Thirdly, placing the over bearing requirement of having an engineer as the ultimate stopgap to all appropriate inquiries could slow down the home building market. If the EPA proposed rule does take affect, then all current land evaluations will have to stop while the services of engineers are sought. Companies will be forced to try to figure out a way to pay for the added cost of more personnel and yet another layer of middle management placed on them by the government that is actually serving to endanger the public health rather than protect it. The only way around this risk is to grandfather all environmental professionals into the provision of the Federal legislation. Even the National Home Builders Association has requested EPA to examine § 312.10( b)( 1)( i iv) if it could be an additional burden on home builders and buyers requiring a Professional Engineer or Professional Geologist. It is important to note that housing starts in the US are expected to fall 7.6% starting in 2005. This regulation will increase this negative impact further. [ Footnote: Industrial Survey: Environmental and Waste Management, ( New York; Standard and Poors, October 7) 29.]

Fourthly, the bill/ rule is discriminatory in nature to other environmental professionals, and will reduce competition among other environmental professions. If competition among the environmental professions is reduced, it will give a select number of engineers the opportunity to fix prices and maintain a monopoly over assessments of environmentally tainted property. Current funding of antitrust regulation enforcement at the Federal level does not take into account antitrust investigation funding needed to police probable abuses that this bill/ rule will enable.

Response: The definition of environmental professional in the final rule is not restricted to engineers.

Please see response to comment number 0225, excerpt 3.

Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 7 Excerpt Text: If enacted in current form, the regulation has a potentially severe impact on education and educational employment ( short term and long term). There are 787 higher education programs that offer environmental science that will be affected by the regulation. On average, 200 students per university will be affected by the regulation over a four year period. This number equates to 50 per year ( freshman through senior) for each college. 293 This estimated number equals 157,400 students, and does not include individuals already employed in the environmental professions ( non engineering/ geology). If you include graduate programs, this number could climb as high as 250,000 students. According to the U. S. Department of Education, median college tuition cost for a four year environmental education degree is about $ 10,000 per year, and can go higher in competitive private universities. Potential tuition lost by universities and colleges due to this regulation are nearly $ 10,000,000,000.

This number is calculated by taking the number of students and multiplying it by the tuition and length of education. This number could be lower in some areas depending on state and residency requirements imposed by the schools. The impacted number could also be significantly higher depending on residency and duration of education ( more that 4 years). It can also be argued that students under this law will be forced to study engineering and/ or geology to become an environmental professional. This action will force students to switch majors of study in 4 year universities. As a result of switched majors, students at these universities will be forced to delay their education by 1 to 2 years depending on the number of science credits that can be applied to an engineering degree. Again, this indirect impact from the regulation will place financial hardship on students and families. Using estimated numbers from the US Department of Education, this cost will exceed $ 2,500,000,000 per year ( 250,000 environmental students times $ 10,000).

This rule will be strongly felt on environmental education. It is estimated that 1250 environmental professors at environmental universities nationwide will have to seek work at other universities or remain unemployed. This estimate is based on one professor for every 200 students. The number of unemployed environmental educators coupled with the number of non engineering environmental students will impact unemployment rates nationwide. This increased number of unemployed non engineering professionals across the United States will be economically harmed by any rise in the consumer price index.

Response: The Agency disagrees with the commenter's assertions. The final rule does not require individuals to become PE's or PG's to qualify as an environmental professional. Please see response to comment number 0225, excerpt 3.

Commenter Organization Name: Gaugler, Earl Comment Number: 0327 Excerpt Number: 2 Excerpt Text: The negative impact from isolating other groups of professionals will ( 1) drive costs up for clients as engineer oversight can be costly ( especially when all they may do is review the work of others and place their PE stamp on the final report), and ( 2) restrict the work of individuals fully qualified to conduct a Phase I assessment and other aspects of environmental inspection. 294 Response: The final rule does not require individuals to become PE's or PG's to qualify as an environmental professional. Please see response to comment number 0225, excerpt 3.

Commenter Organization Name: Baker Petrolite Comment Number: 0352 Excerpt Number: 1 Excerpt Text: Baker Petrolite Corporation ( BPC) is concerned that the proposed definition of environmental professional will impose an unnecessary financial burden on businesses which employ full time environmental staff and occasionally perform Phase I Environmental Site Assessments ( ESAs) on prospective properties for purchase or lease. In some cases, BPC conducts environmental assessments per the All Appropriate Inquiry ( AAI) requirements in order to qualify as a bona fide prospective purchaser or innocent landowner and obtain liability protection under the 2002 amendments to CERCLA ( Small Business Liability Relief and Brownfields Revitalization Act). This proposed rule may force businesses, including BPC, to utilize the services of an external environmental consultant for tasks that have traditionally been handled by qualified environmental staff within the corporation. With regards to the additional cost this will present, BPC requests that EPA consider the following comments and questions.

Response: Please see response to comment number 0225, excerpt 3.

Commenter Organization Name: Kammeraad, Norman Comment Number: 0357 Excerpt Number: 1 Other Sections: NEW  2.1.7  Revise the grandfather clause to allow all individuals currently conducting site assessments to qualify as EPs Excerpt Text: The langauge being used in 312.10 does not provide for Grand fathering of all ready existing individuals who have practiced in the field of environmental assessments for years. If this rule was to take effect, much like the Michigan Act 451, Part 213 QC, CP rules of 1994 which has similar langauge, EPA will forcefully remove the conduct of 1000' s of individuals. This would be a violation of Federal Law U. S. C. A. Const. Amend. 1 Further, there is a requirement to be met by the legislature and Agency in the promulgation and enforcement of legislation which is known as a ? compelling state interest test? that would in turn provide the Agency ( EPA) authorization to eliminate the free exercise of an individual? s conduct. A statutory classification or rule that infringes on a person's exercise of a fundamental right must be justified by a compelling state interest and achieved by narrowly drawn means. Carey v. Population Services Int'l, 431 U. S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 ( 1977); A Compelling State Interest must be truly compelling, " threatening safety or welfare of the state in a clear and present 295 manner", for restriction to survive free exercise challenge under the First Amendment. Thus, only the States have the right to enforce and remove a persons conduct via threat to Health and welfare. Many firms ( including mine) throughout the US, have worked with either SBA, USDA and Brownfields programs either directly or indirectly. To remove their conduct by not providing Grandfatherization rules, is the same as removing their conduct and thus income. Thus, language is needed in Section 312.10 of the AAI rules that also includes them by definition to protect them.

Response: EPA asserts that the Agency has the authority to establish qualifications for persons conducting all appropriate inquiries. The CERCLA statute at section 101( 35)( 2)( B)( ii) includes criteria that EPA must include in the regulations governing federal standards and practices for conducting all appropriate inquiries. One criterium is " the results of an inquiry by an environmental professional."

The final rule recognizes tribal and state licensed P. E. and P. G. s and other such state and tribal government licensing environmental professional programs. Individuals with a state certification or license and three years of experience to be environmental professionals qualify as environmental professionals for the purposes of the all appropriate inquiries rulemaking. However, the rule does not restrict the definition of an environmental professional to these licensed individuals. The definition of an environmental professional also includes individuals who hold a Baccalaureate or higher degree from an accredited institution of higher education in engineering or science and have the equivalent of five ( 5) years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries. In addition, individuals with ten years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries qualify as environmental professionals for the purpose of conducting all appropriate inquiries. Individuals with these qualifications most likely will possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property, sufficient to meet the objectives and performance factors included in § 312.20( e) and ( f).

The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Please also see response to comment number 0225, excerpt 3. 296 Commenter Organization Name: EAA Comment Number: 0366 Excerpt Number: 3 Excerpt Text: Further, from the standpoint of the user, if the current proposed requirements of the EC stand, the availability of the product would be severely impacted. This impact would include the fact that the service providers would be limited on a national level, which would cause a significant increase of price to the user, and a significantly slower process of completion of work and scheduling. Additionally, it is felt that the overall quality of service and product would suffer because of the limited number of service providers being so overextended.

Response: Please also see response to comment number 0225, excerpt 3.

The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 2 Excerpt Text: We ask that the EPA/ Committee consider that the proposal would detrimentally impact the employment and limit opportunities of employees hired to perform AAIs before the regulation came into existence. It appears that the EPA/ Committee is ignoring the ability of employers to select professionals to fill AAI related positions. If the proposed definition is adopted, only 2/ 3 of our staff performing AAIs will meet the definition of environmental professional. Our staff members who perform AAIs were selected based upon individual experiences, education and other salient skills and knowledge. Please keep in mind that it is an employer's obligation to meet the tenets of all appropriate inquiry and employers are liable if they employ individuals who are not capable of performing AAIs.

Response: Please also see response to comment number 0225, excerpt 3. 297 The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 13 Excerpt Text: The Proposed Rule's definition of an " environmental professional" is overly stringent and arbitrary. The qualifications under the Proposed Rule for EPs will in some cases force potential owners to go through the expense of hiring or contracting with a Professional Engineer, or other " qualified" professional under the standard, to conduct AAIs, when current staff may be better qualified and equipped to do so. This will significantly increase the cost of conducting Phase I inquiries, without commensurate benefit.

Response: Please also see response to comment number 0225, excerpt 3.

The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Commenter Organization Name: Dean, Frank Comment Number: 0411 Excerpt Number: 3 Excerpt Text: Due to the arbitrary nature of Section 312.10 and the potential for it to legislate me and many others out of this business, I will be contacting my Attorney to discuss the possibility of litigation if this part of the regulation goes into law as written. As there are approximately 2,000 members of the EAA, I am sure that there will be a number of us tax 298 paying small business owners who could have their businesses ruined by this arbitrary rule and would be interested in pursuing litigation and talking with our Congressmen.

Response: Please also see response to comment number 0225, excerpt 3.

The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens. We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Commenter Organization Name: Young, Richard Comment Number: PM 0207 0001 Excerpt Number: 4 Excerpt Text: Today there are many small consulting firms whose business will be hurt by EPA's proposed rule because they cannot meet the proposed experience and education requirements. Such firms, these small little firms, are the backbone. They really are the backbone of today's business in conducting Phase I and Phase II work for residential and commercial property.

More consulting firms are destined to be hurt financially by the AAI rule. While EPA does not believe that the definition of environmental professional will go beyond the AAI rule, it is destined and, as so many times before, that it will and it will go and be accepted as a definition of an environmental professional in other laws.

As proposed, the AAI rule will drive up the market for consulting engineers and geologists. It will place them on a pedestal of being a specialist who can and will command higher pay for their work. From an economic standpoint it can be viewed as that it can be expected that all salaries on a brownfields project will also rise. The other trades will ask for more money and it will cost more to complete the work.

Very quickly and not boring you with all the details now because we will provide that in written testimony as I say, the total estimated number of environmental professionals nationwide without engineering degrees but practicing in the environmental field is 1,120,584. The total estimated Black professionals in the environmental field not being engineers is 100,853. We go on through also the Hispanic, the Asian, the female and the total minorities who are non engineers practicing in the environmental field now today is 705,968. This will have an impact on them. A total impact on yearly wages which averaged on the way low side of being $ 39,505,223,188.00. 299 By the way, these total environmental professionals, these non engineers practicing in the environmental field, as a percentage of the nation's total employed, is 6.8 thousand. If we are to take and begin leaving them out and being recognized as equals in this field, this will have a dramatic effect on our nation's economy. These numbers, by the way, are not ones that I made up. They are there for you to see from the Bureau of Labor Statistics.

Response: Please also see response to comment number 0225, excerpt 3.

The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

We point out that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional. 300 <IP_ADDRESS> Minimum Requirements for Personnel Working under the Supervision or Responsible Charge of an EP Commenter Organization Name: Morris, Michael Comment Number: 0114 Excerpt Number: 2 Excerpt Text: As an advisor to our local community college that created an environmental engineering program, I am concerned that students who have earned an associate degree will no longer find employment doing site assessments. These students, who have had more formal training in conducting site assessments, will be competing with lower paid clerical level people who work for engineers or geologists that only sign off on the reports. There is no requirement or incentive to have all personnel working on these projects to have some training and experience in enviromental assessments.

Response: EPA disagrees with the commenter. The CERCLA statute provides significant incentives for conducting high quality all appropriate inquiries investigations. To maintain protection against CERCLA liability, property owners must comply with the continuing obligations established in CERCLA. These obligations include taking reasonable steps, stopping on going releases, and not impeding the integrity of institutional controls. It is imperative that a high quality all appropriate inquiries investigation be conducted prior to acquiring a property so that the property owner has accurate information to comply with the required continuing obligations and maintain protection from liability. High caliber investigations will require highly qualified personnel.

In addition, in response to public comments, EPA has made several modifications to the definition of environmental professional in the final rule that will allow additional individuals to qualify as environmental professionals, including individuals without college degrees who have ten years of full time relevant experience. Please see the response to comment number 0225, excerpt 3.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 2 Excerpt Text: The proposed division of responsibilities for conducting all appropriate inquiry.

While the definition for Environmental Professional ( EP) is arguably more restrictive than the current ASTM definition of an EP, the proposed rule requirement that the EP be in responsible charge is less restrictive than the current ASTM practice which requires the EP to conduct the site investigation and interviews. I am concerned that even with the strong recommendation in the preamble that the EP be involved, it is not required and therefore subject to abuse in the marketplace. From my experience as a practicing EP the 301 only two questions most prospective clients ask are: How soon can you do it? How much does it cost? This places market pressure on the EP to do them quickly and keep cost down. One obvious way of controlling cost is to use lower cost personnel who are typically less experienced than the EP. I would like to see some requirement for the person conducting the site visit to have a minimum level of experience and training even if it doesn't rise to the level of qualifying as an EP.

The provision for using non EP's to collect historic information and perform other routine duties as currently allowed in the ASTM practice is acceptable.

Response: Please see response to comment number 0114, excerpt 2.

In today's final rule, the Agency is retaining the recommendation that an individual who qualifies as an environmental professional conduct, or closely oversee the conduct of, the required on site visual inspection of the property. The Agency has concluded that it is would be too burdensome to require a person meeting the definition of an environmental professional to conduct the on site site assessment in all cases.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 8 Excerpt Text: The Band agrees with the proposed language in this section that allows a person who is not an Environmental Professional to assist in the conduct of all appropriate inquiries so long as the conduct is under the supervision of a qualified Environmental Professional.

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

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 9 Excerpt Text: 5) FAA agrees that it is a good idea to allow people who do not meet the definition of an EP to assist with and take part in the conduct of AAI under the supervision of an EP. Response: EPA thanks the commenter for the stated support of the provision of the final rule.

Commenter Organization Name: Foth & Van Dyke Comment Number: 0339 Excerpt Number: 2 Excerpt Text: 302 In addition we support the Proposal's acknowledgement that persons who do not fall, within the definition of " Environmental Professional" can nonetheless assist in the conduct of the " all appropriate inquiries" if such person is under the supervision or responsible charge of a person meeting the definition. We also take this opportunity to endorse the comments submitted by the National Society of Professional Engineers.

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

Commenter Organization Name: CONNOR Comment Number: 0398 Excerpt Number: 2 Excerpt Text:  Environmental Professional ( 5)  please explicitly define " supervision and responsible charge".

Response: Although the Agency is not formally defining the clause in the final rule, EPA offers that the meaning of " supervision or responsible charge" is that the environmental professional will generally be overseeing the performance of all appropriate inquiries activities conducted by all others who are contributing to the all appropriate inquiries investigation.

Commenter Organization Name: Froehlich, R A Comment Number: 0438 Excerpt Number: 2 Excerpt Text: Persons without the extensive environmental background required for recognition as an environmental professional should also be allowed to work on environmental site assessments, but should perform their work under the direction of an environmental professional. When sufficient experience has been achieved, they should be tested to ensure that they have the expertise to perform environmental site assessments under their own direction. Such testing should be required for all environmental professionals under the final regulation, but this level of testing is not included as a requirement in the proposed regulations. Testing is required under both the Asbestos and Lead Based Paint Model Accreditation Plans promulgated by EPA for both inspectors, supervisors and workers, and most would agree that the concerns associated with these narrow environmental issues is much less extensive than the concerns associated with environmental site assessments. Rather than promulgating yet another Model Accreditation Plan, however, I strongly recommend that testing for environmental professionals be performed through the existing ASTM E1929 98 compliant certification programs such as the QEP program. Mere years of experience and education alone are insufficient to demonstrate the needed expertise, and demonstrations of expertise can best be documented through an impartial examination by peers active in the field. 303 Response: In the final rule, the qualifications for meeting the definition of an environmental professional are based upon educational and experience criteria. EPA believes that these minimum qualifications as well as the requirement that an environmental professional possess " sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property sufficient to meet the objectives and performance factors" of the rule ( see 312.10) are sufficient qualifications for qualifying to oversee and conduct all appropriate inquiries investigations without an additional testing requirement. 304 <IP_ADDRESS> The Proposed Rule Does Not Provide Information on the Requirements for Becoming Licensed or Certified by the Federal Government, a State, Tribe, or U. S. Territory to Perform Environmental Inquiries Commenter Organization Name: Tucciarone, L W Comment Number: 0079 Excerpt Number: 1 Excerpt Text: There is no definition of how you become licensed or certified by the federal government, state, etc. to perform environmental inquiries.

Response: The final rule provides that if a federal government department or agency develops a licensing or certification program, the rule will recognize it. Currently, the Bureau of Indian Affairs has a training and certification program for environmental professionals.

Because requirements of individual states and tribes differ, those requirements have not been detailed in this rule. To find out if and how these sovereigns certify environmental professionals you should contact the state or tribal officials directly.

Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 3 Excerpt Text: The definition of an environmental professional includes the usual and customary categories of professional engineers and geologists and adds a person " licensed... to perform environmental inquiries..." No such licensing program exists.

Response: The federal government, a state, tribe, or U. S. territory have authority to certify individuals to perform environmental inquiries if they so choose. We are simply recognizing these sovereigns. The Bureau of Indian Affairs has a training and certification program for environmental professionals.

Commenter Organization Name: IPEP Comment Number: 0266 Excerpt Number: 8 Excerpt Text: Appendix C Examples of State Programs with Designated Environmental Professional Credentialing Requirements The following illustrative programs have been summarized based on information 305 obtained [ and in many cases stated verbatim] from the state specific websites for the designated programs.

DELAWARE The Delaware Department of Natural Resources and Environmental Control ( DNREC) is charged with identifying and remediating hazardous waste sites. To determine whether a firm is capable of performing the selected remedy on behalf of the potentially responsible party, minimum required qualifications have been established in the form of " Policy on Minimum Qualification Requirements for Consultants/ Contractors Performing Work Under the Hazardous Substance Cleanup Act ( Effective 6/ 17/ 94, Revised 12/ 5/ 01). The charge requires specific environmental investigation or remediation be executed by either the Department or, when PRPs are identified and willing, by private environmental consulting/ contracting firms.

Before beginning work, a consultant/ contractor must provide the names and qualifications of all geologist or engineers that will be performing work in each related service category ( e. g., hydrogeological investigations, contaminant fate and transport). In addition to a series of other representations, the consultant/ contractor must also provide information to substantiate that registered professionals will perform the work when and as required under 24 Del. C., Chapters 28 ( for professional engineers) and 36 ( for professional geologists).

However, submittals determined to be complete will undergo review by a team comprised of DNREC Cleanup Program managers and project officers, which either approves or disapproves the consultant/ contractor. Thus, DNREC has established the procedure and criteria ( not publicly available) for making determinations of acceptability under this program, in contrast to using a defined set of criteria established by independent peer review and available for public review, such as ASTM E1929 98.

MASSACHUSETTS The Massachusetts Department of Environmental Protection has implemented the 21E program through a set of regulations known as the Massachusetts Contingency Plan or " MCP." The MCP lays out the state's rules for conducting cleanups of contaminated sites. The MCP requires people who are responsible for cleanups to hire a Licensed Site Professional to manage and/ or oversee the required assessment and cleanup work. Licensed Site Professionals are often referred to as " LSPs." LSPs are scientists or engineers experienced in the assessment and cleanup of oil, gasoline, and hazardous material contamination. They are licensed by an independent state board to manage cleanups and provide formal, written opinions that cleanup work meets the requirements of the MCP.

An LSP is hired by a site owner or other potentially responsible party to oversee the assessment and cleanup activities required to address the contamination. The LSP collects data on conditions at the site, interprets this data, assesses the risks posed by the site to 306 health, safety, public welfare, and the environment, and recommends and oversees necessary cleanup activities. In providing these services, the LSP is responsible for making sure that the formal, written opinions that he or she provides about response actions at a disposal site, and the activities that lead up to these opinions, are consistent with the requirements of the MCP.

At key stages in the cleanup process, these formal, written opinions describing the work that has been completed must be sent to DEP. When a cleanup has been completed, the LSP provides a final opinion stating that the response actions have achieved an outcome that complies with the MCP and protects health, safety, public welfare, and the environment. Only an LSP can sign and stamp these formal opinions.

LSPs are licensed by the Board of Registration of Hazardous Waste Site Cleanup Professionals, common Response: EPA thanks the commenter for the provided information.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 7 Excerpt Text: The Mille Lacs Band recommends that tribal licensing and registration requirements be incorporated into this section, including the applicability of tribal licensing regulations and laws before any activities are undertaken. An aspect of tribal licensing and registration would be the likely addition of a cultural component to the process. Through cultural training for the individual who is not familiar with a tribe, that individual would gain an awareness of tribal values ( including practices and customs) that would make it easier to conduct environmental work within a tribal community. In this manner, environmental needs would be addressed and cultural issues would be respected in the tribal community.

Response: The final rule allows for and recognizes tribal licensing and certification programs for environmental professionals. The final rule also recognizes the Bureau of Indian Affairs licensing and certification programs for environmental professionals.

Commenter Organization Name: Anonymous Comment Number: 0371 Excerpt Number: 4 Excerpt Text: The rule states in 312.10( b)( 2)( I) that a person licensed by the federal government, state or tribal to perform environmental inquires... The EPA should provide a list of acceptable federal, state or tribal licenses that meet this definition 307 Response: EPA does not have a list of such programs and it would be difficult to maintain and update such a list for all states and the entire federal government. We simply note that we will honor individuals certified by the federal government, a state, tribe, or U. S. territory. Certifications must be for the purpose of designating individuals qualified to perform environmental inquiries as defined in ' 312.21.

Commenter Organization Name: McLeod, Jeff Comment Number: 0444 Excerpt Number: 3 Excerpt Text: The rule states in 312.10( b)( 2)( I) that a person licensed by the federal government, state or tribal to perform environmental inquires  The EPA should provide a list of acceptable federal, state or tribal licenses that meet this definition.

Response: EPA does not have a list of such programs and it would be difficult to maintain and update such a list for all states and the entire federal government. We simply note that we will honor individuals certified by the federal government, a state, tribe, or U. S. territory. Certifications must be for the purpose of designating individuals qualified to perform environmental inquiries as defined in ' 312.21. 308 2.2 An EP Should Remain Current in His/ Her Field through Participation in Continuing Education or Other Relevant Activities Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 4 Excerpt Text: Environmental professionals " should remain current in his or her field through participation in continuing education or other activities and should be able to demonstrate such efforts." What happens if the EP doesn't remain current or can't demonstrate such efforts? Are the reports he makes unreliable? Is this grounds to deny innocent landowner protection to the client who hired him.

Response: The final rule retains the requirement that an environmental professional " should remain current in his or her field through participation in continuing education or other activities." However, the final rule does not retain the requirement that environmental professionals " should be able to demonstrate such efforts." The Agency has determined that the demonstration requirement is difficult to define and may place an undue burden on environmental professionals, particularly given that many training programs and conferences may not have an associated certificate or license. The marketplace and ultimately the courts can determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. " Other activities" involves any activity that serves the purpose of keeping practitioners up to date on the latest developments and activities in the industry.

Commenter Organization Name: Diamond, Jason Comment Number: 0251 Excerpt Number: 3 Excerpt Text: I also support the AAI rule's requirements that the EP remain current in his field through continuing education or training, and be able to demonstrate such effort. Relying on professionals who have a high level of education, training, experience, and integrity is the most effective way to deal with the environmental risks that must be evaluated for commercial real estate transactions.

Response: EPA thanks the commenter for the stated support of the provision.

Commenter Organization Name: Kentuckiana Chapter ACHMM Comment Number: 0405 Excerpt Number: 4 309 Excerpt Text: Moreover, because the proposed rule requires " all environmental professionals to remain current in the field of all appropriate inquiries, or environmental site assessments," 69 Fed. Reg. 52553, amending the proposed definition of " environmental professional" to include CHMMs will help EPA in meeting its commitment to high standards since CHMMs must earn Certification Maintenance Points (" CMPs") annually to maintain their certifications.

Response: Please see responses to comment number 0173, excerpt 2. 310 2.2.1 The Agency Should Clarify What Type of Training or Continuing Education Would Satisfy This Requirement Commenter Organization Name: Pike, Kenneth Comment Number: 0117 Excerpt Number: 1 Excerpt Text:  Comments: " Remaining current" could be interpreted as seeking continuing education or professional development courses in the field of AAI or only interpreted as continuing to work as an environmental professional. More than 20 states require that home inspectors be licensed to include specific training and passing a written test. Purchasers and lenders of commercial property have far greater financial exposure than residential purchasers yet no standardized training or licensure requirements exists relative to the performance of AAI/ environmental site assessment by the Environmental Professional. Colleges and universities do not have environmental site assessment in their curricula, consequently the only training is on the job and that training is far from standardized.

 Recommendation: While accumulated work experience is valuable, " remaining current" should include continuing education or professional development courses specific to AAI/ environmental site assessment. Such courses would create open dialogue, sharing of experiences and ideas and encourage a trend toward consistency in the industry. This industry has historically been inconsistent in all aspects of environmental site assessment ( e. g., experience, professional judgement, QA/ QC) and the proposed rule can solve these problems by defining " remaining current" in terms of continuing education or professional development coursework just as is required by many other professions.

Response: Environmental professionals may " remain current" in their field of expertise by taking training and educational courses, attaining conferences and workshops or participating in any other activities that serve the purpose of keeping practitioners up to date on the latest developments and activities in the industry.

Commenter Organization Name: Leech Lake Ojibwe Comment Number: 0125 Excerpt Number: 3 Excerpt Text: Moreover, there is no mandate that an EP remain current in his or her field; rather, the rule imposes a much less rigorous standard by stating only that an EP " should" engage in such activities. To clarify this subsection, EPA should: ( 1) impose a limitation on the time period during which such experience must have been gained; and ( 2) mandate that EPs remain current in their field. These changes will ensure that EPs are competent, upto date in their education and training, and capable of effectively conducting AAIs. 311 Response: The final rule retains the requirement that an environmental professional " should remain current in his or her field through participation in continuing education or other activities." However, the final rule does not retain the requirement that environmental professionals " should be able to demonstrate such efforts." The Agency has determined that the demonstration requirement is difficult to define and may place an undue burden on environmental professionals, particularly given that many training programs and conferences may not have an associated certificate or license. The marketplace and ultimately the courts can determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status.

Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 3 Excerpt Text: 3 Steve Myers EP Definition312.10( c)( 3) What will count as continuing education or ' other activities'? How often or how many will be required? What type of documentation will be required to ' demonstrate such efforts'?

Response: Please see response to comment number 0095, excerpt 4. The Agency expects practitioners to be abreast of the latest developments in the industry. To this end, practitioners should obtain continuing education. While the final rule does not set forth any specific hour requirements, individuals hiring firms or individuals to perform assessments may wish to inquire as to how the firm or individual is acquiring up to date knowledge about assessments. Further, in litigation, a court will ultimately decide if the environmental professional has fulfilled this requirement.

Commenter Organization Name: AIPG Comment Number: 0253 Excerpt Number: 3 Excerpt Text: AIPG also strongly recommends that an annual refresher course be required for the Environmental Professional. Other programs require annual refresher courses to remain current in their fields of practice such as the 8 hour OSHA classes and asbestos training. The proposed Rule only recommends continuing education and most state P. G. licenses don't require any. AIPG has instituted a program for continuing professional development for practitioners.

An annual refresher course would give other individuals who are grandfathered, but who are not CPGs or registered, an opportunity to learn some basic hydrogeology and geologic concepts to which they may not have been exposed previously. 312 Response: Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3).

Commenter Organization Name: Wallace, Ronald Comment Number: 0254 Excerpt Number: 2 Excerpt Text: I also strongly recommend that an annual refresher course be required for the Environmental Professional. Other programs require annual refresher courses to remain current in their fields of practice such as the 8 hour OSHA classes and asbestos training. The proposed Rule only suggests continuing education and most state P. G. licenses don't require any. AIPG is in the process of finalizing the requirement for continuing professional development hours for new CPGs and is in a position to help develop annual testing. The annual refresher course would also give those individuals who are " grandfathered" an opportunity to learn some basic hydrogeology and geologic concepts to which they may not have been exposed previously. This requirement will " raise the bar". Geologists who meet the CPG requirements will meet, and generally exceed, state P. G. requirements for education, experience, and continuing education.

Under these proposals the public will have a means to check on an individual to verify that they are a CPG and are current on educational requirements. Also included is a Code of Ethics which CPG's are required to adhere to as well as a procedure for filing complaints against CPG's. For non CPG's who take the annual refresher course through AIPG, confirmation of their participation would also be available to the public.

Response: Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3).

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 6 Excerpt Text: The Band agrees with the proposed requirement that an Environmental Professional should remain current in his or her field through " continuing education or other activities." However, it is unclear what " other activities" refers to and what constitutes the ability to " demonstrate such efforts." Whether this means regularly updated certifications is unclear, but the Band supports an Environmental Professional staying current with the latest technologies, information, and practices in the field. In the situation where a tribe does license or certify an Environmental Professional, the Band recommends that the same and other similarly situated tribes be authorized to conduct continuing education seminars or classes that would " demonstrate such efforts."

Response: Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3). 313 Tribal continuing education seminars or classes would most likely satisfy the requirement.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 7 Excerpt Text: 3) What will count as continuing education or " other activities" as required by the third provision of the proposed EP definition? How often must an EP participate in this continuing education/ other activities? What type( s) of documentation will EPA require to " demonstrate such efforts"?

Response: Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3).

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 4 Excerpt Text: Proposed Section 312.10( b)( 3): Trainings and continuing education sessions are readily available for topics such as groundwater hydrology, environmental sampling, contaminant transport, and other related courses. However, there are not many trainings or continuing education sessions for environmental professionals to remain current in the field of AAI or environmental site assessments. Environmental professionals can stay current in their field but that may not mean they are specifically taking AAI or environmental site assessment courses. DEQ believes that EPA should clarify this section.

Response: Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3). The intent of the regulation is that environmental professionals remain current in the general field of environmental science, engineering and site assessments and not merely current on the specific all appropriate inquiries requirements.

Commenter Organization Name: Testa, Steve Comment Number: PM 0359 0002 Excerpt Number: 2 Other Sections: MODIFIED  2.1.8  Comments on the proposed minimum requirements Excerpt Text: The second recommendation reflects on annual refresher courses or continuing education. AIPG also strongly recommends that an annual refresher course be required for the Environmental Professional. Other programs require annual refresher courses to remain 314 current in their fields of practice, such as the eight hour OSHA classes and asbestos training. The proposed rule only recommends continuing education, and most state Professional Geologist licenses don't require any. AIPG has instituted a program for continuing professional development for practitioners.

Last, an annual refresher course would give other individuals who are grandfathered, but who are not CPGs or registered, an opportunity to learn more about basic hydrogeology and geologic concepts to which they may not have been exposed previously. Adding also to the importance of this issue is the proliferation of automated, Internet based platforms for creating data summaries and maps of the subject area. These give the erroneous impression of thoroughness to the point of even showing groundwater flow direction and the relative elevation of surrounding sites that have the potential to impact the subject site. These presentations can be misleading and, if used by an unqualified Environmental Professional, may lead to serious oversights with significant consequences. The judgement of a qualified geologist, taking advantage of all available geologic and hydrogeologic information sources, is necessary for this purpose.

Response: EPA thanks the commenter for the stated support of the provision. Please see response to comment numbers 0095 ( excerpt 4) and 0242 ( excerpt 3). 315 2.3 Suggestions for Additional Elements or Revisions of the Proposed Definition Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 Excerpt Number: 1 Excerpt Text: We have reviewed the proposed " All Appropriate Inquiries" standards, and find no significant objections to them. All environmental assessments that we have completed in the past 12 years would generally meet or exceed the proposed specifications. We do offer the following comments and suggestions regarding some of the details of the proposed regulation.

Regarding:

§ 312.10

We believe the qualifications for an " Environmental Professional" should include:

( A) " Hold a current registration or certification accredited by the Council of Engineering and Scientific Specialty Boards that is recognized by a federal, state, tribal, or U. S. territory ( or the Commonwealth of Puerto Rico) agency with jurisdiction over the location of the subject property in lieu of a license to conduct environmental inquiries as defined in § 312.21, and have the equivalent of three ( 3) years of full time relevant experience"

REASON: Many agencies have elected to recognize existing credentials rather that develop their own licensing programs.

( B) " Have an advanced ( Masters or higher) degree from an accredited institution of higher education in a relevant discipline of engineering, environmental science, earth science, physical science, chemical science, or biological/ health science and the equivalent of three ( 3) years of full time relevant experience"

REASON: Environmental assessment and remediation has become an interdisciplinary endeavor, and persons with training in other sciences besides the engineering, earth, and environmental sciences are qualified to conduct environmental inquiries. Furthermore, a person with an advanced degree in a relevant science generally has as much training and overall qualification as a person holding a professional license or registration.

( C) " Have Baccalaureate degree from an accredited institution of higher education in a relevant discipline of engineering, environmental science, earth science, physical science, chemical science, or biological/ health science and the equivalent of five ( 5) years of fulltime relevant experience"

REASON: Environmental assessment and remediation has become an interdisciplinary 316 endeavor, and persons with training in other sciences besides the engineering, earth, and environmental sciences are qualified to conduct environmental inquiries.

Response: EPA appreciates the commenter's suggestions. However, the commenter's suggested revisions to the definition of environmental professional are more stringent than the Agency has determined are necessary for the purposes of qualifying to oversee an all appropriate inquiries investigation. Particularly given that the scope of the all appropriate inquiries investigation is to investigate prior uses and ownerships of a property to determine the potential for environmental contamination. The final rule does not require sampling and analysis.

Please see also responses to comments 0072 ( excerpt 2) and 0099 ( excerpt 1).

Commenter Organization Name: SCBRG Comment Number: 0321 Excerpt Number: 1 Excerpt Text: The South Carolina Board of Registration for Geologists ( SCBRG) wishes to comment on the above referenced proposed rule. Specifically, our comments concern the definition of environmental professional. In the proposed definition, the environmental professional is defined by a multi tiered structure that first recognizes Professional Geologists ( PG) and Professional Engineers ( PE) and then proceeds downward to relevant experience and ends with a grandfather provision. The definition does have a disclaimer that states, " The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional". The SCBRG believes this definition is not definitive enough, provides opportunities for unqualified personnel to circumvent state laws, and could allow unqualified persons to conduct the practice of geology in South Carolina and possibly in other states that have professional registration requirements for geologists.

To strengthen the definition and to be protective of the health and safety of our citizens, SCBRG request that EPA redraft the definition for environmental professional to require such a person to be a registered professional in states that have professional registration laws. If the person will be conducting the practice of geology ( which the completion of All Appropriate Inquiry for a Phase I ESA would require), then for states that require registration of geologists the environmental professional must be a registered professional geologist in that state. The same concept would apply for persons conducting engineering practices or other appropriate scientific investigations where licensing is appropriate. If the definition must have multiple tiers, then the first tier of the definition should require professional registration in states with state regulated registration laws. The second tier would only apply for states without professional registration laws.

In the current proposed definition, EPA only acknowledges professional registration 317 without ensuring a person is truly qualified through professional registration. It places a burden on states with professional registration laws to seek out and take legal action against unqualified environmental professionals that are not registered professionals. However, with EPA's unequivocal recognition and requirement for professional registration in the states that have registration laws, the environmental professional could be considered qualified in his field. Professional registration's expressed purpose is to ensure a person is competent in his field through demonstrated academic achievements, relevant work experiences, and nationally based examination scores. Consequently, the most efficient method to ensure that environmental professionals are competent to complete the All Appropriate Inquiry process is through requiring professional registration in states with registration programs. This would prevent the creation of unnecessary loopholes for unqualified persons.

Response: EPA disagrees with the commenter. The conduct of all appropriate inquiries may not necessarily require a person to practice geology. However, if a person should have to practice geology during the conduct of an all appropriate inquiries investigation, the final rule provides in § 312.10 ( b)( 4) the following provision: " The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work, a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in ' 312.21( b)." This portion of the final rule seems to adequately address your concern.

Commenter Organization Name: Jermakian, David Comment Number: 0328 Excerpt Number: 1 Excerpt Text: I suggest the following changes to the definition of Environmental Professional. Changes are underlined  Environmental Professional means:

( a) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per § 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in § § 312.20( d) and ( e).

( b) Such a person must:

( 1) hold a current Professional Engineer's or Professional Geologist's license or registration from a state, tribe, or U. S. territory ( or the Commonwealth of Puerto Rico) or be individuals that are certified by a professional organization that is third party 318 accredited and have the equivalent of five ( 5) years of full time relevant experience; or ( 2) be licensed or certified by the federal government, a state, tribe, or U. S. territory ( or the Commonwealth of Puerto Rico) to perform environmental inquiries as defined in § 312.21 and have the equivalent of five ( 5) years of full time relevant experience; or ( 3) have a Baccalaureate or higher degree from an accredited institution of higher education in a relevant discipline of engineering, environmental science, or earth science and the equivalent of ten ( 10) years of full time relevant experience; or ( 4) as of the date of the promulgation of this rule, have a the equivalent of fifteen ( 15) years of fulltime relevant experience.

( c) An environmental professional should remain current in his or her field through participation in continuing education or other activities and should be able to demonstrate such efforts.

( d) The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work, a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in § 312.21( b).

( e) A person who does not qualify as an environmental professional under the foregoing definition may assist in the conduct of all appropriate inquiries in accordance with this part if such person is under the supervision or responsible charge of a person meeting the definition of an environmental professional provided above.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0142 ( excerpt 1).

Commenter Organization Name: ID Board of Reg. for Prof. Geologists Comment Number: 0421 Excerpt Number: 1 Excerpt Text: The Board strongly concurs in Section 312.10( b)( 4) of the proposed rule, which states:

" The definition of environmental professional provided above does not preempt state professional licensing or regulation requirements such as those for a professional geologists, engineer, or site remediation professional. Before commencing work ( emphasis added), a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in Section 312.21( b)."

The State of Idaho requires licensure for the professional practice of geology. It is 319 inappropriate, and possibly illegal, for the proposed " environmental professionals" to engage in the practice of geology in the environmental characterization and remediation of Brownfields sites.

Any and all proposed " grandfathering" clauses as stated in the proposed rulemaking change should be removed. Any references to unlicensed individuals being qualified by the federal Government to perform this type of work should also be stricken. Professional licensure is the only mechanism allowed by law in Idaho for this type of activity.

Response: Please see responses to comment numbers 0321 ( excerpt 1), 0072 ( excerpt 2) and 0142 ( excerpt 1).

Commenter Organization Name: Vanderweide, Joe Comment Number: 0455 Excerpt Number: 1 Excerpt Text: The Kansas Board strongly concurs in Section 312.1O( b)( 4) of the proposed rule which states:

" The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work ( emphasis added), a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in Section 3 12.21( b)."

The State of Kansas requires licensure for the professional practice of engineering and geology. It is inappropriate, and possibly illegal for the proposed " environmental professionals" to engage in the practice of engineering or geology in the environmental characterization and remediation of Brownfelds sites, as well as any other investigations, studies and/ or reports that require these professional activities.

Any and all proposed " grandfathering" clauses that allow conducting engineering or geologic activities within the State of Kansas, without a Kansas State License, as stated in the proposed rulemaking change should be removed. Any references to unlicensed individuals being qualified by the federal Government to perform this type of work should also be stricken. Professional licensure is the only mechanism allowed by law in Kansas for these professional activities.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0142 ( excerpt 1). 320 2.3.1 Professional Engineer Certification and Professional Geologist Certification Do Not Ensure High Level of Professional Ability Commenter Organization Name: None Comment Number: 0040 Excerpt Number: 1 Excerpt Text: There are thousands of qualified environmental professionals who do not carry the P. E. or P. G. designation. Conversely the majority of P. E. s and P. G. s are not qualified and experienced to perform environmental assessments. This distinction should be analyzed and reevaluated to include the largest sector of real environmental professionals.

Response: Please see response to comment number 0336, excerpt 1.

Note that experience requirements accompany each of the qualification paths within the definition of environmental professional. The Agency agrees that simply being educated in a certain field is not adequate and that there must be " full time" and " relevant" work experience in any circumstance to ensure that an individual qualifies as an environmental professional.

Commenter Organization Name: Hodgson, R S Comment Number: 0075 Excerpt Number: 1 Excerpt Text: it needs to be emphasized that the Registered Professional Engineer and/ or Registered Professional Geologist must have both training and experience to make the required judgments or they would be practicing outside their area of expertise. To assure this, a peer review should be included in the process. The process should also encourage any questions over training and experience to be brought before the appropriate state registration board.

Response: The definition of environmental professional in the final rule requires that individuals who are licensed Professional Engineers or Professional Geologists must also have three years of full time relevant experience. State licensing and registration boards may always be consulted regarding the qualifications of individuals licensed or registered by the state. There is no reason to include such a requirement in the final rule. The final rule requires that the written report of findings be signed by an individual who meets the definition of environmental professional and that the signature block include a statement indicating that the person signing the report meets the qualifications within the definition of environmental professional. EPA has determined that there is no need for a individual's qualifications to be peer reviewed. 321 Please also see response to comment number 0336, excerpt 1.

Commenter Organization Name: Martinez, Hugo Comment Number: 0077 Excerpt Number: 1 Excerpt Text: In your section entitled : " 2. What Are the Minimum Qualifications for Meeting the Definition of an Environmental Professional?" you mention Professional Engineers. Professional Engineers are licensed for specific practice areas. One area is Environmental Engineering. Without specifying which area of expertise is considered pertinent by EPA, it is unclear whether engineers from other areas of expertise qualify as " meeting the definition of an environmental professional". I submit that Licensed Environmental Professional Engineers are qualified Environmental Professionals. The Licensing Boards typically disallows the exercise of engineering responsibilities outside the licensed area, as defined at the time of taking the licensing exam.

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

In addition to the qualifications for environmental professionals mentioned above, EPA is retaining the proposed provision to include within the definition of an environmental professional individuals who are licensed to perform environmental site assessments or all appropriate inquiries by the Federal government ( e. g., the Bureau of Indian Affairs) or under a state or tribal certification program ( e. g., a state Licensed Site Professional program), provided that these individuals also have three years of full time relevant experience. We contend that individuals licensed by state and tribal governments, or by any department or agency within the federal government, to perform all appropriate inquiries or environmental site assessments, should be allowed to qualify as an environmental professional under today's regulation. State and tribal agencies may best determine the qualifications defining individuals who " possess sufficient specific education, training, and experience necessary to exercise professional judgment to 322 develop opinions and conclusions regarding the presence of releases or threatened releases... to the surface or subsurface of a property, sufficient to meet the rule's objectives and performance factors" within any particular state or tribal jurisdiction.

Based upon the input received from the public commenters, EPA determined that the definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of stringent qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced.

Commenter Organization Name: Lind, Peter Comment Number: 0107 Excerpt Number: 1 Other Sections: NEW  2.1.2  Revise the license requirement to include licensed or certified professionals other than professional engineers and professional geologists Excerpt Text: The present definition for " environmental professional" in the PROPOSED REGULATION is too restrictive by omitting the words, " licensed architects" and " architectural accredited institutions". Similar to licensed engineers and licensed geologists, licensed architects are design professionals.

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

Response: Please see responses to comments 0072 ( excerpt 2) and 0099 ( excerpt 1).

Note that architects can become environmental professionals as defined in this rule either by possessing a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of five ( 5) years of full time relevant experience; or have the equivalent of ten ( 10) years of full time relevant experience. 323 Commenter Organization Name: Froehlich, R. A. Comment Number: 0119 Excerpt Number: 1 Other Sections: NEW  2.3.3  Adopt the definition of EP as specified in the ASTM standard Excerpt Text: If the objective of this change in rules is to ensure that all appropriate inquiry is performed by a qualified environmental professional, the qualifications should mirror the qualifications of environmental professionals as included in the current ASTM Standard on credentials for environmental professionals. Merely licensing as a P. E. or P. G. does not ensure the highest levels of professionalism in environmental professionals. Independent credentialling by an organization that meets the requirements of the ASTM standard which is supported by the environmental professional associations is the best way to ensure that all appropriate inquiry is made by well qualified environmental professionals. I stongly recommend that environmental professionals should be certified as a Qualified Environmental Professional by the Institute for Professional Environmental Practice. The IPEP certification program, one of the ASTM compliant certification programs, since it is supported by the Air & Waste Management Association, the Water Environment Federation, the National Association of Environmental Managers, the American Industrial Hygiene Association, the Solid Waste Association of North America, the American Association of Environmental Engineers, and several other environmental professional organizations. All of these professional organizations existed well before the certification issues arose, and each of the sponsoring organizations supports the QEP certification as the only environmental professional certification.

Response: EPA is not recognizing in the regulatory language of the final rule private, nongovernmental organizations whose certification requirements meet the environmental professional qualifications included in the final rule. The final rule does not reference any private party professional certification standards.

Given the performance based qualifications provided in the final definition for an environmental professional, such an approach is not necessary. Therefore, there is no need to reference or depend upon an independent standard such as the ASTM E1929 standard that assesses professional certification standards. The final rule does not recognize, or reference, any private organization's certification program within the context of the regulatory language. However, the Agency notes that any individual with a certification from a private certification organization where the organization's certification qualifications include the same or more stringent education and experience requirements as those included in today's final regulation will meet the definition of an environmental professional for the purposes of this regulation.

Commenter Organization Name: Schafer, Marc Comment Number: 0188 324 Excerpt Number: 1 Other Sections: NEW  2.1.3  Revise the rule to exclude the license requirement from the definition of the EP Excerpt Text: The Minimum Qualifications for those conducting the All Appropriate Inquiry work which specifically states that a Professional Geologist of a Professional Engineer is acceptable is objectionable for the following reasons: 1.) A Professional Engineer ( PE) and Professional Geologist ( PG) receive no additional experience as compared to an engineer with a Baccalaureate degree over a three year period when both groups work in environmental investigations. Those successfully receiving PE or PG status will not have garnished additional experience in their studies relative to environmental releases or the causes of such releases by virtue of studying for the PE and PG exams. The additional requirement of two years to be placed on the Baccalaureate is therefore arbitrary. 2.) By specifically labeling that a Professional Engineer ( PE) and Professional Geologist ( PG) may conduct the All Appropriate Inquiry work, it appears that these titles are a preferred class and therefore more desirable. This causes confusion with the user where they must compare various categories. It would be easier for the user to eliminate the PE and PG titles and use only the experience and educational qualifications.

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

The Agency believes that being a licensed professional engineer or a licensed professional geologist is beneficial in carrying out site assessments. However, this licensing alone is not adequate. This rule also requires three years of experience for such individuals. In some instances, state requirements for obtaining a P. E. or P. G. license, which often include that an individual have a certain number of years experience after obtaining a college degree, may create a situation where individuals applying for such licenses must have more years of relevant experience to become an environmental professional than an individual who has an engineering or geology degree and is required by the final rule to have five years of full time relevant experience to qualify as an environmental professional. Regardless, both sets of individuals may qualify as environmental professionals. 325 Commenter Organization Name: Outsource Environmental Company Comment Number: 0211 Excerpt Number: 2 Excerpt Text: In our experience, many P. E.' s and P. G.' s, for example, may have 5 years generally related experience, but do not posess much ( or any) of these specific relevant experiences in their backgounds.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Appraisal Institute Comment Number: 0212 Excerpt Number: 5 Excerpt Text: The EPA has proposed that a " certified engineer" be placed above all other professional qualifications in the signing off on All Appropriate Inquiry investigations. While current regulations state what one must do to conduct such an inquiry, the proposed rule would change this to state who that person should be.

We do not believe engineers should be given special status in the environmental assessment industry as that designation does necessarily bring with it the needed skill set to protect the public health.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Gray, Cynthia Comment Number: 0215 Excerpt Number: 1 Excerpt Text: I think it is appropriate to require some level of competency and qualifications for environmental professionals conducting environmental site assessments, and managing Brownfields and similar EPA or other State regulated projects. The historic lack of certification/ qualification has led to occasional substandard work in the area of environmental compliance and remediation.

However, it appears the main rationale behind limiting the registration/ qualification to Registered Professional Engineers and Registered Professional Geologists is to ensure ethical behavior in addition to competency. If ethical concerns are the main reason EPA has accepted the American Society of Civil Engineers' arguments in favor of this limitation, I would challenge the assertion that P. E. s and P. G. s are more ethical than 326 others professionals with credentials that demonstrate competency. The Institute of Hazardous Materials Management and the Academy of Certified Hazardous Materials Managers insist upon the adherence to equally stringent ethical standards by their diplomates and membership.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 2 Other Sections: NEW  <IP_ADDRESS>  The proposed minimum requirements will have a negative impact on the ESA industry, small businesses, and the real estate market Excerpt Text: First, under the proposed rule, an engineer with no environmental training at all can be made responsible for assessing land with significant environmental contamination. " All appropriate inquiries" require data collection and visual inspection. Such duties do not translate into the professional certification of " engineer." Placing someone in charge of evaluating environmental liabilities with no formal environmental training is a risk to the public health.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 4 Other Sections: NEW  2.1.2  Revise the license requirement to include licensed or certified professionals other than professional engineers and professional geologists Excerpt Text: It is important that professional designations for conducting inquiries be placed on the same level. Engineers should not be given special status in this industry as that designation does automatically bring with it the needed skill set to protect the public health. Instead, place all professional designations on the same level and make level of experience the deciding factor.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 1 327 Excerpt Text:  Preferential Recognition. The proposed definition of an Environmental Professional includes individuals who possess the following combinations of education and experience:

As of the date of promulgation of the final rule, a person with a Baccalaureate or higher degree in Environmental Science or Earth Science from an accredited institution of higher education is required to have more full time relevant work experience than a person with a Professional Engineers license or a Professional Geologist license with no prior environmental experience, thus granting preferential recognition over those with environmental education and experience.

Response: Please see response to comment number 0336, excerpt 1. Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 4 and 6 Excerpt Text: The EPA has proposed that a professional engineer be placed above all environmental and other professional qualifications in the signing off on all appropriate inquiry investigations. Other instances of this profession acceptance proposal have been found in other laws. Current Federal regulations only state what one must do to conduct such an inquiry. Such an unwarranted elevation of professional roles by one government agency endangers the public well being, hurts small businesses created around current environmental regulations, and could slow down home building  one of the primary engines of our economy.

First, under the proposed rule, an engineer with no environmental training at all can be made responsible for assessing land with significant environmental contamination. Prior to acceptance of one profession as an environmental standard, EPA should define the criteria of what an environmental professional is include specific educational requirements and skill sets. " All appropriate inquiries" require data collection and visual inspection. Such duties do not translate into the professional certification of " engineer." Placing someone in charge of evaluating environmental liabilities with no formal environmental training is a risk to the public health.

Fifthly, it is important to note that EPA's charter is to protect the environment and not endorse any one profession. Prior to enacting any environmental regulation with specific language about any profession, EPA needs to validate that they are empowered/ chartered 328 with such a task. It is important that all environmental professional designations for conducting inquiries be placed on the same level. Engineers should not be given special status in this industry as that designation does automatically bring with it the needed skill set to protect the public health. Instead, place all professional designations on the same level and make level of experience the deciding factor.

Response: Please see response to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1). Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard.

Commenter Organization Name: IPEP Comment Number: 0266 Excerpt Number: 4 Excerpt Text: Thus, merely having a state or territorial license to practice a profession, such as engineering or geology, does not necessarily denote that an individual has the requisite qualifications and experience to conduct, coordinate, and oversee the gathering and evaluation of information required to fulfill the AAI requirements. Environmental Professionals engaged in AAI must be able to address the wide range of issues and property conditions that may be encountered at such sites, especially those that have been filled with anthropogenic materials and/ or have been used for extended periods and multiple industrial purposes that may have involved the use, storage, manufacture, and/ or disposal of hazardous substances ( as defined under CERCLA and the Toxic Substances Control Act [ TSCA]) or hazardous waste ( as defined under RCRA).

Of particular concern are properties where underground structures ( e. g., utilities, storage tanks, process vessels, conveyance systems, surface impoundments, drying beds, lagoons, French drains, cesspools, burn pits, landfills) may have existed and been used for the storage, conveyance, processing, and/ or disposition and management of hazardous materials or hazardous wastes, including fire response training, dewatering of process residuals, or other past practices that could have released hazardous constituents into the environment intentionally or unintentionally or in an uncontrolled manner.

In the case of abandoned or razed sites, where records are limited or non existent, it is particularly important for the Environmental Professional to be knowledgeable and highly competent regarding a broad spectrum of industrial activities and the typical hazardous materials used in such activities over the relevant operational life of such a facility, many of which date to the early 20th century before the modern era of 329 environmental management which began in the late 1960s and 1970s. To conduct AAI, the Environmental Professional should not only be proficient and have a working knowledge of hazardous substances under CERCLA and TSCA, and hazardous wastes under RCRA, but also have a working knowledge of analytical chemistry sufficient to identify and characterize such substances in the various media of concern that may be encountered at a facility, including soils, surface water, ground water, indoor air, and the ambient atmosphere.

In this regard, only a limited number of the approximately 18 professional engineering examination disciplines deal with the subjects essential to performing environmental site assessments or conducting All Appropriate Inquiries. As examples, agricultural, civil, environmental, and chemical engineering examinations address various aspects of environmental management, whereas electrical and computer engineering, metallurgical engineering, and structural engineering professionals likely do not have adequate training and experience to address environmental matters related to the use and management of hazardous substances and hazardous wastes in commerce or industry. Furthermore, only a small percentage of the licensed professional engineers in the U. S. practice in the field of environmental engineering.

Similarly, registered professional geologists are required only to meet the minimum acceptable criteria to become licensed, and only a small percentage of those who achieve licensure practice or become familiar with the subjects and issues of importance in which a highly competent or expert environmental professional needs to be proficient in order to perform AAI activities. For example, geologists who practice remedial investigation and remediation are likely to have substantial knowledge and expertise in the use and possible release of hazardous substances and/ or hazardous wastes into the subterranean environment on properties used for commercial or industrial purposes, whereas a geologist who is engaged in mining exploration or water supplies development is not likely to have such expertise.

Additionally, because the legal definition of " engineering" varies from one state/ jurisdiction to another, and because some states have or are creating other professional licensing or registration requirements for other disciplines ( including geologists), IPEP believes that the above suggested insert is the best way to address the concern for relevant experience and a high degree of competency. As errors of omissions in the performance of environmental site assessments or All Appropriate Inquiries can result in serious adverse consequences to public health or the environment, it is essential that such activities be performed not just by junior level professionals meeting the minimum criteria for licensure or certification, but under the direction of an experienced environmental professional of demonstrated competence.

Likewise, the conduct of All Appropriate Inquiries, should be performed under the direction of and be reviewed and certified by those with qualifications and experience in multimedia environmental management. A major distinction of the QEP credential from all other environmental professional credentials is the requirement that QEPs exhibit comprehension and technical capability to assess multi media environmental impacts in 330 their professional practice, and they are specifically subjected to examination on this concept.

There is a further concern regarding the designation of professional geologists to perform AAIs For most real property AAIs the quality of underlying ground water is an item of concern. For some properties this portion of the AAI is so important, it should be performed under the direction of a licensed/ registered or certified professional with qualifications and experience in hydrogeology, hydrology, and environmental chemistry. This is an area of paramount importance to not only owners/ operators or prospective owners of the real property of interest, but also adjacent property owners, nearby water supply owners/ operators, and the local or state health authorities responsible for drinking water quality in the nearby community. Thus, it is important that one of the persons on a team responsible for performing AAI on a property where groundwater quality is suspect, or vital to the transaction, have a working knowledge of hydrogeology, hydrology, and environmental chemistry, or engage the services of an individual who is qualified and experienced, and licensed and/ or certified in these practice areas.

It should be noted that few, if any, registered professional engineers have demonstrated proficiency in these areas unless they have extensive experience in AAIs, ESAs, or site remedial investigation and remedial action implementation. In contrast, only a small percentage of professional geologists have expertise in current and past practices involving the use and/ or disposition of hazardous substances and/ or hazardous wastes. This again illustrates the need to fit the licensure or certification criteria to the qualifications and experience of the individual and not the name of the license/ registration or certification specialty. It is also noteworthy that approximately 31 states have established a form of Registration/ Certification Boards for Geologists ( see Appendix B).

Accordingly, IPEP recommends that ASTM 1929 98 be identified in the final rule as the appropriate standard to use for designation of an Environmental Professional.

Response: EPA is retaining the proposed provision to include within the definition of an environmental professional individuals who are licensed to perform environmental site assessments or all appropriate inquiries by the Federal government ( e. g., the Bureau of Indian Affairs) or under a state or tribal certification program, provided that these individuals also have three years of full time relevant experience. We contend that individuals licensed by state and tribal governments, or by any department or agency within the federal government, to perform all appropriate inquiries or environmental site assessments, should be allowed to qualify as an environmental professional under today's regulation. State and tribal agencies may best determine the qualifications defining individuals who " possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases... to the surface or subsurface of a property, sufficient to meet the rule's objectives and performance factors" within any particular state or tribal jurisdiction. 331 The Agency believes that being a licensed professional engineer or a licensed professional geologist is beneficial in carrying out site assessments. However, this licensing alone is not adequate. This rule also requires three years of experience for such individuals. In some instances, state requirements for obtaining a P. E. or P. G. license, which often include that an individual have a certain number of years experience after obtaining a college degree, may create a situation where individuals applying for such licenses must have more years of relevant experience to become an environmental professional than an individual who has an engineering or geology degree and is required by the final rule to have five years of full time relevant experience to qualify as an environmental professional. Regardless, both sets of individuals may qualify as environmental professionals.

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard.

EPA is not recognizing in the regulatory language of the final rule private, nongovernmental organizations whose certification requirements meet the environmental professional qualifications included in the final rule. The final rule does not reference any private party professional certification standards.

Given the performance based qualifications provided in the final definition for an environmental professional, such an approach is not necessary. Therefore, there is no need to reference or depend upon an independent standard such as the ASTM E1929 standard that assesses professional certification standards. The final rule does not recognize, or reference, any private organization's certification program within the context of the regulatory language. However, the Agency notes that any individual with a certification from a private certification organization where the organization's certification qualifications include the same or more stringent education and experience requirements as those included in today's final regulation will meet the definition of an environmental professional for the purposes of this regulation. 332 Commenter Organization Name: IPEP Comment Number: 0266 Excerpt Number: 5 Excerpt Text: Conducting and Overseeing an AAI Is Not An " Engineering" Task The conduct of an AAI is not in and of itself an engineering task or require engineering expertise, and should not be the exclusive purview of registered professional engineers, even if such authority were to be limited to those professional engineers who have qualifications and experience and have demonstrated competence in performing such activities. If the findings of an AAI indicate that additional investigation and/ or remediation is likely to be needed on the property of interest or adjacent properties, the evaluation of appropriate investigative efforts and costs may require the expertise of an appropriately qualified and experienced licensed engineer at some point in the subsequent efforts that follow issuance of an AAI or ESA report to the authorizing party. However, such follow up efforts are beyond the scope of the proposed regulation.

Response: Please see responses to comment numbers 0040 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: ABCEP Comment Number: 0271 Excerpt Number: 1 Excerpt Text: Our Comments on the Environmental. Professional ( EP) definition ^ pertain to recognizing and including persons of the* appropriate and relevant backgrounds to conduct the relevant environmental inquiries. While the " Environmental Professional" definition intends to insure that persons responsible for determining past and present conditions affecting human health and the environment need an appropriate level of background and experience, the proposed regulation misses this goal by recognizing professional licenses that may or may not certify that the person has the skills necessary to access the complex variables needed for the investigation of a site in question. For example, a Professional Engineer ( PE) could have all of his professional and educational background in electrical, structural, or systems engineering, and realistically lack the background to recognize biological effects. Recognizing that someone has a PE or Professional Geologist license does not ensure that they have an adequate environmental background. The same can be said for state environmental licenses. For both environmental and engineering licenses, each state has their own exams and their own standards. Some states require that skills and educations be kept current, and many do not. Under your EP definition, a PE with a background in electrical engineering who received his license 30 years ago, and may have worked in his field for 3 years, at the beginning of his career, would be qualified to conduct inquires under CERCLA. Realistically, this may meet the letter of the law, but is unrealistic in what the Agency is trying to achieve. 333 Response: Although the final rule recognizes tribal and state licensed P. E. and P. G. s and other such government licensed environmental professionals with three years of experience to be environmental professionals, the rule does not restrict the definition of an environmental professional to these licensed individuals. The definition of an environmental professional also includes individuals who hold a Baccalaureate or higher degree from an accredited institution of higher education in engineering or science and have the equivalent of five ( 5) years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries. In addition, individuals with ten years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries qualify as environmental professionals for the purpose of conducting all appropriate inquiries. Individuals with these qualifications most likely will possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property, sufficient to meet the objectives and performance factors included in § 312.20( e) and ( f).

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 6 Other Sections: NEW  2.1.4  Revise educational requirements to allow individuals with Baccalaureate or higher degrees in areas other than engineering, environmental science, and earth science and five or more years of relevant experience to qualify as EPs Excerpt Text: The EP is defined in § 312.10 ( b)( 1) and ( 2). Essentially, the qualifications involve either 334 holding a PE or PG certification and three years of full time relevant experience; or holding a Baccalaureate or higher degree in the relevant disciplines of engineering, environmental science, or earth science plus five years of full time relevant experience.

Comment: We disagree with the minimum qualifications for an EP. The current language is far too restrictive. Having the specified professional certifications or degrees has no relevance, in our professional opinion. In our more than 20 years of experience in performing Phase I investigations, we have seen no correlation between certifications or degree fields and the competent undertaking of a site investigation. There is an important thought process that is necessary in order to complete a quality Phase I investigation. In part, it requires knowledge about commercial and industrial processes and activities, including by products. But it also requires an ability to comb through municipal records, historical sources, and other reference material in an effort to put together an historical use puzzle. PE certifications or degrees in engineering or specific sciences have little bearing on the ability of the professional to appropriately conduct such research. We strongly recommend broadening the criteria to a single one ( beyond the grandfathering threshold) involving a Baccalaureate or higher degree from an accredited institution and three years of relevant full time experience.

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

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: Anonymous Comment Number: 0326 Excerpt Number: 2 Excerpt Text: The EPA/ NRMC must reconsider this definition. The definition should only include two 335 criteria: Relevant experience and Applicable Certification. Experience, regardless of secondary education, must be the primary criteria. The years required may be adjusted based on " applicable" education or licence but experience must be the focus. Applicable Certification should not, and does not, necessarily mean a PE or PG. In fact, neither a PE or PG examination ( in almost all cases) includes significant testing on applicable AAI areas. In the area of AAI the Certified Hazardous Materials Manager, beyond doubt, provides for a much more complete examination and proof of experience than either a PE or PG. It is agreed that no licence/ certification encompasses all the experience needed for AAI work, and hence they must be tied to experience but to give weight to a PE and PG and not to a CHMM and/ or other certifications, is entirely inappropriate.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0336 ( excerpt 1).

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 6 Other Sections: NEW  2.1.4  Revise educational requirements to allow individuals with Baccalaureate or higher degrees in areas other than engineering, environmental science, and earth science and five or more years of relevant experience to qualify as EPs Excerpt Text: 2) FAA believes that the qualifications for an EP should also include those with a Bachelor's ( BA or BS) in chemistry, physics, and/ or the life sciences plus years of relevant experience. Limiting the title to just engineers, geologists, and people with earth and environmental science degrees arbitrarily punishes those who entered the business prior to most schools establishing environmental science programs but who do not yet 336 have the requisite 10 years of experience before the publication of the final rule. Also, there is no reason to assume that someone with a professional engineer's ( PE) or professional geologist's ( PG) certification will better understand and judge a property's likelihood of contamination after three years of relevant experience than someone with a BS in a relevant degree and five years of experience. Therefore, FAA believes that it is arbitrary and capricious to require those with a BS to have two extra years of relevant experience than a PE or PG must have in order to qualify as an EP.

Response: Please see response to comment number 0099, excerpt 1.

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 3 Excerpt Text: Section III, D Qualifications. I recognize the contentiousness of this section but it does not appear that the regulatory development process recognized that AAI can include multi levels of investigations, e. g., Phase I, II, Expanded Phase II. A Phase I is largely an historical document, not engineering or geological study. In addition to performing Phase Is for close to 20 years I have and continue to review other third party Phase I documents. No question that there are many reports that are total frauds, but of the four absolutely worst reports I have ever reviewed, two were by PEs and one was by a PG ( the fourth was by a person that clearly had a conflict of interest). My point is that very little in the training of a PE or PG better qualifies that category to be better Phase I producers. A critical aspect of Phase Is is how they express their findings. Neither of these skills is commonly emphasized in the education of PEs or PGs. 337 Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0336 ( excerpt 1).

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: Anonymous Comment Number: 0371 Excerpt Number: 2 Excerpt Text: I find it interesting that two specific licenses are listed ( e. g. PE and CPG) that qualify as environmental professionals ( EP). While both PE and CPG are issued by states, they do not meet all the requirements listed for an environmental professional in the proposed rule. Specifically, CPG's at least in the state of Ohio, are not required to pass an examination to show competence in their field. There is no requirement for continuing education to maintain either the CPG or PE.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0336 ( excerpt 1).

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the 338 presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: Cohen, Irving Comment Number: 0391 Excerpt Number: 1 Other Sections: NEW  2.1.2  Revise the license requirement to include licensed or certified professionals other than professional engineers and professional geologists Excerpt Text: However, I feel that the definition is excluding an important sector of the environmental practice community and places heavy reliance on recognition on professional licensure that may not actually be relevant to environmental disciplines.

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

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

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience. 339 In addition, many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

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

Commenter Organization Name: McLeod, Jeff Comment Number: 0444 Excerpt Number: 2 Excerpt Text: I find it interesting that two specific licenses are listed ( e. g. PE and CPG) that qualify as environmental professionals ( EP). While both PE and CPG are issued by states, they do not meet all the requirements listed for an environmental professional in the proposed 340 rule. Specifically, CPG's at least in the state of Ohio, are not required to pass an examination to show competence in their field. There is no requirement for continuing education to maintain either the CPG or PE.

While there are a number of certifications available for environmental professionals to obtain, the Certified Hazardous Materials Manager ( CHMM) is the most established and recognized in the field. In order to obtain the CHMM credential, one must meet most of the requirements already listed in the proposed rule for education and experience and unlike the CPG, an examination must be passed to evaluate competence in the field. CHMMs are also required to remain current in their field through continuing education or they loose the credential, unlike both the CPG and PE.

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

Response: Please see responses to comment numbers 0371 ( excerpt 2) and 391 ( excerpt 1).

Commenter Organization Name: Greenwood, Harriet Comment Number: PM 0127 0008 Excerpt Number: 1 Excerpt Text: The strong emphasis on professional engineering or a professional geologist license is not borne out, in my experience, of reviewing hundreds of Phase I reports and remediation studies.

The education of PEs and PGs tends to focus on quantitative analysis. Phase I work, on the other hand, is mainly a qualitative analysis. It's based more on interviews, site inspections, historical source review. It involves review of the reliability and thoroughness of the information collected. When data is available, it is frequently limited and quantity is often related to nearby sites or very limited in scope.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0336 ( excerpt 1).

Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined 341 that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations.

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: Greenwood, Harriet Comment Number: PM 0127 0008 Excerpt Number: 4 Excerpt Text: Some AA inquiries will focus on agricultural land, timberland, rangeland, or impacts to rivers or fisheries. PEs and PGs lack specific academic training on some of these issues. Many of these professionals do learn about these fields of life science on the job and are well qualified to perform adequate AAI investigations in areas where they lack academic background.

Likewise, professionals with life science academic backgrounds can learn on the job the necessary areas of other technical fields, such as engineering, environmental chemistry or geology, where they may have academic weaknesses. A good BA or a BS degree is a sound basis for an environmental professional.

In my experience of reviewing Phase I's both as a senior environmental consultant and as an environment banker, some of the best Phase I's are written by liberal arts majors, and oddly, history majors.

Response: Please see responses to comment numbers 0072 ( excerpt 2) and 0336 ( excerpt 1).