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

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

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

Please see response to comment number 0070, excerpt 2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Response: 69 EPA appreciates your concern regarding the representation of differing perspectives on the Negotiated Rulemaking Committee. In 1982, the Administrative Conference of the United States established criteria and recommendations for using the negotiated rulemaking process that in 1990 was established in the Negotiated Rulemaking Act ( Recommendation 82 4, 1 CFR § 305.82 4 and Recommendation 85 5, 1 CFR § 305.85 5). Among other things, the Administrative Conference recommended that reasonable efforts be made to secure a balanced group of interests on a negotiated rulemaking committee. To this end EPA went to substantial lengths, including hiring an independent convener to identify interested stakeholders and who interviewed over 60 individuals representing potential stakeholders, to ensure that differing stakeholders were afforded an opportunity to participate meaningfully. The Negotiated Rulemaking Committee for the all appropriate inquiries rule was assembled to effectuate the diverse perspectives of stakeholders, or those parties having an interest in or who potentially would be affected by the rulemaking. After EPA went to considerable lengths to identify the spectrum of stakeholders, the Agency published a " Notice of Intent to Negotiate" in the Federal Register on March 6, 2003 ( 68 FR 10675) which identified the Agency's preliminary list of interests and requested public comment on that list of potential interests or stakeholder groups to include in the negotiated rulemaking process. Following publication of this notice, EPA held a public meeting to discuss its intent to negotiate the proposed rule and to provide interested parties with another opportunity to comment on the Agency's preliminary list of committee members. Following the public comment period, and based upon input received in the public comments, EPA added additional stakeholder members to its additional list of potential members and initiated the negotiated rulemaking process.

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

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

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

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

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

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

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

EPA notes that the regulations established today only address the all appropriate inquiries provisions of CERCLA Sections 101( 35)( B)( i)( I) and 101( 35)( B)( ii) and ( iii). Today's rule does not address the requirements of CERCLA Section 101( 35)( B)( i)( II) for what constitutes " reasonable steps."

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

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

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

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

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

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

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

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

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

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

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

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

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

Proposed § 312.20( d) " Objectives" requires that purchasers " seek to identify" a list of conditions indicative of contamination. Standards and Practices for All Appropriate Inquiries, 69 Fed. Reg. 52542, 52577 ( proposed August 26, 2004) ( to be codified at 40 C. F. R. pt 312). Proposed § 312.20( e) " Performance factors" in turn requires that purchasers must seek to gather information that will meet the objectives set out in section d, and must " evaluate the thoroughness and reliability of the information" gathered. If there is " a lack of or inability to obtain information required," 65 Fed. Reg. at 52576, to meet the objectives then the environmental professional must " comment upon the significance of such data gaps with regard to the ability to identify conditions indicative 76 of releases or threatened releases of hazardous substances." Proposed § 312.20 ( f), 69 Fed. Reg. at 52578. Further, if there are data gaps " such that the environmental professional cannot reach an opinion regarding the identification of conditions indicative of releases and threatened releases, such data gaps must be noted in the environmental professional's opinion." Proposed § 312.21, 65 Fed. Reg. at 52578.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The definition of an environmental professional in the final rule includes individuals who hold a Baccalaureate or higher degree from an accredited institution of higher education in engineering or science and have the equivalent of five ( 5) years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries. In addition, individuals with ten years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries qualify as environmental 95 professionals for the purpose of conducting all appropriate inquiries. Individuals with these qualifications most likely will possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property, sufficient to meet the objectives and performance factors included in § § 312.20( e) and ( f) of the final rule.

In addition to the qualifications for environmental professionals mentioned above, EPA is retaining the proposed provision to include within the definition of an environmental professional individuals who are licensed to perform environmental site assessments or all appropriate inquiries by the Federal government ( e. g., the Bureau of Indian Affairs) or under a state or tribal certification program, provided that these individuals also have three years of full time relevant experience. We contend that individuals licensed by state and tribal governments, or by any department or agency within the federal government, to perform all appropriate inquiries or environmental site assessments, should be allowed to qualify as an environmental professional under today's regulation. State and tribal agencies may best determine the qualifications defining individuals who " possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases... to the surface or subsurface of a property, sufficient to meet the rule's objectives and performance factors" within any particular state or tribal jurisdiction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EPA estimates that the impacts of the final rule, on the whole, will not be significant for small entities. We estimate that, for the majority of small entities, the average incremental cost of the final rule relative to conducting an ASTM E1527 2000 Phase I Environmental Site Assessment will be between $ 52 and $ 58. When we annualize the 102 incremental cost of $ 58 per property transaction over ten years at a seven percent discount rate, we estimate that the average annual cost increase per establishment per property transaction will be $ 8. Thus, the cost impact to small entities is estimated to not be significant. A more detailed summary of our analysis of the potential impacts of today's rule to small entities is included in " Economic Impacts Analysis of the Final All Appropriate Inquiries Regulation." This document is included in the docket for today's rule.

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

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

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

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

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

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

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

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

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