Sec. 312.29, Commonly Known or Reasonably Ascertainable Information About the Property What information is commonly known and who commonly knows it? The environmental professional may refer to one or more of four listed sources of information. At such time that this rule is eventually sorted out in the courts, will only one of the four be enough? This question begs 734 specific resolve now rather than later because of the liability issues. Was the information reasonably obtainable? This is extremely arbitrary. The performance based approach of the new rule will, however, force environmental consultants to spend many hours researching the commonly known category newly created by this rule. ICF assumes that this category is already included in searches conducted pursuant to ASTM E1527 and allocates no additional cost. This is incorrect. ASTM E1527 00 § 7.1.4; and <IP_ADDRESS> fulfill the requirements of CERCLA and strictly limit the application of commonly known or reasonably ascertainable information to specifically enumerated sources. The new rule requires consultants to conduct an open ended search throughout the local community.

Even the sources have fundamental flaws in being obtainable or practical. Source ( 1) Current owners or occupants of neighboring properties who may have knowledge of, or, information related to the subject property  Problem: in a private sector transaction, the existence of the transaction itself, particularly in the early stages, is confidential in nature. Source ( 2) Local and State government officials who may have knowledge of, or, information related to the subject property  Problem: Fire Marshals and other such individuals in local government departments have their own responsibilities and are spread thin due to inadequate staffing. Thusly, these resources are not practical or readily ascertainable, but would the courts see it in the light of such practical reality? Source ( 3) Others with knowledge of the subject property  Problem: who are others and will the courts decide. Source ( 4) Other sources of information, eg. newspapers, websites, community organizations, local libraries and historical societies, Problem: also concerns me from a liability perspective. Does a Google search turn something up? Does the librarian know something that the other librarian doesn't?

The above paragraph references some of the practical considerations and liability issues but the economic dynamic remains. What are the cost dynamics of discovering this " commonly known and reasonably ascertainable information?" Exhibit 7 7 indicates that no price increase will occur. ICF's conclusion is based on invalid assumptions and is erroneous.

Response: With respect to historical sources review, the final rule does not require any additional historical sources to be reviewed that are not already within the realm of sources required to be consulted by the ASTM E1527 2000 standard. With respect to governmental records, the final rule does explicitly require review of tribal records. EPA, however, clarified in the preamble to the final rule that tribal records need only be searched for and reviewed in those instances where the subject property is located on or near tribal owned lands. When such records are not available, necessary information should be sought from other sources. The EIA assumed that this requirement would be fulfilled to the extent that tribal records are easily available, through, for example, the EDR database. If such records are not available, it is likely that the environmental professional would attempt to obtain the relevant information during the interview process, and therefore there would be no incremental cost associated with the requirement.

The final rule requires environmental professionals to supplement the searches and reviews of historical and governmental records with commonly known or reasonably ascertainable information about the subject property. This requirement was included in the previous provisions for the CERCLA innocent landowner defense and, therefore, is not an incremental burden imposed by the 735 final rule. The sources of information listed in the final rule are provided as examples only. There may be additional, or better, sources of commonly known information. Many sources of information may be reasonably attainable.

Commenter Organization Name: Hearn, J Clark Comment Number: 0434 Excerpt Number: 3 Other Sections: NEW  3.8.1  The environmental professional should not be required to consider the relationship of the purchase price to the value of the property Excerpt Text: Although the proposed rule apparently envisions that the valuation analysis will be conducted by the purchaser rather than the environmental professional, it also requires the report of the environmental professional to take into account this information. The Environmental professional simply has no business in this part of a real estate transaction. In the private sector, the purchase price of a property is confidential to the buying and selling parties involved in the transaction. The third party vendors are not commonly privy to this information and are not expected to ask. If I were to make common practice of asking my clients about the financial specifics of their deal, they would tell me that it is none of my business, and they would be right. Private sector transactions as they are being conducted are just that, private.

In any event, the ICF analysis includes a modicum of time for the environmental professional to consider this market value information, but no time or cost allocation for the purchaser to conduct the market value analysis. The actual conduct of the market valuation will definitely have some cost. If the environmental professional were to be responsible for considering this information ( which I oppose) it would surely take longer than the half hour allotted by ICF and would surely come into play in virtually all transactions because the purchaser would conduct a defensive appraisal for fear of liability exposure.

Beyond this, an environmental professional is not in an informed position to be able to " take into account" such comparable price analyses of multiple parcels of real estate in an area and draw an experienced conclusion regarding purchase price. But that is what proposed section 312.21( b) would require. This is a separate industry altogether. I urge that this proposed section 3.12.29 be removed.

Response: EPA disagrees with the commenter that the requirement to consider the relationship between the purchase price and the fair market value of the property ( if it were not contaminated) will significantly impact the costs of conducting Phase I ESAs. The final rule does not require that a formal real estate appraisal be conducted. In addition, this requirement has been part of the all appropriate inquiries requirements since Congress amended CERCLA to provide for the innocent landowner defense in 1986. The requirement in the final rule includes no changes to the previous requirement. Therefore, the EIA only accounts for some incremental labor hour burden for the environmental professional to document the results of an inquiry into the relationship of the purchase price to the value of the property. This requirement, however, is expected to impact only 736 a fraction of the properties ( i. e., those where there are significant differences between the purchase price and the fair market value of the property).

With respect to the commenter's request that the requirement under § 312.29 be removed from the rule, the Agency notes that this requirement is one of the ten statutory criteria specifically required by Congress to be included in the final regulation. In addition, this requirement has been part of the all appropriate inquiries provisions under the CERCLA innocent landowner defense since 1986. Therefore, the Agency did not make any modification to this requirement in the final rule.

Commenter Organization Name: Hearn, J Clark Comment Number: 0434 Excerpt Number: 4 Other Sections: NEW  6.6  Impact of the rule on the cost of liability insurance Excerpt Text: In addition to the sections discussed above, the interviews, historical sources, and lien search provisions of the new rule all add substantial cost and uncertainty to the conduct of a phase 1 site assessment.

The ASTM  1527 protocol serves the private sector efficiently from both the performance and cost perspectives. The proposed AAI rules essentially forces a public sector approach to real estate transactions on a private sector marketplace that operates under strict time and cost constraints. Nonetheless, the overall time and cost ramifications on the private sector marketplace have not been been credibly addressed by ICF in the document issued for the EPA. The zero time and related cost allowances put forth by ICF not only ignore the obvious labor cost burdens but also the related abstract costs such as increased professional liability premiums, more conducted Phase II's to close data gaps, and fewer providers in the marketplace as a result of the proposed stringent Environmental professional qualifications.

ICF's determinations are arbitrary in nature and may well be based on arbitrarily established foundations. Such arbitrary foundations were voiced by EPA representatives at an AAI workshop held as part of ASTM's meeting in Washington DC on October 5, 2004, " ICF's baseline was E 1527, but that's not being met right now by many poor quality consultants. If the industry was truly following ASTM, the impact wouldn't be as great. Many are claiming their Phase Is are ASTMcompliant when in fact they're falling short of the bar." Seems to be a perception among committee members and EPA players here that if you're doing good work now, then there's not a whole lot that's changing.

The base line is, in fact, that the private sector market place is functioning well under E 1527 and that most consultants are doing their jobs in compliance with the protocol. The new rule simply adds a significant amount of work that is not required by current industry practice. The proposed AAI rules significantly expand consultant liability exposure, which will result in higher errors and omissions insurance premiums. The new rule will increase labor costs and associated time dynamics of the due diligence process. In many instances it may be impossible to comply with the new rule within the timeframe that the marketplace allows for closing commercial real estate transactions. 737 Response: The Agency based its cost estimates on an evaluation of the differences between the proposed standards for the rule and the content of the ASTM E1527 2000 standard. EPA identified the technical differences between the proposed rule and the ASTM E1527 2000 standard and then estimated the costs associated with conducting those regulatory activities that represent tasks over and above those conducted in implementing the ASTM standard.

With respect to the commenter's remark regarding the incremental burden, the commenter failed to recognize that the EIA includes estimates of incremental burden hours for a number of the new requirements included in the proposed and final rules.

With respect to the commenter's remark regarding liability insurance, it is not clear that the insurance industry would react to the final rule as the commenter indicates. It is also possible, for example, that insurance companies will cut premiums for all policies that might be affected by CERCLA as a result of additional liability protection the statute offer to prospective landowners who comply with the provisions of the final rule.

With respect to the commenter's remark regarding the proposed definition of environmental professional, EPA has modified the definition in the final rule to provide for persons who have 10 years of full time relevant experience, but do not have a Baccalaureate degree, to qualify as environmental professionals. The definition in the final rule is less stringent than the definition included in the proposed rule and allows for most people currently conducting environmental site assessments to qualify as environmental professionals.

Commenter Organization Name: Wike, Dennis Comment Number: PM 0127 0003 Excerpt Number: 2 Excerpt Text: My one question I saw in here is the issue of the proposed cost. Help me if I'm wrong, but is that proposed in there that they think it will only cause a $ 46 increase to go from a Phase I today to the all appropriate inquiries?

If that's correct, I would disagree with that. I think you'll see a several hundred dollar increase per Phase I. I believe the product to be substantially better and I believe the qualifications of those conducting it will be substantially better, and I think you will do the general industry a great service by keeping those standards in there and requiring that the professionals that do this demonstrate that they are professionals.

Response: EPA thanks the commenter for the stated support of the provisions of the final rule.

The Agency based its cost estimates on an evaluation of the differences between the proposed standards for the rule and the content of the ASTM E1527 2000 standard. EPA identified the technical differences between the proposed rule and the ASTM E1527 2000 standard and then 738 estimated the costs associated with conducting those regulatory activities that represent tasks over and above those conducted in implementing the ASTM standard.

To address public comments regarding the potential cost impacts of the final rule, EPA conducted a sensitivity analysis in the addendum to the EIA. The analysis shows that the final rule will not have annual impacts in excess of the $ 100 million threshold set for major rules even if the incremental costs per Phase I ESA increases, on average, by $ 200.

Commenter Organization Name: Dismukes, James Comment Number: PM 0127 0012 Excerpt Number: 3 Excerpt Text: The third issue, on cost, I think it's a little off base. The requirement of checking the environmental liens itself is about a $ 250 process on average, to hire someone qualified to go down to a court house to run the records and pull these liens out. That in itself would add in round numbers, $ 250 to the price of a Phase I report.

Response: EPA thanks the commenter for his suggestion. Under the ASTM E 1527 2000, it is the prospective property owner's, or the user's, responsibility to check for environmental liens that are currently recorded against the subject property, and to report these to the environmental professional conducting the Phase I ESA. The final rule does not impose any different requirements than the current ASTM standard; therefore, there would be no incremental cost ( labor or expenses) incurred under the final rule. Even if the cost of a title search is explicitly accounted for under the base case ( the ASTM E1527 2000 standard) and under the final rule, the average incremental cost per transaction would stay unchanged.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 17 Other Sections: MODIFIED  <IP_ADDRESS>  Search distance for institutional and engineering controls Excerpt Text: The requirement of § 312.26 to search registries or publicly available information for brownfield sites, engineering controls, and institutional controls is simply not feasible. Such records are typically kept in a property by property basis, e. g., recorded in title records for each property. Surely, Congress did not intend searching title records for every parcel of real estate within onehalf mile for each proposed transaction. Similarly, the Economic Impact Analysis did not include any costs to address these requirements that are above the current E 1527 00 practice. Therefore, the Analysis understates the impact of this Proposed Rule.

Response: EPA thanks the commenters for their concern regarding the cost burden associated with the proposed rule under § 312.26. EPA agrees with the commenter that the EIA underestimated the 739 incremental labor hours required to conduct the search for institutional controls, as required under the proposed rule. EPA, however, revised the search requirement for institutional controls in the final rule by limiting the search for institutional controls to the subject property. The EIA, therefore, does not need to be revised. 740 4.2 The Volume of Phase I ESAs Performed Using the AAI Standard is Overestimated/ Underestimated Commenter Organization Name: Morris, Michael Comment Number: 0114 Excerpt Number: 1 Excerpt Text: Several assumptions were made regarding the frequency that the AAI protocol will be used. Although the AAI regulations will apply to most commercial property transactions, there will be a substantial number of assessments that will not fulfill all the criteria. Many of these incomplete assessments will be abbreviated at the request of the client to reduce the cost. Furthermore, because of the increased cost for an assessment, fewer assessments will be performed. This will be especially true in small brownfield type parcels where the assessment cost becomes a significant increase in the total cost of the transition.

Response: EPA thanks the commenter on his concern regarding the number of affected properties. Because the final rule will increase the level of certainty regarding the criteria that must be met for a prospective property owner to obtaining protection from CERCLA liability, while imposing only minimal cost increases, we do not believe the rule will have a significant negative effect on the volume of Phase I ESAs conducted, as the commenter has indicated. We recognize, however, that there is a degree of uncertainty surrounding the number of prospective property owners who will be affected by the final rule. To the extent that the EIA overestimated the number of affected prospective property owners ( or property transactions), as the commenter has suggested, the total cost of the final rule also is overestimated.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 16 Excerpt Text: The methodology used to estimate the cost and impacts of todays proposed rule, including the estimated incremental labor hours used to estimate the incremental cost of the proposed rule.

This estimate depends in large part upon assumptions about changes in practice from the Current ASTM 1527 and 1528. From my experience, while the stated purpose of conducting an ASTM Phase 1 or Transaction Screen is to satisfy one of the requirements for an innocent landowner defense, that is rarely the reason they are performed. This is important because the ASTM documents are primarily used as a screening document to identify environmental business risk. Individuals that were specifically concerned about ILD, especially on a complicated site would use a Phase 1 and not a Transaction Screen. I suppose one could argue that since the TS screen isn't commonly used for ILD there is no need to address it as a side by side comparison of cost. People are still free to use a Transaction Screen type document if they do not desire the LLP's. My guess is that industry will not adopt AAI as the only environmental due diligence process. This would reduce the estimated cost impacts. 741 Response: EPA thanks the commenter on his suggestion on the volume of Phase I ESAs that may be conducted in compliance with the final rule. We agree with the commenter that there is a degree of uncertainty surrounding the number of affected parties or property transactions under the final rule. To the extent that the EIA overestimated the number of affected properties, as the commenter has suggested, the total cost of the final rule also is overestimated.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 2 Excerpt Text: Cost  While the cost of performing " phase I" investigations probably suffers little impact as a result of the proposed rule, the frequency of phase I investigations will likely increase as a result of elimination of transaction screens as a means of satisfying requirements for AAI. I do not believe that the increased frequency of phase I investigations was considered in evaluating the cost impact of this regulation. The economic analysis should be revised to reflect these additional costs. ( Note that it is my understanding that elimination of the transaction screen stems from counsel's interpretation of the legislation, not conclusions of the FACA committee.)

Response: The EIA did consider the increased frequency of Phase I ESAs and the potential decreased use of the transaction screen after promulgation of the final rule. Specifically, in the EIA, EPA assumed that properties transitioning from transaction screens to Phase I ESAs would account for three percent of the total Phase I ESAs performed annually. 742 4.3 The Impact of the Rule on State, Local, and Tribal Governments Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 10 Excerpt Text: On a side note, this impact will also have a chilling effect on minority environmental business bids for government contracts. Government agencies will be forced to accept less minority environmental business and submit to engineering firm prices ( reasonable or not).

These numbers are significant, and will receive negative impact from the regulation directly and indirectly. Using the calculation of total minorities in the non engineering environmental profession, approximately $ 39,505,232,188 in wages will be lost or significantly impacted by the proposed regulation [ Footnote: Average Hourly Earnings of Production and Non Supervisory Workers, Database ( Washington: Bureau of Labor Statistics, September 2004).]. The reason why these wages and jobs will be lost is the fact that engineers will receive a legalized monopoly by EPA for Brownfields assessments. Simply, put other non engineering environmental professionals will either be absorbed into engineering firms for lower engineering technician wages or be driven to unemployment.

Ironically, the regulation will have a severe effect of non engineering environmental professionals in states where USEPA has already piloted Brownfields programs such as Montana, Utah, and Colorado [ Footnote: USEPA Region 8 Brownfields Assessment Pilots/ Grants, Map ( Washington: US Environmental Protection Agency, March 2004).]. Each of these states have moderate to high unemployment and have Brownfields programs [ Footnote: US Unemployment Rates by State Map ( Washington: Bureau of Labor Statistics, September 2004).].

It might be argued that this number is too high; however, it was calculated using minimum wage standards for all professions. In reality, this should be significantly higher based on average wages for environmental professionals and would probably enter the hundreds of billion of dollars in lost wages. Even at a fraction, the lost wages alone will indirectly have a significant impact on taxes and funding for future environmental programs.

Response: In response to many comments EPA received on the proposed definition of environmental professional, EPA modified the definition in the final rule to provide for persons who have 10 years of full time relevant experience in performing environmental site assessments, but do not have a Baccalaureate degree, to qualify as environmental professionals. The definition of environmental professional in the final rule is less stringent than the definition included in the proposed rule and allows for most people who currently are conducting environmental site investigations to qualify as environmental professionals. 743 Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 11 Excerpt Text: States Rights The US Environmental Protection Agency has failed to recognize the other professional licenses offered by individual State departments of professional regulation. Licenses in California and Nevada have comparable programs that are endorsed and operated by regulatory bodies that offer the same types of services that a Brownfields professional can offer through the proposed regulation. If the proposed regulation is adopted, other environmental professionals will leave these licenses to pursue other types of employment or different licensure. Simply put, individual State governments will lose revenue at the expense of the proposed regulation. While this lost revenue at the State level may not be significant to Federal programs, it will impact State department of natural resource programs that are an indirect recipient of these lost revenues.

Response: The definition of environmental professional in the final rule ( as did the definition in the proposed rule) allows for individuals who are not P. E. s or P. G. s to qualify as environmental professionals. The final rule ( as did the proposed rule) specifically recognizes within the definition of environmental professionals, individuals licensed or certified by a state or tribal agency to conduct environmental site assessments.

In addition, the final rule allows for persons who do not qualify as environmental professionals to contribute to the required investigations as long as their activities are conducted under the responsible charge of the environmental professional.

In response to many comments EPA received on the proposed definition of environmental professional, EPA modified the definition in the final rule to provide for persons who have 10 years of full time relevant experience in performing environmental site assessments, but do not have a Baccalaureate degree, to qualify as environmental professionals. The definition of environmental professional in the final rule is less stringent than the definition included in the proposed rule and allows for most people who currently are conducting environmental site investigations to qualify as environmental professionals.

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 10 Excerpt Text: In addition, DEQ believes that the proposed AAI rule potentially imposes an enforceable duty on state, local and tribal governments. If an entity applies for a brownfields grant, AAI must be conducted on all sites where the money will be spent. In the case of brownfields cleanup grants, AAI must be conducted prior to applying for the brownfields funds; therefore, DEQ believes that 744 the statement " The proposed rule imposes no enforceable duty on any state, local, or tribal governments" is incorrect.

Response: To establish eligibility, brownfields cleanup grant applicants must demonstrate that they own the property where the cleanup will be conducted and that the applicant is not a potentially responsible party. The most common way of making that demonstration is by establishing that the applicant is a bona fide prospective purchaser of the property. The requirements for qualifying as a bona fide prospective purchaser include conducting all appropriate inquiries prior to the date of acquisition of the property. This is not an enforceable duty under the Unfunded Mandates Act. No one is required to apply for a brownfields grant. In cases where EPA awards a brownfields assessment grant, the statute requires that the assessment be conducted in compliance with the all appropriate inquiries rule. However, the cost of the assessment is covered by the grant. In addition, Congress established the requirements for grant eligibility in the Small Business Liability Relief and Brownfields Revitalization Act. In the final rule setting federal standards for the conduct of all appropriate inquiries, EPA does not require any additional parties to conduct all appropriate inquiries. The applicability of the standards is established in CERCLA and includes only those parties wishing to obtain protection from CERCLA liability as bona fide prospective purchasers, innocent landowners, or contiguous property owners and those who receive brownfields grants to conduct property assessments. 745 SECTION 5: Comments on the Paperwork Reduction Act Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 20 Other Sections: NEW  3.3  Review of historical sources of information Excerpt Text:  The proposed information collection requirements, including the need for such information, the accuracy of the provided burden estimates associated with the requirements, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques.

 While Intertox does not have any comment about U. S. EPA's burden estimates we do believe that the use of automated collection techniques represents information liability to the environmental professional. It is common practice for environmental consultants to use several national companies to conduct review of government records. When these services first became available in the late 1980s the quality was suspect, however, these searches are now reliable and accurate. What we are concerned with is the use of these companies by environmental professionals for reviewing historical sources of information. For instance, city directory research, recorded title searches, and interviews with local government officials are offered by these companies. It is our experience, especially with recorded title searches, that the effort expended by these companies is insufficient to adequately characterize a site's history. We have seen in particular, poorly conducted title searches and city directory searches that are incomplete. In addition, only the environmental professional should make contact with local government officials, as they know better than anyone else the questions that need to be asked relative to their subject property. Accordingly, we recommend that automated collection techniques not be utilized to acquire historical sources of information.

Response: EPA appreciates the commenter's concerns. When information is collected from secondary sources, the environmental professional and the prospective purchaser should make every effort to evaluate the quality of the information prior to accepting its accuracy. Given the time and cost burdens that could be associated with requiring every prospective property owner to collect all historical records information from primary sources, when excellent and accurate secondary sources are available, the Agency can not disallow the use of automated data collection techniques, as the commenter proposes. 746 SECTION 6: Miscellaneous 6.1 EPA Should Adopt ASTM Standard Rather than Develop Separate Regulations Commenter Organization Name: Franz, Barry Comment Number: 0068 Excerpt Number: 1 Other Sections: NEW  <IP_ADDRESS>  Support of the performance standard Excerpt Text: Some key points of the AAI rule that I like is the fact that the AAI rule encourages a performance based approach rather than a " prescriptive/ mandatory" application of a standard ( e. g. ASTM El527 00). This approach allows an environmental professional to resolve data gaps based upon the professional's experience. Another critical aspect of the AAI rule that I like and appreciate, is the definition of what constitutes an environmental professional and what qualifications one should have.

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

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

Response: EPA thanks the commenter for the stated support for the performance based approach to the final rulemaking.

Prior to the development of the proposed rule, EPA determined that the ASTM E1527 2000 standard was inconsistent with applicable law. Since publication of the proposed rule, ASTM International has updated its E1527 Phase I Environmental Site Assessment Process to address the inconsistencies. EPA has determined that the updated standard is compliant with the statute criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 and entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to comply with the final rule. 747 Commenter Organization Name: Wood, Larry Comment Number: 0218 Excerpt Number: 1 Excerpt Text: 1. I am a user of the current ASTM Standard E1527 " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process". It is my understanding that USEPA is considering the creation of a document having the sole purpose of replacing the current ASTM E1527.

2. I feel the current E1527 Standard is useful, appropriate and valuable for the purpose intended. I would hope the USEPA ensures this Standard remains part of the Environmental Site Assessment process. I am not a member of ASTM and have no vested interest in the document but personally consider the work ASTM has put in to development and maintenance to be very valuable to the Environmental Assessment Process.

3. Any process can be improved, but I see no need for the EPA to spend money to develop a new standard to replace E 1527. The Federal Government has been mandated to reduce internal standards and incorporate Industry Documents where appropriate, and E1527 is one of the better examples of a valuable, coherent and useful Industry Document. I suggest that EPA adopt the document and issue only necessary additional guidance which may not be currently incorporated in it. Even then, ASTM has often added " Federal Government" Appendix sections to existing Standards, therefore EPA may find it more cost effective in pursuing one of these courses of action over development of a new Government Document.

Response: EPA's purpose for developing the proposed and final rule was not to replace the ASTM standard. Congress directed EPA, in the Small Business Liability Relief and Brownfields Revitalization Act, to develop regulations setting federal standards for the conduct of all appropriate inquiries. Prior to developing the proposed rule, EPA considered adopting the ASTM E1527 standard as the federal regulatory standard. However, EPA determined that the ASTM E1527 2000 standard was inconsistent with applicable law.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and updated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International, known as Standard E1527 05 and entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule. 748 Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 18 Excerpt Text: The identification of voluntary consensus standards that are applicable to and compliant with today's proposed standards and practices for all appropriate inquiry.

I think EPA was in error concluding that the alternative of adopting ASTM 1527 would be inconsistent with applicable law. Even if you conclude that the 2000 version of the document is not in compliance, the ASTM process can easily adopt modifications to the current practice to make it fully compatible with AAI. It is far preferable to use an existing and widely adopted consensus standard than to embark on a rule making process that reinvents the wheel. I recommend adopting an appropriately modified standard by reference and making whatever minor clarifications ( by federal rulemaking) that are required to address any items not fully covered by the ASTM standard. This would include the issues related to continuing responsibility, sale price, or controlled substances for example. Specifically the reasoning EPA concluded that the existing standard did not comply with the ten specific criteria to be included in the AAI are discussed below:

The ASTM standards do not provide for interviews with past owners operators and occupants   The current version of the standard does not specifically speak to past owners but clearly would imply that if the key site manager was a past owner or operator that they would be the preferred interviewee. The revised 1527 document currently in draft stage was modified to more specifically identify the role of the past owners, operators and occupants in the interview process. The basic principle is still to find the person that knows the most about the site.

Reviews of historical sources, , to determine the previous uses and occupancies of the real property since the property was first developed. The ASTM standard is more restrictive since it requires going back to at least 1940 or the earliest development. Under AAI you could stop in 1989 if that was the first development. The concern about the use of the term obvious in the ASTM standard is a semantic argument of dubious merit. Any fair reading of the ASTM standard leads to the conclusion that it is compliant with the intent of the legislation.

ASTM does not mandate visual inspection of adjoining properties. This is another largely semantic argument. The current ASTM standard sections <IP_ADDRESS> and <IP_ADDRESS> speak to observations of the current and past uses of adjoining properties and section <IP_ADDRESS> goes on to speak about current and past uses in the surrounding area. All three sections state to the extent they are visually and physically observed. Clearly the intent is to visually observe not only the adjacent but also the surrounding properties.

The relationship of the purchase price to the value of the property The ASTM limited this requirement to actual knowledge. The statute does not make this restriction. If the actual language is objectionable it could easily be dropped from the ASTM 749 standard. This is really a side bar issue to the Phase I, not unlike the new requirements for continuing obligations related to corrective action. It is probably better handled outside the Phase 1 process since it the EP does not participate by providing any input into representations regarding the purchase price. In fact the EP usually is not told the purchase price.

CERCLA states that standards for all appropriate inquiry shall include: cleanup liens against the facility that are filed under Federal, State or local laws. The current ASTM version in Section 5.2 does speak only to liens recorded in the title records. The document as a whole could be read to imply that liens must be located in sources other than the titles. In Sections <IP_ADDRESS> there is broader language regarding helpful documents. The use of cleanup liens is a relatively new practice and, except for a few states that have started maintaining registries, they are most often found in title records or the owner's files.

Response: Prior to the development of the proposed rule, EPA determined that the ASTM E1527 2000 standard was inconsistent with applicable law. Since publication of the proposed rule, and as the commenter points out, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and updated the A2000" version of the E1527 standard to address EPA= s concerns regarding the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle.

EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International, known as Standard E1527 05 and entitled " Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 1 Other Sections: NEW  6.7  Negotiated rulemaking committee/ process Excerpt Text: ASTM E 1527 00 is a consensus Standard developed with input from the EPA, lenders, users and preparers of ESAs. The Pre Amble states that the ASTM E 1527 00 is inconsistent with applicable law . Without commenting on the accuracy of the EPA's contention, R& W notes that the EPA set out to create a duplicative standard through the NRA/ FACA process instead of continuing more than ten years of cooperative effort with the ASTM Committee E 50. The FACA included several interest groups that do not directly use or participate in the Phase I ESA/ AAI process. These include environmental interest groups, the environmental justice community, residential builders, solid waste officials, and the U. S. Conference of Mayors. While these parties have essentially no direct interest in the AAI process, they never the less exerted 750 significant influence on the Proposed Rules. Therefore, the evolution of the Proposed Rules was fundamentally flawed. A more reasonable solution would have been to work with the E 50 Committee to make adjustments to E 1527 00, as opposed to starting over with a flawed FACA. R& W requests the EPA to abandon this redundant effort and work with E 1527 00 to address the perceived deficiencies of E 1527 00.

Response: EPA disagrees with the commenter's statement that members of the FACA Committee that negotiated the proposed rulemaking had no direct interest in the AAI process. Many of the interest groups cited by the commenter represent constituencies who often purchase potentially contaminated properties or live near contaminated properties and therefore will be directly affected by a federal rulemaking setting standards for the conduct of all appropriate inquiries. The Federal Advisory Committee Act and the Negotiated Rulemaking Act require that the membership of a negotiated rulemaking committee include a balanced membership of affected stakeholders. All members of the negotiated rulemaking committee that negotiated the proposed rulemaking provided valuable insight and input to the negotiations.

Prior to the development of the proposed rule, EPA evaluated the ASTM E1527 2000 standard against the criteria for the federal standard provided by Congress in the Small Business Liability Relief and Brownfields Revitalization Act and determined that the ASTM standard was inconsistent with applicable law. Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and updated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a fiveyear cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 22 Other Sections: NEW  1.1.2  General opposition to the proposed rule Excerpt Text: In summary, R& W believes that the NRA/ FACA process has created redundant, expensive, and unworkable Proposed Rules. The EIA ignores increased requirements of the Proposed Rules and their associated costs. Therefore, R& W requests that the EPA withdraw the Proposed Rules and continue its historical cooperation with ASTM to tweak the E 1527 00 Standard Practice, if necessary, to comply with the legislative requirements. 751 Response: EPA disagrees with the commenter's statement that the proposed rule is redundant, expensive and unworkable. The proposed rule was developed by a committee whose membership included representatives from 25 stakeholder groups, many of whom are familiar with the ASTM E1527 standard and have significant experience working with the ASTM E1527 Phase I Environmental Site Assessment Process. The economic analysis developed for the proposed rule included a task by task comparison of the ASTM standard activities and the activities required by the proposed rule. This analysis resulted in the identification of all incremental activities required as a result of the proposed rule ( those that are over and above the activities required under the ASTM standard). The analysis also included an estimate of the incremental costs associated with the additional activities. The results of these analyses were included, in detail, in the Economic Impact Analysis Document included in the docket for the proposed rule and showed that the weighted average incremental cost for complying with the requirements of the proposed rule was relatively low.

Although EPA is not withdrawing the proposed rule, EPA supported ASTM International in its efforts to review and update its E1527 standard. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: CBPA Comment Number: 0344 Excerpt Number: 8 Excerpt Text: Moreover, there appears to be no reason why the current standard, ASTM El 527, with relatively minor additions and changes, should not continue as the standard for All Appropriate Inquiries.

Response: See response to comment number 0320, excerpt 22. Since publication of the proposed rule, ASTM International updated its E1527 Phase I Environmental Site Assessment Process. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule. 752 Commenter Organization Name: Grand Rapids C of C Comment Number: 0345 Excerpt Number: 1 Excerpt Text: For many years, environmental assessments conforming to the current ASTM standard have qualified as " all appropriate inquiry" under CERCLA. Businesses and environmental consultants have become familiar with the standard. There is no indication that the current ASTM standard is deficient in any way. Rather than tweaking the current ASTM standard in a way that would appear to increase costs to businesses and create uncertainty in real estate transactions, the Grand Rapids Area Chamber of Commerce requests that the EPA adopt the current ASTM standard as the " all appropriate inquiry" standard under CERCLA. At the very least, the Grand Rapids Area Chamber of Commerce requests that the EPA consider conforming the proposed rule to the current ASTM standard in the areas identified below.

Response: As discussed in the preamble to the proposed rule, prior to the development of the proposed rule, EPA evaluated the ASTM E1527 2000 standard against the criteria for the federal standard provided by Congress in the Small Business Liability Relief and Brownfields Revitalization Act and determined that the ASTM standard was inconsistent with applicable law.

Since publication of the proposed rule, ASTM International updated its E1527 Phase I Environmental Site Assessment Process. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 9 Other Sections: NEW  3.8  Considering the relationship of the purchase price to the value of the property Excerpt Text:  b. Congress intended to continue the ASTM E1527, § 5.4 " actual knowledge" requirement, not impose a new market valuation requirement.

EPA states that the new market valuation requirement of § 312.29 is required by the Brownfields Revitalization Act of 2001, and the existing ASTM E1527 treatment of the relationship of purchase price to value cannot continue because " ASTM limits this requirement to actual knowledge by the defendant of a significantly lower price for a property when compared with comparable properties. The statute's criteria does not limit this to actual knowledge." 69 Fed. Reg. at 52575. 753 We do not agree with EPA's construction of the statute. The " statute's criteria" that EPA refers to is "[ t] he relationship of the purchase price to the value of the property, if the property was not contaminated." 42 U. S. C. § 9601( 35)( B)( iii)( VIII). This statutory criteria has been a part of all appropriate inquiry since 1986. See Pub. L. No. 99 499, 100 Stat 1613 ( SARA Amendments) ( 1986). ASTM E1527 00, § 5.4, the " actual knowledge" requirement regarding the relationship of the purchase price to the value of the property if the property was not contaminated, was developed in direct response to the statutory criteria cited by EPA. See ASTM E1527 93, § X1.2.4; See also ASTM E1527 93, § 5.4.

The Brownfield Revitalization Act's command is to promulgate a regulation " to carry out all appropriate inquiries" in accordance with " good commercial and customary standards and practices." 42 U. S. C. § 9601( B). All parties concerned with this rule, including EPA, have agreed that ASTM E1527 00 represents current good commercial and customary standards and practices. Therefore, by definition and as a matter of law, ASTM's limitation of the purchase price requirement to " actual knowledge" does satisfy the statutory criteria. Whereas the committee's new valuation requirement is not consistent with good commercial practice, increases uncertainty, and does not satisfy the statutory criteria.

Upon reconsideration, we hope you will agree with us and will retain the " actual knowledge" standard of ASTM E1527.

Response: EPA disagrees with the commenter. The statute does not limit the requirement to consider the relationship of the purchase price to the value of the property, if not contaminated, to the prospective landowner's or the environmental professional's " actual knowledge" of differences between the purchase price and the value of the property. In addition, the ASTM E1527 standard could be read to limit the requirement to the environmental professional's actual knowledge. The statute places the burden of the requirement on the prospective landowner.

Notwithstanding any differences in the interpretation of the statutory requirement, EPA supports ASTM International's efforts to update the E1527 standard to ensure its compliance with the statute and the federal regulation. The ASTM committee tasked with updating the E1527 standard revised the standard's requirement to consider the relationship between the purchase price and the value of the property, assuming it is not contaminated. The committee's intent is to ensure that the standard is compliant with EPA's interpretation of the statute.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM 754 International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 13 Excerpt Text: V. THE NATIONAL TECHNOLOGY TRANSFERAND ADVANCEMENT ACT REQUIRES ADOPTION OF ASTM E1527 00 The National Technology Transfer and Advancement Act, 15 U. S. C. § 272, requires EPA to use existing industry consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. EPA has recognized that it must show that ASTM E1527 00 is inconsistent with applicable law or must adopt it as the standard for All Appropriate Inquiry. 69 Fed. Reg. At 52574. EPA provides five reasons that it believes make ASTM E1527 inconsistent with the Brownfields Revitalization Act:

1) ASTM E1527 does not provide for interviews of past owners, operators, and occupants of a facility.

2) ASTM E1527 limits identification of past uses and occupancies to " obvious" uses, and ASTM E1527 provides that a search must extend back at least to 1940 even if the first obvious use is after that date.

3) ASTM E1527 does not require visual inspections of adjoining properties.

4) ASTM E1527 limits the consideration of the relationship of the purchase price to the value of the property to " actual knowledge" that the price was significantly below market value.

5) ASTM E1527 limits the scope of searches for recorded environmental cleanup liens to recorded land title records.

See 69 Fed. Reg. At 52574 75.

We believe that we have demonstrated in section IV( D)( iv) supra that reason two does not disqualify ASTM E1527 and in section IV( D)( i) that reason four does not disqualify it either. We explain below why we believe that reasons one, three, and five do not disqualify ASTM E1527 00 and we therefore urge EPA to implement the National Technology Transfer Act by adopting ASTM E1527 00. For the foregoing reasons we request that EPA withdraw the proposed rule, and instead propose ASTM E1527 00 as the standard for All Appropriate Inquiry. 755 Response: EPA is not convinced by the commenter's arguments. We continue to assert that the ASTM E1527 2000 standard is not compliant with the statutory criteria for all appropriate inquiries. As discussed in the preamble to the proposed rule, prior to the development of the proposed rule, EPA evaluated the ASTM E1527 2000 standard against the criteria for the federal standard provided by Congress in the Small Business Liability Relief and Brownfields Revitalization Act and determined that the ASTM standard was inconsistent with applicable law.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM International standard and working with the ASTM E50 subcommittee to update the E1527 standard are compliant with the NTTAA.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 14 Excerpt Text: To minimize disruption for the many users of the ASTM environmental assessment standards that predate the Brownfields law and this proposed rule, we strongly urge EPA to permit the use of ASTM El 527 and E 2247, once updated to conform to the Brownfields law, as acceptable alternatives to the AAI rule.

Response: Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental 756 Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM International standard and supporting the ASTM E50 subcommittee in its efforts to update the E1527 standard are compliant with the NTTAA.

EPA is aware that ASTM International plans to update the E2247 standard. If ASTM International updates this standard to comply with the statutory criteria of all appropriate inquiries and requests that EPA recognize the standard as compliant with the statute and the federal regulations for all appropriate inquiries, EPA will respond to such a request and will work with ASTM International as necessary and appropriate to facilitate any necessary revisions to the standard.

Commenter Organization Name: CCLR Comment Number: 0415 Excerpt Number: 4 Excerpt Text: The National Technology Transfer and Advancement Act, 15 U. S. C. § 272, requires EPA to use existing industry consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. EPA has recognized that it must show that ASTM E1527 00 is inconsistent with applicable law or must adopt it as the standard for All Appropriate Inquiry. 69 Fed. Reg. At 52574.

EPA considered using ASTM E1527 00 but decided that five factors prevented its adoption. We suggest that upon closer consideration, these factors do not prevent adoption of ASTM E1527 00 and that ASTM E1527 00 is fully consistent with the Brownfields Amendments. These five factors are summarized and analyzed below in turn. See 69 Fed. Reg. At 52575.

1) ASTM E1527 limits identification of past uses and occupancies to " obvious" uses, and it provides that a search must extend back at least to 1940, even if the first obvious use is after that date. EPA concluded that the Brownfields Amendments do not permit these limitations.

 Limits for Identification of Past Uses and Occupancies EPA concludes that ASTM E1527' s treatment of historical sources does not comply with the Brownfields Revitalization Act because " ASTM E1527 2000 requires identification of all obvious uses of the property from the present, back to the property's obvious first developed use or back to 1940, whichever is earlier." 69 Fed. Reg. at 52575. EPA reasons that " Congress did not qualify the review to obvious uses, and did not give an alternate date regarding the review." Id. The preamble further explains that the environmental professional must " document the ownership and use of the property for a period of time as far back in the history of the property as it can be shown that the property contained structures, or from the time the property was first 757 used for residential, agricultural, commercial, industrial, or government purposes." Id. at 52561.

We think that EPA puts the cart before the horse, and that its reading of the statute's requirement of historical research to include non obvious uses centuries back in time is not workable. The Brownfields Amendments include a historical source criteria that provides for review of historical sources " to determine previous uses and occupancies of the real property since the property was first developed." 42 U. S. C. § 9601( 35)( B)( iii)( III). EPA's conclusion that the statutory " previous uses and occupancies" criteria cannot be interpreted to mean " obvious" uses and occupancies overlooks that this criteria is to be implemented by EPA in accordance with " customary standards and practices," 42 U. S. C. § 9601 ( 35)( B)( i)( I), and that by EPA's own reckoning, customary practices do limit the identification of previous uses to " obvious" uses. To require identification of all uses and occupancies ( including the first agricultural use), all the way back in time as EPA's overly literal reading of the criteria would, would require a nearly unlimited resource for historical data that is frequently unavailable. There is no system in place designed to capture all of this information. Interpreting the Brownfields Revitalization Act to require prospective purchasers to spend an unlimited amount of time in research of possibly unavailable source material in order to obtain liability protection. The purpose of the legislation is to protect purchasers from liability, and this requirement would clearly produce a result that could not have been intended by Congress. ASTM's alternative date of 1940 only applies if it is earlier than the first developed use so it is more stringent than the criteria provided by Congress and thus no bar to adoption.

EPA apparently recognizes the problem of historical searches spanning centuries, because the proposed rule includes the qualification " the environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records." Proposed § 312.24. This provision, however, contradicts EPA's reasoning for rejecting ASTM E1527 and contradicts the explanation of this section provided by the preamble. It also does not address the problem of being able to identify all uses ( as opposed to obvious uses) and occupancies. This requirement, too, is " performance based," so any records of non obvious uses earlier than the date actually searched to by the environmental professional may be used as a pretext for CERCLA plaintiffs seeking to pierce liability protection.

We urge EPA to reconsider, and we offer herein suggestions that provide, with minimal revision, a form of ASTM E1527 00 § 7.3 that does comply with the Brownfields Amendments. We also believe that a more workable, and yet responsible, interpretation of the " historical use" requirement of the statute considered in the administrative record of this rulemaking is ASTM E1527' s provision for searches back to the property's " obvious first developed use." We also believe that the checklist approach of ASTM E1527 00 § 7.3, which provides a purchaser with clarity about when he has reached the end of his All Appropriate Inquiry task is a far more reasonable approach to historical use considered in this administrative record: " Whatever history of previous uses is derived from checking the standard historical sources specified [ herein] shall be deemed sufficient historical use information to comply with this practice." Id. We believe that an open ended " performance based" rule will inevitably lead to courtroom second guessing. 758 2) EPA concluded that ASTM E1527 does not require visual inspections of adjoining properties and therefore does not comply with the Brownfields Amendments.

 Visual Inspections of Adjoining Properties The Criteria provided by Congress in the Brownfields Amendments include " Visual inspections of the facility and of adjoining properties." ASTM E1527 00 § 8 " Site Reconnaissance" provides that " To the extent that current uses of adjoining properties are visually and/ or physically observed on the site visit. . . they shall be identified in the report, and current uses so identified shall be described." ASTM E1527 00 § <IP_ADDRESS>. Visual inspections of adjoining properties are, therefore included in ASTM E1527. In the proposed rule, EPA allowed visual inspections of adjacent properties to be fulfilled by inspection of aerial photographs. Proposed § 312.27( a)( 2). Review of aerial photographs showing the subject property and adjacent properties is already customary practice under ASTM E1527 00 § <IP_ADDRESS>. EPA recognizes that on site access to adjacent properties is not required and that visual inspection from the subject property or public right of way may not yield an entire view of the adjacent property. We hope that, upon reconsideration, EPA will agree that existing ASTM practice and the wording of ASTM section <IP_ADDRESS> fulfills the statutory criteria of including visual inspections of adjoining properties.

If EPA wishes to proceed with greater caution, it could change the word " that" to " practicable" and change the word " are" to the words " shall be" in the above quoted sentence from ASTM section <IP_ADDRESS>. We believe this serves the intended purpose without imposing undue burden on the brownfield redeveloper.

3) EPA concluded that ASTM E1527 does not provide for interviews of past owners, operators, and occupants of a facility.

 Interviews with Past Owners, Operators, and Occupants Proposed § 312.23 provides that the " inquiry of the environmental professional must include interviewing the current owner and occupant of the subject property, and further that "[ t] he inquiry of the environmental professional should include, to the extent necessary to achieve the objectives and performance factors. . . interviewing one or more of the following [ including past owners, occupants, or operators]." The new rule, then, makes a distinction between interviewing current owners, which is mandatory, and interviewing past owners, which is discretionary within the framework of the new rule. The environmental professional might consult sources other than past owners to obtain similar information to that which would be obtained if he interviewed them. Before moving on to show that ASTM E1527 also provides for interviewing past owners in a similar discretionary way within its framework, we would suggest that obtaining useful information through interviewing past owners is unlikely. Past owners have no incentive for disclosing that hazardous waste was handled, stored, or disposed of while they owned the property. To do so would expose them to CERCLA liability as a responsible party. Current owners, on the other hand, presumably are interested answering because they want to sell the property. Withholding information that could affect the value of the property in the context of a sale would expose them to contract and tort liability, so there is reason to believe that their 759 answers will be truthful. It should be noted that ASTM E1527 includes interviews with past owners within the meaning of the Brownfields Amendments.

ASTM E1527 00 § 3.3.25 defines " other historical sources" to include " any source or sources. . . that are credible to a reasonable person and that identify past uses of the property." " Any source" includes interviewing past owners. The purpose of consulting historical sources is to identify " recognized environmental conditions." ASTM E1527 00 § 7.3.1, and the environmental professional may consult " other historical sources" to satisfy this requirement. ASTM E1527 00 § <IP_ADDRESS>. Such sources include " personal knowledge" of individuals. ASTM E1527 00 § 3.3.25. ASTM E1527 therefore already includes interviewing past owners as discretionary within its framework and complies with the statutory criteria to " include" interviews with " past and present owners." 42 U. S. C. § 9601 ( 35)( B)( iii).

If EPA's mandate was to " clarify the obligations" of prospective purchasers, we recommend adopting ASTM E1527 00 verbatim. Since Congress did specify past owners, EPA could add the clarifying words " past or present" before the words " property owner" in the last sentence of ASTM E1527 § 3.3.25 to provide sufficiently for this concern.

4) ASTM E1527 limits the consideration of the relationship of the purchase price to the value of the property to " actual knowledge" that the price was significantly below market value. EPA concluded that this does not comply with the Brownfield Amendments.

 Relationship of Purchase Price to Value of Property Proposed § 312.29 requires that purchasers " must consider whether the purchase price of the subject property reasonably reflects the fair market value of the property, if the property were not contaminated." With this requirement in place, failure to commission a valuation analysis of the property would expose prospective purchasers to subsequent claims that the purchase price was below market and should have alerted the purchaser to the presence of contamination. Although the preamble states at page 52567 that a formal appraisal is not necessary, it states that the intent is to determine if the " price paid for the property is reflective of its market value," and may be accomplished by retaining a " real estate expert" to conduct a " comparability analysis." Given the potential exposure to second guessing, prudent purchasers will probably commission appraisals, and in any event, it is not likely that the non appraisal market valuation envisioned by EPA will differ much in scope or cost from a formal appraisal. Therefore, the cost of an appraisal should be included in the additional costs associated with the rule if this section is to be retained.

Prices of commercial real estate fluctuate for any number of reasons and we think purchasers will be highly resistant to any requirement that forces them to explain why a particular price was appropriate in a particular transaction. It is also often difficult to explain significant inconsistencies in the sale prices of apparently comparable properties that have no environmental conditions of concern. Every source we have consulted to date has agreed that this valuation requirement is entirely new to environmental site assessment and is not consistent with existing generally accepted good commercial practice. We conducted dozens of conversations with 760 market participants and reviewed numerous published sources that have been disseminated in response to this proposed rule. See, e. g., Latham & Watkins, Client Alert All Appropriate Inquiry (" Client Alert"), October 4, 2004 at 3, available at http:// www. lw. com ( noting that the proposed AAI rule will force purchasers to conduct a " much more extensive investigation, including for the first time a property valuation analysis"). We hope you will reconsider the extent to which this new valuation requirement is inconsistent with customary practice, imposes substantial costs, and may cause substantial impediment to the successful completion of market transactions.

On the other hand, we think ASTM E1527 00 does comply with the Brownfields Amendments. The relevant statutory criteria is "[ t] he relationship of the purchase price to the value of the property, if the property was not contaminated." 42 U. S. C. § 9601( iii)( VIII). This statutory criteria has been a part of All Appropriate Inquiry since 1986. See Pub. L. No. 99 499, 100 Stat 613 ( SARA Amendments) ( 1986). ASTM E1527 00, § 5.4, the " actual knowledge" requirement regarding the relationship of the purchase price to the value of the property if the property was not contaminated, was developed in direct response to the statutory criteria cited by EPA. See ASTM E1527 00, § X. 1.2.4.

The Brownfield Amendments' mandate is to promulgate a regulation " to carry out all appropriate inquiries" in accordance with " good commercial and customary standards and practices." 42 U. S. C. § 9601( B). All parties concerned with this rule, including EPA, have agreed that ASTM E1527 00 represents current good commercial and customary standards and practices. Therefore, by definition and as a matter of law, ASTM's limitation of the purchase price requirement to " actual knowledge" satisfies the statutory criteria. In light of the arguments presented here, we hope you will reconsider and agree with us that ASTM E1527 does satisfy the " relationship of the purchase price to the value" requirement.

5) ASTM E1527 limits the scope of searches for recorded environmental cleanup liens to recorded land title records. EPA concluded that this limitation does not comply with the Brownfields Amendments.

 Recorded Environmental Cleanup Liens The Brownfields Amendments provide that " searches for recorded environmental cleanup liens" shall be one of the criteria used in promulgating the All Appropriate Inquiry regulation. 42 U. S. C. § 9601( 35)( B)( iii)( IV). The language of the statute is very clear: recorded liens are to be searched. California and all other states have recording acts that specify a centralized location ( usually one in each county the county recorder's office) where instruments may be validly recorded.

ASTM E1527 00 requires searches for liens recorded in the " place where land title records are, by law or custom, recorded for the local jurisdiction in which the property is located." ASTM E1527 00 § 7.3.4. This makes sense because, under state law it is the only place where liens can be validly recorded. 761 EPA argues that ASTM E1527 may not be used because " liens may be filed in places other than recorded land title records and therefore, a more comprehensive standard is necessary to match the scope intended by the statute." 69 Fed. Reg. at 52575. However, this is not what the statue requires it says recorded liens. Congress would be unlikely to place the limiting term " recorded" in front of " liens" if it meant to specify liens that were not recorded but were somehow otherwise " filed."

What constitutes a recorded lien is a matter of state law. There is no indication that Congress meant to depart from the long established meaning of " recorded." It would also disrupt longstanding and well established industry practice: if you want your lien to achieve priority and provide record notice, it is required to record in the county recorders office. EPA's proposed new requirement would upset a centralized and very reliable system for notice of liens. We do not believe that Congress intended this result.

Upon consideration of the information presented here, we hope you will determine that in fact, ASTM E1527 00 satisfies the statutory criteria for cleanup liens and the proposed rule does not.

Response: It is the Agency= s intent to reference applicable and compliant voluntary consensus standards in the final regulation to facilitate implementation of the final regulations and avoid disruption to parties using voluntary consensus standards that are found to be compliant with the federal regulations. However, as explained in the preamble to the proposed rule, EPA determined that the 2000 version of ASTM International's E1527 Phase I Environmental Site Process is not compliant with the statutory criteria for all appropriate inquiries. Section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( ANTTAA@), Public Law No. 104 113, section 12( d) ( 15 U. S. C. 272 note) directs agencies to use technical standards that are developed or adopted by voluntary consensus standards bodies, unless their use would be inconsistent with applicable law or otherwise impractical. Given that EPA determined that the ASTM E1527 2000 standard is inconsistent with applicable law, use of the ASTM standard in its current form is not required by the NTTAA.

EPA is not convinced by the commenter's arguments regarding the consistency of the ASTM standard with the statutory criteria. Particularly in the case of the need to consider the relationship of the purchase price to the value of the property, if it were not contaminated, the mere fact that the commenter believes that ASTM included a related activity in the E1527 standard in response to the 1986 amendments to CERCLA, does not render the standard compliant with the statute. Also, in the case of environmental cleanup liens, EPA disagrees with the commenter's statement that land title records are " under state law  the only place where liens can be validly recorded." Such liens may be included as part of the chain of title documents or may be recorded in some other manner or format by state or local government agencies. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and 762 dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM standard and supporting the ASTM E50 subcommittee in its efforts to update the E1527 standard are compliant with the NTTAA.

With regard to the commenter's suggestion that the final rule should adopt a " checklist approach," ( or an approach not based upon overall objectives and performance factors), the commenter may have misunderstood the statutory requirements that must be met to obtain protection from CERCLA liability. The commenter may have incorrectly assumed that the completion of the all appropriate inquiries investigation is all that is required to obtain liability protection. The conduct of all appropriate inquiries is only one requirement for obtaining the CERCLA liability protections. Prospective landowners must conduct all appropriate inquiries prior to acquiring a property to qualify for protection from CERCLA liability as an innocent landowner, bona fide prospective purchaser or contiguous landowner. However, once a property is acquired, the property owner must comply with all of the other statutory criteria necessary to qualify for the liability protections. In particular, landowners must undertake Areasonable steps@ to address Aon going releases.@ Therefore, the final rule= s objective of identifying conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to a property links appropriately with the statutory criteria requiring the landowner to address such releases to qualify for the liability protections.

Commenter Organization Name: CCLR Comment Number: 0415 Excerpt Number: 6 Excerpt Text: We urge you to seriously reconsider the proposed rule. Fortunately, a solution is easily available, as we have demonstrated through proposing the minor revisions to the ASTM E1527. We hope you will conclude that ASTM E1527 00 should be adopted as the standard for All Appropriate Inquiry.

Response: As stated above, although EPA determined that the ASTM E1527 2000 standard is not fully compliant with the statutory criteria for all appropriate inquiries, ASTM International is revising the standard to address EPA's concerns. EPA supports the efforts of ASTM International's E50 763 committee to revise the E1527 standard to ensure that it will be compliant with the statutory criteria and the final rule.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM standard and supporting the ASTM E50 subcommittee in its efforts to update the E1527 standard are compliant with the NTTAA.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 8 Excerpt Text: The correct name of the ASTM Standard is E 1527 00, not 1527 2000.

9. Save for the definition of Environmental Professional, the ASTM Standard appears to meet or exceed the requirements of All Appropriate Inquiries. By stating ' the all appropriate inquiries regulation potentially will apply to most commercial property transactions', the proposed rule admits that the commercial real estate market will adopt the AAI. The ASTM Standard has been serving this market adequately since 1993 in providing the standard for good customary and commercial practice. To impart the AAI onto this market will result in an unnecessary cost increase and confusion in all areas of the market. I urge the EPA to work with the ASTM in adopting a modified ASTM Standard E 1527 and not to have two ' standards' in the market place.

Response: EPA appreciates the commenter's concerns regarding the widespread use of ASTM International's E1527 2000 standard and the potential for confusion if a compliant ASTM standard is not available for use in conducting all appropriate inquiries once the federal standards are finalized. In fact, EPA supports the efforts of ASTM International and the ASTM E50 committee in their efforts to update the E1527 standard to ensure that the revised standard is compliant with the statutory criteria and the provisions of the final rule. 764 Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM standard and working with the ASTM E50 subcommittee to update the E1527 standard are compliant with the NTTAA.

Commenter Organization Name: Anonymous Comment Number: 0427 Excerpt Number: 2 Excerpt Text: I think there is nothing wrong with the ASTM 1527 Standard, perhaps obvious data like LEINS and CONTROLS could just be added to what has been the standard due diligence for years?

Response: Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA's activities with regard to reviewing and evaluating the ASTM standard and working with the ASTM E50 subcommittee to update the E1527 standard are compliant with the NTTAA.

Commenter Organization Name: Westward Environmental Comment Number: 0429 Excerpt Number: 7 765 Excerpt Text: Our concern is related to the ability and willingness of the client to absorb the additional fees necessary to comply with the requirements in the proposed rule and the need to adopt this rule in lieu of the ASTM E 1527 standard which we believe adequately addresses the client's needs to satisfy the All Appropriate Inquiries needed for the innocent owner defense.

Response: The economic analysis developed for the proposed rule included a task by task comparison of the ASTM standard activities and the activities required by the proposed rule. This analysis resulted in the identification of all incremental activities required as a result of the proposed rule ( those that are over and above the activities required under the ASTM standard). The analysis also included an estimate of the incremental costs associated with the additional activities. The results of these analyses were included, in detail, in the EIA Document included in the docket for the proposed rule and showed that the weighted average incremental cost for complying with the requirements of the proposed rule was relatively low.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: West Berkeley Association Comment Number: 0430 Excerpt Number: 4 Excerpt Text: Our members, from time to time, will engage in commercial real estate transactions going forward. We would prefer that the standard for future transactions also remain as ASTM E1527 00. We find the new rule to be unclear and are uncertain whether it will provide liability protection in future transactions. We also believe it will impose several thousand dollars in additional costs for future transactions. As small entities, our members would very much like to avoid these additional costs as they affect small property owners engaging in small transactions in a disproportionate way.

Response: The preambles to the proposed and final rule explain in detail the statutory requirements necessary to obtain protection from CERCLA liability. Prospective landowners must conduct all 766 appropriate inquiries prior to purchasing a property. Upon the effective date of the final rule, all appropriate inquiries must be conducted in compliance with the provisions of the final rule to obtain protection from CERCLA liability. However, performing all appropriate inquiries in accordance with the regulatory requirements alone is not sufficient to assert the liability protections afforded under CERCLA. Property owners must fully comply with all of the statutory requirements to be afforded the liability protections.

The economic analysis developed for the proposed rule included a task by task comparison of the ASTM standard activities and the activities required by the proposed rule. This analysis resulted in the identification of all incremental activities required as a result of the proposed rule ( those that are over and above the activities required under the ASTM standard). The analysis also included an estimate of the incremental costs associated with the additional activities. The results of these analyses were included, in detail, in the Economic Impact Analysis Document included in the docket for the proposed rule and showed that the weighted average incremental cost for complying with the requirements of the proposed rule was relatively low.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule. 767 6.2 The Agency Should Clarify How the Final AAI Rule Will Relate to the ASTM Standard Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 12 Excerpt Text: Once the AAI final rule is passed and is into effect.... how does that relate to the ASTM standard... which has precedence? What bearing will ASTM have on ESA preparation? Will EPA's AAI be the referenced guidance document for proposals and preparation, or will ASTM revise their format to meet the AAI; and then the ASTM still remain the guidance document by which all ESAs are typically prepared?

4. What happened to the ASTM non scope business risk items? What or how does the AAI require addressing those items such as archaeological finds, radon, indoor air quality( mold), wetlands, etc?

Response: With regard to the use of the ASTM E1527 2000 standard, prior to the development of the proposed rule, EPA determined that the ASTM E1527 2000 standard was inconsistent with applicable law. Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA is not aware of the status of ASTM International's non scope business risk guidance. The commenter should contact ASTM International directly or check ASTM International's website at www. astm. org.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 1 Excerpt Text: The proposed requirements for an all appropriate inquiry report, including the signature requirements for the all appropriate inquires report. 768 The proposed requirements are generally consistent with the current ASTM practice. I do not feel they are self implementing since they lack the detail contained in the ASTM 1527 Standard Practice. Making reference to the applicable industry standard, which is ASTM 1527, could easily solve this.

Response: EPA can only reference an industry standard in the regulation, if the Agency determines that the standard is not inconsistent with the statute and the regulation. EPA determined previously that the ASTM E1527 2000 standard is not consistent with the statutory criteria for all appropriate inquiries.

However, since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: ASTM E50 Committee Comment Number: 0261 Excerpt Number: 1 Excerpt Text: In particular, we offer comments on appropriate references in the final rule to ASTM standards that we believe will satisfy EPA's criteria of being " applicable and compliant voluntary consensus standards." 69 Fed. Reg. 52542, 52555, Section E References.

As you know, the E50.02 Task Group on E1527, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, has been working to update E1527 00 so that it is consistent with the Brownfields Amendments to CERCLA as well as seeking to conform the standard to the proposed EPA rule. The task group is expecting to initiate a revision ballot in the near future and is working toward having the new version approved once EPA has determined what changes, if any, to make to the proposed rule in light of public comments. ASTM and the E50 Executive Subcommittee strongly encourages the EPA to reference the updated E1527 standard following its approval as an acceptable alternative standard for conducting all appropriate inquiries.

As EPA has correctly noted, the National Technology Transfer and Advancement Act ( NTTAA), 769 directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. See 69 Fed. Reg. at 52574. So long as the updated E1527 complies with the new statutory requirements and is generally consistent with the final All Appropriate Inquiry Rule, there would be no basis for EPA to conclude that referencing the E1527 standard " would be inconsistent with applicable law or otherwise impractical." We therefore urge the EPA to reference ASTM E1527 in the final rule.

In addition, the E50.02 Task Group responsible for E2247 02, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property has closely monitored the activities of the E1527 Task Group and intends to incorporate the appropriate revisions into the E2247 standard so that it will comply with the new statutory requirements and be consistent with the final All Appropriate Inquiries Rule. We therefore urge the EPA to reference ASTM E2247 in the final rule.

Response: As the commenter points out, since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a fiveyear cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA welcomes ASTM International, as well as any other standards developing organization, to submit additional applicable voluntary consensus standards to the Agency for review, including ASTM's E2247 02, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property. EPA will review ASTM International= s revised standard against the statutory criteria and the requirements included in the final rule. If EPA determines that an updated ASTM E2247 standard is consistent with the statutory criteria ( CERCLA ' 101( 35)( B)( iii)) for all appropriate inquiries and not inconsistent with the provisions of the final rule ( or otherwise impractical), then EPA will propose to amend the final rule and incorporate by reference the updated standard.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 12 Excerpt Text: The proposed rule is silent as to how a promulgation date would be handled. 770 Comment: ENSR recommends that a promulgation date 90 days from rule publication be used to allow a grace period between publication of the final rule and its final implementation. Alternatively, a grace period of 90 days from final rule publication for reports meeting ASTM 1527 00 ( the current default standard) could be allowed. Either would allow for studies that are underway under existing standards to be completed and considered to meet AAI, without having to revise them to meet the new standards in mid course, resulting in project delays, and cost changes to the client.

Response: The effective date of the final rule is one year following the date of publication of the rule in the Federal Register. This is much longer than the 90 days proposed by the commenter. EPA believes that allowing for a year between publication of the final rule and the effective date will provide adequate public notice and " would allow for studies that are underway under existing standards to be completed and considered to meet AAI, without having to revise them to meet the new standards in mid course, resulting in project delays, and cost changes to the client."

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 3 Excerpt Text: ASTM E1527 2000 STANDARD VS. PROPOSED AAI STANDARDS1)

The proposed standards emphasize that the current ASTM E1527 2000 standard does not comply with the Brownfields Amendments. However, the rule preamble does not indicate why E1527 2000 doesn't meet the new requirements of the Brownfields Amendments or identify specific citations in the Amendments to explain why E1527 2000 would not comply. FAA would like EPA to include more discussion of why E1527 2000 was not adopted outright, to identify and discuss the clauses in the Brownfields Amendments that E1527 2000 does not meet, and to explain why it doesn't meet them.

Response: The preamble to the proposed rule ( at 69 FR 52574   75) explains the reasons for EPA's determination that the ASTM E1527 2000 standard is not consistent with the CERCLA statute, as amended by the Brownfields Amendments. As part of the explanation, EPA provides specific citations to CERCLA.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 2 Excerpt Text: As EPA knows, the prevalent environmental site assessment standard in use for the past decade is the ASTM Phase I standard known as E1527[ Footnote: The standard is officially known as the 771 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

Congress recognized its wide acceptance in the marketplace by designating the 1997 version of this standard as the interim assessment standard to achieve CERCLA liability protections for property acquisitions from May 31, 1997, until EPA's AAI regulation becomes effective. CERCLA § 101( 35)( B)( iv)( II); see 69 Fed. Reg. at 52545. Since the 1997 version of El 527 had been superseded by the 2000 version by the time Congress passed the Brownfields law, EPA wisely clarified what appeared to be a congressional scrivener's error by recognizing both versions of E1527 as acceptable interim standards. 68 Fed. Reg. 24888 ( May 9, 2003).

US WAG members, like most of the regulated community segment that engages in site assessments for the purpose of achieving CERCLA liability protections, have successfully used ASTM El 527 for many years, are thoroughly familiar with its provisions, and in the spirit of " if it isn't broke, don't fix it", believe that EPA should promulgate an AAI rule that hews as closely to the El527 standards as is legally permissible. We acknowledge that the Brownfields law prescribes requirements that are not in the 2000 version of El 527. However, as we explain later in these comments, we believe EPA has overstated the extent to which the ASTM standard falls short of the new statutory requirements. See 69 Fed. Reg. at 52574 75.

Nevertheless, US WAG is pleased that EPA has actively participated in the ASTM task group process by which ASTM expects to update the El 527 standard and to bring it into conformity with the Brownfields law. Similarly, ASTM is in the process of updating its Phase I standard for forestland and rural property, known as ASTM E2247 02 [ Footnote: This standard is officially known as Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process for Forestland or Rural Property.]. We strongly urge EPA upon completion of this process to reference the amended El 527 and E2247 standards in the final AAI rule as acceptable alternatives to the EPA rule for conducting AAI to qualify for CERCLA liability protections [ Footnote: A recent example of EPA regulations in which the Agency encouraged the regulated community to look to industry standards in implementing the Agency's program is found in the 2002 amendments to the Oil Pollution Prevention and Response Regulations, popularly known as the SPCC rules. See 67 Fed. Reg. 47042, 47057 58 ( July 17, 2002).].

Response: As the commenter points out, since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a fiveyear cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the 772 ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA welcomes ASTM International, as well as any other standards developing organization, to submit additional applicable voluntary consensus standards to the Agency for review, including ASTM International's E2247 02, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property. EPA will review ASTM International= s revised standard against the statutory criteria and the requirements included in the final rule. If EPA determines that an updated ASTM E2247 standard is compliant with the statutory criteria ( CERCLA ' 101( 35)( B)( iii)) for all appropriate inquiries and not inconsistent with the provisions of the final rule ( or otherwise impractical), then EPA will propose to amend the final rule and incorporate by reference the updated standard.

Commenter Organization Name: Thornhill, James Comment Number: 0414 Excerpt Number: 4 Excerpt Text: The effective date of the regulations should not adversely impact binding contracts for the purchase of real property or with environmental consultants to perform ASTM Standard Phase I's during the period such Phase I's are valid. The implementation of the regulation could have an adverse impact on current transactions if the effective date of the regulations is not sufficiently delayed after the final regulations are published or a savings provision is not included. Currently purchasers used ASTM Standard Practice E 1527 97 or E 1527 00 to meet the all appropriate inquires requirement for defenses under CERCLA. Both of standards provide for a Phase I rendered following such standards to be valid for 180 days. Anyone who has contracted for or received an ASTM standard Phase I prior to the publication date of the final rule should be permitted to close on the purchase of a property during the time period that the Phase I remains valid in accordance with such standard. If EPA does not provide a savings provision in this manner, it could have a dramatic impact on ongoing transactions. For example, assume that the final rule has not yet been published and a purchaser enters into a contract for purchase of a property on February 1, 2005 with a 60 day due diligence and a closing date of September 1 to allow for rezoning. The purchaser may obtain an ASTM Standard Phase I dated April 1, 2005, which would still be valid following the standard for a September 1st closing. If the final rule is published on April 15, 2005 with an effective date of July 15th, it would be well before the scheduled closing date of September 1st and after the purchaser's due diligence period has passed under the contract. In such case, the purchaser would have paid for the ASTM standard Phase I and have no rights to perform the additional necessary due diligence to meet the all appropriate inquiries standard. There can also be circumstances where a purchaser has entered into a contract with a Consultant to complete an ASTM standard Phase I on one or more properties, but has not yet entered into a binding purchase contract for the property or properties. Many times purchases occur where the purchase contract is signed and the closing occurs at the same time, especially when real property is included in a larger corporate transaction. These types of transactions must also be considered in determining how the rule becomes effective.

Response: 773 The effective date of the final rule is one year following the date of publication of the rule in the Federal Register. EPA believes that allowing for a year between publication of the final rule and the effective date will provide adequate public notice and would allow for site assessments that are underway under the existing interim standards to be completed and considered to meet the provisions of the final rule without having to revise them to meet the new standards in midcourse

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 9 Excerpt Text: USEPA does not address in either the preamble or the AAI Rule how the new rule will be put into effect. To avoid gaps, it will be critical that the effective date for the AAI Rule allow adequate time for property transactions which commenced AAI using the ASTM standard prior to the new AAI Rule to close. Moreover, Users will have to become familiar with the new requirements. It will take time for institutional Users to confirm that their EPs' qualifications comply with the new AAI Rule and to qualify and retain additional EPs, if necessary. For all these reasons, we suggest that the AAI Rule go into effect at least one ( 1) year after the final rule is promulgated.

Response: The effective date of the final rule is one year following the date of publication of the rule in the Federal Register. EPA believes that allowing for a year between publication of the final rule and the effective date will provide adequate public notice and would allow for site assessments that are underway under the existing interim standards to be completed and considered to meet the standards of the final rule, without having to revise them to meet the new standards in midcourse This also will provide adequate time for property owners to familiarize themselves with the rule and confirm the qualifications of their environmental professionals.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 8 Excerpt Text: Despite EPA's development of a standard for AAI, ASTM's practice will continue to serve an important role in the industry. EPA's definition leaves much to the discretion of the EP. ASTM's practice will continue to provide a safe harbor to minimize consultant liability and avoid groundup recreation of the scope of work for every assignment.

As a point of clarification, the examples cited in the AAI pre amble outlining the areas where the 1527 97/ 1527 00 does not meet the intent of the legislation do not appear to be completely accurate:

The alternate date of 1940 required under the 1527 97 and 1527 00 is more stringent than the 774 proposed rule. The legislation, as well as the 1527, requires review of historical sources to determine first developed use. However, the 1527 exceeds AAI in that a property that is currently undeveloped, or was recently developed, must be researched back to at least 1940 even if the property has been undeveloped for that entire period.

The 1527 meets the intent of the legislation in mandating visual inspections of adjoining properties ( Section <IP_ADDRESS>), and exceeds the legislation by requiring the identification of property uses beyond adjoining properties if, in the judgment of the EP the uses are likely to indicate recognized environmental conditions on the subject site ( section 8.1.5). Additionally, historical uses of adjoining properties " shall be described in the report if they are likely to indicate recognized environmental conditions in connection with the adjoining properties or the property."

Response: It is the Agency= s intent to reference applicable and compliant voluntary consensus standards in the final regulation to facilitate implementation of the final regulations and avoid disruption to parties using voluntary consensus standards that are found to be fully compliant with the federal regulations. However, as explained in the preamble to the proposed rule, EPA determined that the 2000 version of ASTM's E1527 Phase I Environmental Site Assessment Process is not consistent with the statutory criteria for all appropriate inquiries. Section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( ANTTAA@), Public Law No. 104 113, section 12( d) ( 15 U. S. C. 272 note) directs agencies to use technical standards that are developed or adopted by voluntary consensus standards bodies, unless their use would be inconsistent with applicable law or otherwise impractical. Given that EPA determined that the ASTM E1527 2000 standard is inconsistent with applicable law, use of the ASTM E1527 2000 standard is not consistent with statutory requirements.

EPA is not convinced by the commenter's arguments regarding the consistency of the ASTM standard with the statutory criteria. Particularly in the case of the need to consider the relationship of the purchase price to the value of the property, if it were not contaminated, the mere fact that the commenter believes that ASTM International included a related activity in the E1527 standard in response to the 1986 amends to CERCLA, does not render the standard compliant with the statute. Also, in the case of environmental cleanup liens, EPA disagrees with the commenter's statement that land title records are " under state law  the only place where liens can be validly recorded." Such liens may be included as part of the chain of title documents or may be recorded in some other manner or format by state or local government agencies. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located.

Since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that 775 the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

EPA is confident that in the near future, an updated ASTM E1527 standard will be available for use in complying with the federal regulations for all appropriate inquiries. EPA's activities with regard to reviewing and evaluating the ASTM standard and working with the ASTM E50 subcommittee to update the E1527 standard are compliant with the NTTAA.

Commenter Organization Name: West Berkeley Association Comment Number: 0430 Excerpt Number: 3 Excerpt Text: At a minimum, we request that EPA amend the text of the proposed regulation as follows at § 312.21:

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

( 1) Only Ppersons who purchased property after the effective date of this part and are seeking to qualify for:

We think you will agree that EPA might clarify existing law as it applies to past transactions by restating good commercial practice as it has existed in the past, but it may not retroactively apply new requirements. If it is correct that EPA only intends the new rule to affect persons who purchase property after the effective date of the rule, we see no reason why you would not agree to make the change that we suggest.

We think this change is important because the Brownfield Amendments provide interim standards that are retroactive and state that these interim standards remain in effect " until the Administrator promulgates the regulations [ for AAI]." This would lead the average reader to believe that the new AAI regulations will be retroactive. We are also concerned because in several places in the text of the new rule and in the explanatory passages provided by EPA it states that: " Today's proposed rule applies to any person who may seek the landowner liability protections of CERCLA as an innocent owner, contiguous property owner, or bona fide prospective purchaser." A plain reading of this passage would be that " any person" means any person, whether they bought property in the past or buy it in the future.

Response: The point made by the commenter is addressed by establishing an effective date for the final rule. The effective date of the final rule is one year following the date of publication of the rule in the Federal Register. EPA believes that allowing for a year between publication of the final 776 rule and the effective date will provide adequate public notice and would allow for site assessments that are underway under the existing interim standards to be completed and considered to meet the provisions of the final rule, without having to revise them to meet the new standards in mid course. Persons who bought property prior to the effective date of the final rule will not be affected by the final rule. The requirements of the final rule affect only future purchases in that a property owner must comply with the provisions prior to the date of acquiring the property. 777 6.3 The Agency Should Clarify whether the CERCLA Liability Protections Apply if the State Government Acquires the Property Amicably by Agreement in Lieu of Eminent Domain Commenter Organization Name: Patel Comment Number: 0115 Excerpt Number: 1 Excerpt Text: As noted in the last paragraph of Section III. A. of the Supplementary information, the Proposed Rule does not affect the existing CERCLA liability protections for state governments that acquire ownership of property in their functions as sovereigns pursuant to eminent domain. However, it is unclear whether the liability protections pursuant to CERCLA Sections 101( 2)( D) and 101( 35){ A)( ii) apply where a state government acquires property amicably by agreement in lieu of eminent domain.

It would be neither feasible nor cost effective for a state government to apply the standards in the proposed rule to every property acquired as part of a large scale project, such as a federally funded highway construction project. The standards would also be duplicative, in many instances, in light of other state and federal requirements such as the requirements of the National Environmental Policy Act of 1969, This could place state highway departments in the unfortunate position of having to choose between forgoing CERCLA liability protection or wasting public dollars by either acquiring all property for a highway construction project through unnecessary eminent domain proceedings or by conducting highly expensive and potentially duplicative environmental evaluations.

Accordingly, the Pennsylvania Department of Transportation respectfully requests that the EPA either clarify that the liability protections pursuant to CERCLA Sections 101( 2)( D) and 101( 35)( A)( ii) apply even where the state government acquires the property amicably by agreement in lieu of eminent domain or that the EPA amend the Proposed Rule to provide an exception that would allow state governments to meet the standards and practices for all appropriate inquiries for large scale projects by employing the existing ASTM standards and compliance with other state and Federal requirements.

Response: The final rule setting federal standards for the conduct of all appropriate inquiries does not affect in any way the CERCLA liability provisions or liability protections. In fact, the statutory liability protections cited by the commenter are outside the scope of the final rule. The final rule merely sets forth requirements for complying with one condition for obtaining protection from CERCLA liability.

Although it may be burdensome or costly for state and local governments to comply with the provisions of the rule in cases where they are acquiring large parcels of land, nothing in the CERCLA statute authorizes EPA to exempt state and local governments from the requirements of the final rule. 778 With regard to the use of the ASTM E1527 standard, since publication of the proposed rule, ASTM International and its committee responsible for the development of the ASTM E1527 Phase I Environmental Site Assessment Process reviewed and dated the A2000" version of the E1527 standard to address the differences between the ASTM E1527 standard and the criteria established by Congress in the Brownfields Amendments to CERCLA. These activities were conducted within the normal review and updating process that ASTM International undertakes for each standard over a five year cycle. EPA determined that the updated standard is compliant with the statutory criteria and consistent with the final rule. Therefore, in the final rule, EPA is referencing the standards and practices developed by ASTM International and known as Standard E1527 05 ( entitled " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process)." Persons conducting all appropriate inquiries may use the procedures included in the ASTM E1527 05 standard to conduct all appropriate inquiries in compliance with the final rule.

Commenter Organization Name: ODOT Comment Number: 0244 Excerpt Number: 1 Excerpt Text: We are pleased to submit these comments on behalf of the Ohio Department of Transportation (" ODOT") on the U. S. Environmental Protection Agency's (" EPA") proposed rule for conducting " all appropriate inquiries" under Section 101( 35)( B) of CERCLA. ODOT appreciates the transparent process EPA has used to create the proposed rule. The " negotiated rulemaking" will ensure that EPA's final rule reflects appropriately the concerns of the regulated communities and the general public.