed in this subpart taking into account information gathered in the 
course of complying with the other standards and practices of this 
subpart.
    (f) To the extent there are data gaps (as defined in Sec.  312.10) 
in the information developed as part of the inquiries per paragraph (e) 
of this section that affect the ability of persons (including the 
environmental professional) conducting the all appropriate inquiries to 
identify conditions indicative of releases or threatened releases (such 
as in the historical record of property uses) in each area of inquiry 
under each standard and practice such persons should identify such data 
gaps, identify the sources of information consulted to address such 
data gaps, and comment upon the significance of such data gaps with 
regard to the ability to identify conditions indicative of releases or 
threatened releases of hazardous substances [and in the case of persons 
identified in Sec.  312.1(b)(2), hazardous substances, pollutants, 
contaminants, petroleum and petroleum products, and controlled 
substances (as defined in 21 U.S.C. 802)] on, at, in, or to the subject 
property. Sampling and analysis may be conducted to develop information 
to address data gaps.
    (g) Releases and threatened releases identified as part of the all 
appropriate inquiries should be noted in the report of the inquiries. 
These standards and practices however are not intended to require the 
identification of quantities or amounts, either individually or in the 
aggregate, of hazardous substances pollutants, contaminants, petroleum 
and petroleum products, and controlled substances (as defined in 21 
U.S.C. 802) that because of said quantities and amounts, generally 
would not pose a threat to human health or the environment.


Sec.  312.21  Results of inquiry by an environmental professional.

    (a) Persons identified under Sec.  312.1(b) must undertake an 
inquiry, as defined in paragraph (b) of this section, by an 
environmental professional, or conducted under the supervision or 
responsible charge of, an environmental professional, as defined in 
Sec.  312.10. Such inquiry is hereafter referred to as ``the inquiry of 
the environmental professional.''
    (b) The inquiry of the environmental professional must include the 
requirements set forth in Sec. Sec.  312.23 (interviews with past and 
present owners * * *), 312.24 (reviews of historical sources * * *), 
312.26 (reviews of government records), 312.27 (visual inspections), 
312.30 (commonly known or reasonably attainable information), and 
312.31 (degree of obviousness of the presence * * * and the ability to 
detect the contamination * * *). In addition, the inquiry should take 
into account information provided to the environmental professional as 
a result of the additional inquiries conducted by persons identified in 
Sec.  312.1(b) and in accordance with the requirements of Sec.  312.22.
    (c) The results of the inquiry by an environmental professional 
must be documented in a written report that, at a minimum, includes the 
following:
    (1) An opinion as to whether the inquiry has identified conditions 
indicative of releases or threatened releases of hazardous substances 
[and in the case of inquiries conducted for persons identified in Sec.  
312.1(b)(2) conditions indicative of releases and threatened releases 
of pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to 
the subject property;
    (2) An identification of data gaps (as defined in Sec.  312.10) in 
the information developed as part of the inquiry that affect the 
ability of the environmental professional to identify conditions 
indicative of releases or threatened releases of hazardous substances 
[and in the case of inquiries conducted for persons identified in Sec.  
312.1(b)(2) conditions indicative of releases and threatened releases 
of pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to 
the subject property and comments regarding the significance of such 
data gaps on the environmental professional's ability to provide an 
opinion as to whether the inquiry has identified conditions indicative 
of releases or threatened releases on, at, in, or to the subject 
property. If there are data gaps such that the environmental 
professional cannot reach an opinion regarding the identification of 
conditions indicative of releases and threatened releases, such data 
gaps must be noted in the environmental professional's opinion per 
paragraph (c)(1) of this section; and
    (3) The qualifications of the environmental professional(s).
    (d) The environmental professional must place the following 
statement in the written document identified in paragraph (c) of this 
section and sign the document:

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


Sec.  312.22  Additional inquiries.

    (a) Persons identified under Sec.  312.1(b) must provide the 
following information to the environmental professional responsible for 
conducting the activities listed in Sec.  312.21:
    (1) As required by Sec.  312.25 and if not otherwise obtained by 
the environmental professional, environmental cleanup liens against the 
subject property that are filed or recorded under Federal, tribal, 
State, or local law;
    (2) As required by Sec.  312.28, specialized knowledge or 
experience of the person identified in Sec.  312.1(b);
    (3) As required by Sec.  312.29, the relationship of the purchase 
price to the fair market value of the subject property, if the property 
was not contaminated; and
    (4) As required by Sec.  312.30, commonly known or reasonably 
ascertainable information about the subject property.
    (b) [Reserved].


Sec.  312.23  Interviews with past and present owners, operators, and 
occupants.

    (a) Interviews with past and present owners, operators, and 
occupants of the subject property must be conducted for the purposes of 
achieving the objectives and performance factors of Sec.  312.20(d) and 
(e).
    (b) The inquiry of the environmental professional must include 
interviewing the current owner and occupant of the

[[Page 52579]]

subject property. If the property has multiple occupants, the inquiry 
of the environmental professional shall include interviewing major 
occupants, as well as those occupants likely to use, store, treat, 
handle or dispose of hazardous substances [and in the case of inquiries 
conducted for persons identified in Sec.  312.1(b)(2) pollutants, 
contaminants, petroleum and petroleum products, and controlled 
substances (as defined in 21 U.S.C. 802)], or those who have likely 
done so in the past.
    (c) The inquiry of the environmental professional also should 
include, to the extent necessary to achieve the objectives and 
performance factors of Sec.  312.20(d) and (e), interviewing one or 
more of the following persons:
    (1) Current and past facility managers with relevant knowledge of 
uses and physical characteristics of the property;
    (2) Past owners, occupants, or operators of the subject property; 
or
    (3) Employees of current and past occupants of the subject 
property.
    (d) In the case of inquiries conducted at ``abandoned properties,'' 
as defined in Sec.  312.10, where there is evidence of potential 
unauthorized uses of the subject property or evidence of uncontrolled 
access to the subject property, the environmental professional's 
inquiry must include interviewing one or more (as necessary) owners or 
occupants of neighboring or nearby properties from which it appears 
possible to have observed uses of, or releases at, such abandoned 
properties for the purpose of gathering information necessary to 
achieve the objectives and performance factors of Sec.  312.20(d) and 
(e).


Sec.  312.24  Reviews of historical sources of information.

    (a) Historical documents and records must be reviewed for the 
purposes of achieving the objectives and performance factors of Sec.  
312.20(d) and (e). Historical documents and records may include, but 
are not limited to, aerial photographs, fire insurance maps, building 
department records, chain of title documents, and land use records.
    (b) Historical documents and records reviewed must cover a period 
of time as far back in the history of the subject property as it can be 
shown that the property contained structures or from the time the 
property was first used for residential, agricultural, commercial, 
industrial, or governmental purposes. For the purpose of achieving the 
objectives and performance factors of Sec.  312.20(d) and (e), the 
environmental professional may exercise professional judgment in 
context of the facts available at the time of the inquiry as to how far 
back in time it is necessary to search historical records.


Sec.  312.25  Searches for recorded environmental cleanup liens.

    (a) All appropriate inquiries must include a search for the 
existence of environmental cleanup liens against the subject property 
that are filed or recorded under federal, tribal, state, or local law.
    (b) All information collected regarding the existence of such 
environmental cleanup liens associated with the subject property must 
be provided to the environmental professional.


Sec.  312.26  Reviews of Federal, State, tribal and local government 
records.

    (a) Federal, tribal, State, and local government records or data 
bases of government records of the subject property and adjoining 
properties must be reviewed for the purposes of achieving the 
objectives and performance factors of Sec.  312.20(d) and (e).
    (b) With regard to the subject property, the review of federal, 
tribal, and state government records or data bases of such government 
records and local government records and data bases of such records 
should include:
    (1) Records of reported releases or threatened releases, including 
site investigation reports for the subject property;
    (2) Records of activities, conditions, or incidents likely to cause 
or contribute to releases or threatened releases as defined in Sec.  
312.1(c), including landfill and other disposal unit location records 
and permits, storage tank records and permits, hazardous waste handler 
and generator records and permits, federal, tribal and state government 
listings of sites identified as priority cleanup sites, and spill 
reporting records;
    (3) CERCLIS records;
    (4) Public health records;
    (5) Emergency Response Notification System records;
    (6) Registries or publicly available lists of engineering controls; 
and
    (7) Registries or publicly available lists of institutional 
controls, including environmental land use restrictions, applicable to 
the subject property.
    (c) With regard to nearby or adjoining properties, the review of 
federal, tribal, state, and local government records or databases of 
government records should include the identification of the following:
    (1) Properties for which there are government records of reported 
releases or threatened releases. Such records or databases containing 
such records and the associated distances from the subject property for 
which such information should be searched include the following:
    (i) Records of NPL sites or tribal- and state-equivalent sites (one 
mile);
    (ii) RCRA facilities subject to corrective action (one mile);
    (iii) Records of federally-registered, or state-permitted or 
registered, hazardous waste sites identified for investigation or 
remediation, such as sites enrolled in state and tribal voluntary 
cleanup programs and tribal- and state-listed brownfields sites (one-
half mile);
    (iv) Records of leaking underground storage tanks (one-half mile); 
and
    (2) Properties that previously were identified or regulated by a 
government entity due to environmental concerns at the property. Such 
records or databases containing such records and the associated 
distances from the subject property for which such information should 
be searched include the following:
    (i) Records of delisted NPL sites (one-half mile);
    (ii) Registries or publicly available lists of engineering controls 
(one-half mile);
    (iii) Registries or publicly available lists of institutional 
controls (one-half mile); and
    (iv) Records of former CERCLIS sites with no further remedial 
action notices (one-half mile).
    (3) Properties for which there are records of federally-permitted, 
tribal-permitted or registered, or state-permitted or registered waste 
management activities. Such records or databases that may contain such 
records include the following:
    (i) Records of RCRA small quantity and large quantity generators 
(adjoining properties)
    (ii) Records of federally-permitted, tribal-permitted, or state-
permitted (or registered) landfills and solid waste management 
facilities (one-half mile); and
    (iii) Records of registered storage tanks (adjoining property).
    (4) A review of additional government records with regard to sites 
identified under paragraphs (c)(1) through (c)(3) of this section may 
be necessary in the judgment of the environmental professional for the 
purpose of achieving the objectives and performance factors of Sec.  
312.20(d) and (e).
    (d) The search distance from the subject property boundary for 
reviewing government records or databases of government records listed 
in paragraph (c) of this section may be modified based upon the 
professional judgment of

[[Page 52580]]

the environmental professional. The rationale for such modifications 
must be documented by the environmental professional. The environmental 
professional may consider one or more of the following factors in 
determining an alternate appropriate search distance:
    (1) The nature and extent of a release;
    (2) Geologic, hydrogeologic, or topographic conditions of the 
subject property and surrounding environment;
    (3) Land use or development densities;
    (4) The property type;
    (5) Existing or past uses of surrounding properties;
    (6) Potential migration pathways (e.g., groundwater flow direction, 
prevalent wind direction); or
    (7) Other relevant factors.


Sec.  312.27  Visual inspections of the facility and of adjoining 
properties.

    (a) For the purpose of achieving the objectives and performance 
factors of Sec.  312.20(d) and (e), the inquiry of the environmental 
professional must include:
    (1) A visual on-site inspection of the subject property and 
facilities and improvements on the subject property, including a visual 
inspection of the areas where hazardous substances may be or may have 
been used, stored, treated, handled, or disposed. Physical limitations 
to the visual inspection must be noted.
    (2) A visual inspection of adjoining properties, from the subject 
property line, public rights-of-way, or other vantage point (e.g., 
aerial photography), including a visual inspection of areas where 
hazardous substances may be or may have been stored, treated, handled 
or disposed. Physical limitations to the inspection of adjacent 
properties must be noted.
    (b) Persons conducting site characterization and assessments using 
a grant awarded under CERCLA section 104(k)(2)(B) must include in the 
inquiries referenced in Sec.  312.27(a) visual inspections of areas 
where hazardous substances, and may include, as applicable per the 
terms and conditions of the grant or cooperative agreement, pollutants 
and contaminants, petroleum and petroleum products, and controlled 
substances as defined in 21 U.S.C. 802 may be or may have been used, 
stored, treated, handled or disposed at the subject property and 
adjoining properties.
    (c) Except as noted in this subsection, a visual on-site inspection 
of the subject property must be conducted. In the unusual circumstance 
where an on-site visual inspection of the subject property cannot be 
performed because of physical limitations, remote and inaccessible 
location, or other inability to obtain access to the property, provided 
good faith (as defined in Sec.  312.10) efforts have been taken to 
obtain such access, an on-site inspection will not be required. (The 
mere refusal of a voluntary seller to provide access to the subject 
property does not constitute an unusual circumstance.) In such unusual 
circumstances, the inquiry of the environmental professional must 
include:
    (1) Visually inspecting the subject property via another method 
(such as aerial imagery for large properties), or visually inspecting 
the subject property from the nearest accessible vantage point (such as 
the property line or public road for small properties);
    (2) Documentation of efforts undertaken to obtain access and an 
explanation of why such efforts were unsuccessful; and
    (3) Documentation of other sources of information regarding 
releases or threatened releases at the subject property that were 
consulted in accordance with Sec.  312.20(e). Such documentation should 
include comments by the environmental professional on the significance 
of the failure to conduct a visual on-site inspection of the subject 
property with regard to the ability to identify conditions indicative 
of releases or threatened releases on, at, in, or to the subject 
property, if any.


Sec.  312.28  Specialized knowledge or experience on the part of the 
defendant.

    (a) Persons to whom this part is applicable per Sec.  312.1(b) must 
take into account, their specialized knowledge of the subject property, 
the area surrounding the subject property, the conditions of adjoining 
properties, and any other experience relevant to the inquiry, for the 
purpose of identifying conditions indicative of releases or threatened 
releases at the subject property, as defined in Sec.  312.1(c).
    (b) All appropriate inquiries, as outlined in Sec.  312.20, are not 
complete unless the results of the inquiries take into account the 
relevant and applicable specialized knowledge and experience of the 
persons responsible for undertaking the inquiry (as described in Sec.  
312.1(b)).


Sec.  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 Sec.  312.1(b) must 
consider whether the purchase price of the subject property reasonably 
reflects the fair market value of the property, if the property were 
not contaminated.
    (b) Persons who conclude that the purchase price of the subject 
property does not reasonably reflect the fair market value of that 
property, if the property were not contaminated, should consider 
whether or not the differential in purchase price and fair market value 
is due to the presence of releases or threatened releases of hazardous 
substances.
    (c) Persons conducting site characterization and assessments with 
the use of a grant awarded under CERCLA section 104(k)(2)(B) and who 
know that the purchase price of the subject property does not 
reasonably reflect the fair market value of that property, if the 
property were not contaminated, should consider whether or not the 
differential in purchase price and fair market value is due to the 
presence of releases or threatened releases of hazardous substances, 
pollutants, contaminants, petroleum and petroleum products, and/or 
controlled substances as defined in 21 U.S.C. 802.


Sec.  312.30  Commonly known or reasonably ascertainable information 
about the property.

    (a) Throughout the inquiries, persons to whom this part is 
applicable per Sec.  312.1(b) and environmental professionals 
conducting the inquiry must take into account commonly known or 
reasonably ascertainable information within the local community about 
the subject property and consider such information when seeking to 
identify conditions indicative of releases or threatened releases, as 
set forth in Sec.  312.1(c), at the subject property.
    (b) Commonly known information may include information obtained by 
the person to whom this part applies per Sec.  312.1(b) or by the 
environmental professional about releases or threatened releases at the 
subject property that is incidental to the information obtained during 
the inquiry of the environmental professional.
    (c) To the extent necessary to achieve the objectives and 
performance factors of Sec.  312.20(d) and (e), the environmental 
professional should gather information from varied sources whose input 
either individually or taken together may provide commonly known or 
reasonably ascertainable information about the subject property; the 
environmental professional may refer to one or more of the following 
sources of information:
    (1) Current owners or occupants of neighboring properties or 
properties adjacent to the subject property;
    (2) Local and state government officials who may have knowledge of, 
or

[[Page 52581]]

information related to, the subject property;
    (3) Others with knowledge of the subject property; and
    (4) Other sources of information (e.g., newspapers, websites, 
community organizations, local libraries and historical societies).


Sec.  312.31  The degree of obviousness of the presence or likely 
presence of contamination at the property, and the ability to detect 
the contamination by appropriate investigation.

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

[FR Doc. 04-19429 Filed 8-25-04; 8:45 am]
BILLING CODE 6560-50-P[FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][PRORULES]