Response: All appropriate inquiries requires that government records be searched for registries or publicly available lists of institutional controls and land use restrictions applicable to the subject property. If the institutional controls are not " approved" we would not expect that they would be recorded in government records. It is important that prospective landowners obtain information on institutional and engineering controls in place at the property being acquired. It also may be important to locate information on such controls in place at nearby properties. To obtain the liability protections afforded under CERCLA ( i. e., innocent landowner, contiguous property owner, bona fide prospective purchaser), the statute requires, as part of the " continuing obligations," that the property owner comply with all land use restrictions and not impede the 443 effectiveness of institutional controls. Therefore, it is important that information on institutional and engineering controls be obtained by prospective landowners, even though information about such controls may not have been routinely obtained as part of due diligence practices prior to today's final rule ( we note that the current interim standard does include provisions for searching for " activity and use limitations").

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 25 Excerpt Text: 312.26( b)( 4): What is a " public health record." The goal should be related to releases of hazardous substances or petroleum, not roach counts. This paragraph should be deleted.

Response: Public health records may include information on releases to the environment that caused public health concerns or health damages.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 11 Excerpt Text:  iii. The new requirements for reviewing local government records and an " Adjoining and Nearby Property Analysis" are not authorized or permitted by the Brownfields Revitalization Act and contradict customary practice.

Another unclear requirement of the new rule is the provision stating that purchasers " must seek to identify through the conduct of the standards and practices set forth in this subpart. . . [ p] roperties adjoining or located nearby the subject property that have environmental conditions that could have resulted in conditions indicative of releases or threatened releases of hazardous substances to the subject property." 69 Fed. Reg. at 52577. This adjoining property analysis is subject to the " performance based" standard in the same way that investigation of the subject property is performance based. 69 Fed. Reg. 52562. In other words, the environmental professional must either prove a negative, that there are no environmental conditions indicative of concern with respect to adjoining properties or must qualify her report.

In performing the adjoining property analysis, the environmental professional must search a long list of records, including a mandatory search of unspecified local government records. Proposed § 312.26. Local government records could include not only records of cities and counties, but school districts, special districts, joint powers authorities, utility districts ( utility districts may well have relevant records of sewer incidents involving releases of hazardous substances), and many others. In California alone, there are over 7000 local government entities. Even if " local government" were limited to cities and counties, their records are often not standardized or organized in any way that lends itself to systematic searches. This makes fair game for a plaintiff 444 seeking to show that an adjoining property analysis did not measure up to the performance based standard.

In view of the uncertainty created by the proposed adjoining property analysis/ local record requirement, it is easy to see why current generally accepted good commercial and customary standards and practices avoids an open ended local government records/ adjoining property analysis. ASTM E1527 makes review of local government records optional, and then to " enhance and supplement" federal and state records, and only if such local records are " generally obtained, pursuant to local good commercial or customary practice." ASTM E1527 00 § 7.2.2. Moreover, no record is expected to be reviewed that is not geographically indexed. ASTM E1527 § 3.3.27 [ Footnote: There is some indication in the preamble's explanation of this section that the committee may have intended that the review of records with respect to adjoining properties be restricted to a specific list of records not including any local records that are generally geographically indexed. Under this reading, an additional search involving local government records would be conducted only if specific indications of contamination showed up within that initial list of records. 69 Fed. Reg. at 563. However, the text of the proposed rule requires that "[ w] ith regard to nearby or adjoining properties, the review of  local government records. . . should include identification of the following: ( 1) Properties for which there are government records of reported releases or threatened releases." Proposed § 312.26. The general requirement of § 312.26 is also stated as reviewing federal, tribal, state, and local records of the subject property and adjoining properties " for the purposes of achieving the objectives and performance factors of § 312.20( d) and ( e)." Proposed § 312.26( a). Therefore the text of the rule would require searching unspecified local government records of adjoining properties for reported releases or threatened releases and as needed to identify conditions indicative of releases or threatened releases with respect to the subject property. We do not know if these ambiguities are the result of intentionally vague compromise language. In any event we suggest that the text of the rule should be revised to make clear exactly what is required. If a tiered approach was indeed intended, we would suggest something along the lines of the following: " search this list of records first, and only if indications of a release are found among these records, then expand the search to gain more complete information regarding the release."

Current generally accepted practice with regards to adjacent properties is represented by the requirements of ASTM E1527 § 7.2, which employs the checklist approach to specifically enumerated record sources. The proposed adjoining/ nearby property analysis is entirely new to environmental site assessment practice. See, e. g., Client Alert at 3. We believe that the proposed adjoining/ nearby property analysis does not comply with the requirements of the Brownfields Revitalization Act to promulgate standards to " carry out all appropriate inquiries" in accordance with " generally accepted good commercial and customary standards and practices." 42 U. S. C. § 9601( 35)( B). Nor do we think it complies with Congressional intent to clarify the obligations of prospective purchasers, but rather further obscures what purchasers must do to obtain liability protection.

The local records review criteria of the Brownfields Revitalization Act, 42 U. S. C. § 9601( 35)( B)( iii)( V), is directly addressed by ASTM E1527 § 7.2.2 in a way that conforms to the intent of the statute. We believe that the open ended performance based approach to local 445 records of the proposed rule is unworkable and not consistent with the intent of Congress.

Response: The government records searches included in the final rule are very similar to the government records searches included in the ASTM E1527 2000 standard, which also includes requirements to search government records for information about adjoining and nearby properties. The Small Business Liability Relief and Brownfields Revitalization Act clearly provides EPA with the authority to develop standards and practices for the conduct of all appropriate inquiries that include the collection of information about the potential environmental conditions of nearby properties that may have an impact on the subject property. The statutory criteria for the review of government records includes: " reviews of Federal, State, and local government records . concerning contamination at or near the facility." In addition, one purpose of conducting all appropriate inquiries is to obtain protection from liability as a contiguous property owner. The definition of a contiguous property owner under CERCLA is "[ a] person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a hazardous substance from, real property that is not owned by that person "

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 11 Excerpt Text: In § 312.26 " Reviews of Federal, Tribal, State, and local government records" ( b)( 4), we recommend striking " public health records" entirely from this section.

Rationale:  Public health records are not typically found in accessible databases and are not normally reviewed under current ASTM practices.  Although public health records may occasionally provide useful information relevant to an environmental release, the review of public health records should be conducted only in those instances where major data gaps exist and should be left to the EP's judgment.  If the EP is required to review public health records in order to meet compliance with this regulation, the cost of the assessment report is certain to escalate.

Response: Public health records may include information on releases to the environment that caused public health concerns or health damages. The search for public health records should be conducted in conformance with the performance factors of 312.20( f).

Commenter Organization Name: Dannatt, Georgina Comment Number: PM 0359 0004 Excerpt Number: 3 Excerpt Text: 446 My second area of comment is regarding review of federal, tribal, state and local government records. At some point in the last few years, many providers have come to think that the review of actual records, actual agency records, are now optional and not included in the Phase One assessment. Too many companies obtain a commercially available listing of government databases, or conduct their own database search online, and that is their only inquiry into government records. Their assumption is that if a site is not listed with a problem, there are no issues. Actual review of agency files is not done, because it's time consuming and therefore adds to the consultant's cost, or else access cannot be obtained in the time frame allotted for the assessment.

I believe more emphasis must be put on actual review of records and case files. Information such as violations, agency site inspection reports, and lists of chemicals used by previous industrial tenants can usually only be obtained through review of the local file. The extent of soil and groundwater contamination is rarely listed on a government database, and without file review, no one really knows if the subject property has been impacted by a neighboring site.

Response: EPA appreciates the commenter's concerns. The final rule does not require that actual government records be obtained and reviewed. The Agency is concerned that such a requirement would be overly burdensome and in some cases only data bases of the information included in government records may be accessible to the public. We also note that the search of government records or data bases should merely be used as a screening mechanism for identifying adjoining or nearby properties that may represent potential environmental concerns to the subject property. After identifying nearby properties that may have on going releases or previously had releases of hazardous substances, the environmental professional should seek additional information regarding the potential for these properties to affect the property that is the subject of the all appropriate inquiries investigation. 447 3.5.1 Review of Tribal Records Commenter Organization Name: Hartline, Joe Comment Number: 0118 Excerpt Number: 1 Excerpt Text: It is not clear what the value is of mandating that tribal records be searched. EPA Region 4 tells me there are no tribes in Georgia. The National Geographic recently published a map showing three areas that belong to tribes in Georgia. So what source is correct? Do I have to contact a tribe in Oklahoma that may have traditional ties to a property in Georgia? What likelihood is there that the tribe will have relevant information? I propose that it be optional for an environmental professional to search tribal records. The professional my see value in that search in certain parts of that country, but not in others.

Response: In response to commenters who pointed out that it may be difficult to obtain or gain access to tribal government records, we point out that such records need only be searched for and reviewed in those instances where the subject property is located on or near tribal owned lands. In these cases, it is important to attempt, within the scope of the rule= s objectives and performance standards, to review such records. When such records are not available, necessary information should be sought from other sources. When no information is available and the objectives of the final rule cannot be met and the result is a lack of information, the lack of information must be documented as a data gap in compliance with 312.21( c)( 2).

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 11 Excerpt Text: I have no problem adding tribal records except to comment that from my experience they do not exist in any usable form. EPA or the Tribes will incur considerable cost to develop a usable database. I question the value of including such a database until it exists in fact.

Response: Please see response to comment 0118, excerpt 1.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 16 Excerpt Text: Section 312.25( a) requires the EP to search for the existence of environmental cleanup liens that are filed or recorded under federal, tribal, state, or local law. Section 312.26 further requires searches of other tribal records. A tribal government, being a sovereign nation, would neither be 448 required to file a cleanup lien, nor be required to comply with The Freedom of Information Act. Accordingly, an EP may not be able to complete this requirement regardless of his/ her efforts. Therefore, R& W recommends the deletion of any reference to tribal law in § 312.25( a).

Response: Please see response to comment 0118, excerpt 1.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 9 Excerpt Text: The Band supports the inclusion of tribal environmental records as a component of an inquiry, but to the extent of all tribal records being accessible to a general search, the Band supports a record search that is limited to the scope of the seven types of records enumerated in the proposed rule at § 312.26( b)( 1) through ( 7) and is consistent with the objectives and performance factors in § 312.20( d) and ( e). As a general premise, the Mille Lacs Band treats all tribal records as confidential and absent a reason to the contrary, the Band will negotiate access to any necessary information. Although the Band makes every effort to comply with all federal laws and regulations, for any records requests that go beyond the scope of the proposed rules, the Band may ask to negotiate access and also ask that such requests be directed through a designated contact person within the Mille Lacs Band of Ojibwe Department of Natural Resources.

Response: Tribal records need only be searched for and reviewed in those instances where the subject property is located on or near tribal owned lands. In these cases, it is important for the environmental professional to attempt, within the scope of the rule= s objectives and performance standards, to review such records. When such records are not available, necessary information should be sought from other sources. When no information is available and the objectives of the final rule cannot be met and the result is a lack of information, the lack of information must be documented as a data gap in compliance with § 312.21( c)( 2). The Agency points out that in those cases where the subject property is located on or near a tribal owned land, it may be in the tribe's best interest to provide the required information to the environmental professional or the prospective landowner or grantee.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 13 Excerpt Text: The Mille Lacs Band recommends that this section include tribal historical documents and records consistent with the objectives and performance factors in § 312.20( d) and ( e). As a general premise, the Mille Lacs Band treats all tribal records, including historical documents, as confidential and absent a reason to the contrary, the Band will negotiate access to 449 any necessary information. Although the Band makes every effort to comply with all federal laws and regulations, for any records requests that go beyond the scope of the proposed rules, the Band may ask to negotiate access and also ask that such requests be directed through a designated contact person within the Mille Lacs Band of Ojibwe Department of Natural Resources.

Response: Tribal records need only be searched for and reviewed in those instances where the subject property is located on or near tribal owned lands. In these cases, it is important for the environmental professional to attempt, within the scope of the rule= s objectives and performance standards, to review such records. When such records are not available, necessary information should be sought from other sources. When no information is available and the objectives of the final rule cannot be met and the result is a lack of information, the lack of information must be documented as a data gap in compliance with § 312.21( c)( 2). The Agency points out that in those cases where the subject property is located on or near a tribal owned land, it may be in the tribe's best interest to provide the required information to the environmental professional or the prospective landowner or grantee.

Commenter Organization Name: Grand Rapids C of C Comment Number: 0345 Excerpt Number: 5 Excerpt Text: Section 312.25( a) requires the Environmental Professional to search for the existence of environmental cleanup liens that are filed or recorded under federal, tribal, state, or local law. The Grand Rapids Area Chamber of Commerce takes issue with the inclusion of " tribal law" in this section. A tribal government, being a sovereign nation, would not be required to file a cleanup lien or have to comply under the Freedom of Information Act. Accordingly, an Environmental Professional may be unable to complete this requirement regardless of their efforts. Therefore, the Grand Rapids Area Chamber of Commerce recommends the deletion of any reference to tribal law in § 312.25( a).

Response: Please see response to comment 0118, excerpt 1.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 14 Excerpt Text: Also, it is our experience that few if any tribal records are reviewed for an environmental site assessment except in those instances when such an assessment occurs on tribal land. If this recommendation remains in the final rule we suggest that the U. S. EPA identify what types of tribal records are generally available and are considered a " government record." 450 Response: Please see response to comment 0118, excerpt 1. 451 3.5.2 Adjustments to Search Distances Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 7 Excerpt Text: Search radius for regulatory data which is similar to the current ASTM standard seems to be appropriate.

Response: EPA thanks the commenter for the stated support.

Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 11 Excerpt Text: Although I have seen a chart which was prepared by others than EPA, what is the proposed search radius criteria for the typical databases ( RCRA, CERCLA, LUST, etc.)?

Response: In the case of government records searches for nearby properties, the final rule includes minimum search distances ( e. g., properties located either within one mile or one half mile of the subject property) for obtaining and reviewing records or data bases concerning activities and facilities located on nearby properties. The search distances are based upon our best judgment regarding the potential impacts that incidents or circumstances at an adjoining property may have on the subject property. With the exception of the required searches for institutional and engineering controls, the search distances finalized in today's rule are the search distances that were proposed in the proposed rule. For example, government records identifying properties listed on the NPL must be searched to obtain information on NPL sites located within one mile of the subject property. NPL sites located beyond one mile of a property most likely will have little or no impact on the environmental conditions at the subject property. In the case of two types of records, records of hazardous waste handler and generator records and permits, records of registered storage tanks, the final requirements specify that such records only be searched for information specific to the subject property and adjoining properties ( the rule contains no requirement to search for these two types of government records for other nearby properties). The final rule requires that available lists of institutional controls and engineering controls only be searched for information on the subject property. The final rule allows the environmental professional to adjust the search distances for reviewing government records of nearby properties based upon his or her professional judgment.

Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 452 Excerpt Number: 5 Excerpt Text: § 312.26( d): We would suggest adding " Demonstrated expert knowledge of the local area in which the subject property is located" to the list of factors for determining if alternate search distances are appropriate.

" Demonstrated expert knowledge of the local area" could be defined as have conducted at least 10 environmental inquiries in the immediate geographical area ( i. e., within 5 miles) where the subject property is located within a 5 year period.

REASON: It would be expeditious, and make for a better report, if an Environmental Professional can simply state that " search distances used were modified from standard AAI specifications, and are known to be appropriate for the subject property, based upon demonstrated expert knowledge of the local area of the subject property".

Response: The final rule allows the environmental professional to adjust the search distances for reviewing government records of nearby properties based upon his or her professional judgment. The list of factors provided in the final rule upon which the environmental professional may base his or her decision to adjust the search distances includes geologic, hydrogeologic, or topographic conditions of the subject property and surrounding environment; land use or development densities; the property type; existing or past uses of surrounding properties; and other relevant factors. The combination of these factors is very similar to the commenter's suggested factor. Therefore, EPA sees no reason to amend the list of factors as suggested by the commenter.

Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 12 Excerpt Text: 12 Steve Myers Data Accuracy 312.26( d) and 52562 64 ( search radii) If the reason for altering search radii are documented but incorrect from a logical and/ or technical standpoint, would this invalidate an owner's ability to claim an ' Innocent Landowner' defense.

Response: An incorrect reason for adjusting the search radii for a government records search most likely would not in itself result in a property owner's inability to claim the innocent landowner defense. In all likelihood, a release from the person's property would first have to be found and result in the expenditure of funds to remove or remediate the release. A determination regarding the property owner's liability and potentially the adequacy of the all appropriate inquiries investigation would then have to be made by a court.

Commenter Organization Name: Worlund, John Comment Number: 0256 453 Excerpt Number: 13 Excerpt Text: Similarly, the requirement under the AAI rule to identify NFRAP ( No Further Remedial Action Planned) sites to the same distance as active release sites ( ½  mile) is also overly burdensome. EPA has taken measures to reduce the sheer volume of sites that appear on the CERCLIS by archiving those sites where no further remedial was warranted. This certainly could mean that contamination may be present, but not to such an extent that would require concern out to ½  mile from a subject property. I would recommend that EPA consider adopting either ¼ mile radius or adjacent property only search.

Response: Information regarding NFRAP sites is still available in CERCLIS. This requirement is the same as the government records search required under the interim standard ( ASTM E1527 2000).

Commenter Organization Name: PBS & J Comment Number: 0270 Excerpt Number: 2 Excerpt Text: The new minimum search distance proposed is to extensive. We propose adopting the current ASTM 1527 00 search distance. The proposed search distances add unjustified additional costs for the research, as well as there being no guarantee that the data will be available. To many state data inconsistencies or no data at all.

Response: The minimum search distance requirements are very similar to the government records search distances required under the interim standard ( ASTM E1527 2000). The final rule requires that all appropriate inquiries include a search for institutional controls for the subject property only ( and not include a search for institutional controls at surrounding properties).

Commenter Organization Name: anonymous institution Comment Number: 0315 Excerpt Number: 3 Excerpt Text: The Rule also proposes that the environmental professional can adjust the search radii using his/ her judgment based on the site geology or other relevant considerations. In our experience, environmental professionals have abused this section of the ASTM Phase I Assessment. Specifically, search radii are inaccurately narrowed based on " distance" or the inferred groundwater direction, in an effort to reduce the need for a regulatory file review which slows the Phase I due diligence process and is costly to the environmental professional. Furthermore, groundwater direction cannot be definitively determined without three monitoring wells and subsurface strata vary greatly from reference material which focus on regional trends. Allowing liberal adjustments of the search radii will further foster an environment in which database reports are ordered by environmental professionals with reduced radii in order to save money. 454 Radii flexibility will reduce the need for valuable file reviews, discussions with regulatory authorities or case managers, the pursuit of indemnity agreements, and will result in an increase in liability for the User. At a minimum, the Rule should state that radii adjustments should be evaluated on a property by property basis and the report must clearly state the reasoning behind any adjustment so that the User is aware of the rationale utilized.

Response: Although the final rule allows the environmental professional to adjust the minimum search distance for the government records search based upon several site specific factors, the final rule requires environmental professionals to document the rationale for making any modifications to the required minimum search distances included in section 312.26 of the regulation. EPA believes that the final rule allows for flexibility but does not promote liberal adjustments to save money, since environmental professionals will have to document their rationales for adjusting the search distances.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 16 Excerpt Text: The Band agrees with the proposed language that allows an Environmental Professional to use his or her professional judgment to modify the search distance from the subject property boundary line.

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

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 12 Excerpt Text: 2) FAA agrees with EPA that it would be appropriate to allow the EP to adjust search distances for adjoining and nearby properties. However, EPA does not explain in the proposed rule whether adhering to ASTM standard search radii has led to EPs missing information on actual or threatened releases in the past. Perhaps the EPA standard should suggest that if the data obtained using the proposed standard search distances suggest a potential threat of release from sources greater than the standard search radius, the EP should consider greater search radii for analysis and interpretation of available data.

Response: The search of government data bases is meant to provide information about nearby properties that may pose a potential concern to the property because of the properties' proximity and use. Facilities located more than a half mile or mile from the subject property may not pose threats to the subject property due to their substantial distance from the property. Therefore, rather than 455 increase the search distances for records of nearby properties, EPA would recommend, as the commenter seems to suggest, that environmental professionals only search for additional information for properties that are further away, if evidence of a release is found at the subject property and no potential sources of the release can be found after completing all of the records searches as required by the final rule.

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 8 Excerpt Text: Proposed Section 312.26( c)( 3)( i): DEQ believes that researching records of RCRA small and large quantity generators should not be limited to adjoining properties. DEQ believes that the radius of search should be one quarter mile. The potential property owner should be aware of any facilities in the area.

Response: EPA disagrees with the commenter. The final rule requires that searches of government records be performed to located RCRA large and small quantity generators at surrounding properties. It is not likely that such facilities pose substantial threats to a property if located further away from the subject property. However, EPA would recommend that environmental professionals search for additional information for properties that are further away if evidence of a release is found at the subject property and no potential sources of the release can be found after completing all of the records searches as required by the final rule.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 26 Excerpt Text: 312.26( c): When ASTM set search distances for various lists of environmental sites, it was very conservative because there was not a lot of experience of the potential effects of a listed site on a property being assessed. Since 1992 experience and studies e. g., the Lawrence Livermore petroleum effects study, have shown effects to be generally much more geographically limited ( recognizing that there are geological conditions where even 1527 distances are inadequate).

Response: The search of government data bases is meant to provide information about nearby properties that most likely could pose a potential concern to the property because of the properties' proximity and use. Facilities located more than a half mile or mile from the subject property may not pose threats to the subject property due to their substantial distance from the property. Therefore, rather than increase the search distances for records of nearby properties, EPA would recommend that environmental professionals only search for additional information for properties that are further away, if evidence of a release is found at the subject property and no potential sources of the release can be found after completing all of the records searches as 456 required by the final rule.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 29 Excerpt Text: 312.26( c)( 2)( iv): What is the concern relating to a CERCLIS NFRAP site that is further than an adjoining site away from the Property? This is giving the same weight to an NFRAP site as to an active CERCLIS site.

312.26( c)( 3)( i): add " or comparable state or tribal generators."

312.26( c)( 3)( iii): delete " registered". Many jurisdictions do not require the registration of farm or heating oil tanks but these can obviously have an effect on a property even if only an adjoining site. If the information concerning these tanks is available, it should be included.

Response: Identifying NFRAP sites and CERCLIS sites may provide the environmental professional with information regarding the location of properties where remedial actions have taken place and residual contamination may exist. The final rule requires that government records be searched for information on properties within one mile of the subject property that are NPL sites or tribal and state equivalent sites. The final rule requires that government records be searched for information on properties within one half mile of the subject property that are former CERCLIS sites with NFRAP notices.

EPA believes that the commenter's request to amend 312.26( c)( 3)( i) is not necessary because the final rule at 312.26( c)( 3)( ii) requires a search of government records for federally permitted, tribal permitted, or state permitted ( or registered) landfills and solid waste management facilities. In addition, section 312.26( c)( 4) requires a review of additional government records with regard to sites identified under 312.26 ( c)( 1) through ( c)( 3) that may be necessary in the judgment of the environmental professional to meet the objectives and performance factors.

Although releases from non registered storage tanks may affect the environmental conditions of a property, information about non registered storage tanks most likely will not be found in government data bases.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 13 Excerpt Text:  The proposed standards for reviewing federal, state, tribal and local government records.

 The proposed standards for reviewing federal, state, tribal, and local government records are 457 fairly similar to the existing ASTM standard. However, shrinking the minimum impact distance to ½ mile is more reasonable considering the likelihood of contaminant migration. Especially beneficial is allowing latitude in determining impact distances by the environmental professional. We disagree however, that reviewing actual records is not necessary. The fact that a site of concern appears on a database and is within ½ mile radius of the subject site is not proof of environmental concern. Accurate and pertinent determinations of adjacent environmental liability can only be assessed by reviewing Phase I, II, and III environmental site assessments. It is that level of detail that will more precisely characterize environmental liabilities of the site under investigation.

Response: EPA thanks the commenter for the support and information. EPA agrees that the government records search is best viewed only as a screening tool for identifying nearby properties that could impact the subject property. Once such properties are identified, additional information may need to be obtained to assess the types and extent of any impacts. Although it may be prudent for prospective property owners to undertake additional and more extensive inquiries, including Phase II and Phase III, to identify the extent of any potential impacts and ensure that once the property is purchased the property owner can comply with the statutorily imposed continuing obligations, such inquiries are beyond the scope of all appropriate inquiries. 458 <IP_ADDRESS> Search Distance for Institutional and Engineering Controls Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 12 Excerpt Text: The Review of Institutional Controls ( IC's) identified with in ½ mile of the property represents a considerable expansion of effort beyond current industry practice. Especially as the number of IC's increase with time. Most IC's are very specific to the subject properties and don't address adjacent properties. The most common form of IC is a risk based closure that allows residual contamination to remain on the property. In highly industrialized areas these IC will become plentiful. Requiring the EP to review every site specific IC identified is burdensome and likely to provide little useful information. IC review should be limited to the subject property and any adjoining properties as appropriate.

Response: The final rule requires that government records and available lists for institutional and engineering controls be searched only for information on such controls at the subject property. All appropriate inquiries investigations do not have to include searches for institutional and engineering controls in place at nearby and adjoining properties. We made this change because we agree with commenters who pointed out that information on institutional and engineering controls may be difficult to find as there are no available national sources of this information. Only a few states have available lists of institutional controls. In addition, the information that may be inferred from knowledge of institutional and engineering controls that are in place at adjoining and nearby properties, i. e., that there was a response action, a remedial action, or corrective action taken at the site, can be inferred from information obtained from other sources ( e. g., CERCLIS, RCRIS, state records of response actions).

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 4 Excerpt Text: § 312.26 ( c) ( 2) ( iii) establishes the obligation to conduct a search of registries or publicly available lists of engineering and institutional controls within one half mile of the subject property.

Comment: This is an unreasonable requirement, and one that will be impossible to achieve within a reasonable transaction schedule and budget. Presently, commercial data base vendors, such as EDR, have only limited geographical coverage on this topic. It not clear that even EDR's coverage encompasses the full range of engineering and institutional controls that could be inplace in a given area. As noted in the EPA's preamble ( FR, page 52559, Para. 6), institutional controls encompass not only environmental cleanup liens, but also zoning restrictions, building or excavation permits, well drilling prohibitions, easements and covenants. In addition, while 459 the preamble notes ( FR, page 52562, Para. 2) that the proposed rule does not require that persons obtain a chain of title, this may in fact be necessary in order to determine if a property has engineering or institutional controls in place. Clearly, the scope can be quite broad.

A one half mile radial search broadly encompasses about 5,000 acres. In an urban area, it would not be unreasonable to assume an average property size of one quarter acre. This translates to over 20,000 separate properties within the one half mile area of interest. Even if municipal records on this issue were organized by street address, the effort required to match the institutional control records against the radial area of interest is enormous. A one half mile radius might easily involve more than one jurisdiction, which only further increases the effort required to research this issue.

If you are going to impose this requirement, we recommend limiting the radius search to the subject property plus the abutting properties. A one half mile radius is unreasonable and probably of no relevance, particularly in an urban environment.

Response: The final rule requires that government records and available lists for institutional and engineering controls be searched only for information on such controls at the subject property. All appropriate inquiries investigations do not have to include searches for institutional and engineering controls in place at nearby and adjoining properties. We made this change because we agree with commenters who pointed out that information on institutional and engineering controls may be difficult to find as there are no available national sources of this information. Only a few states have available lists of institutional controls. In addition, the information that may be inferred from knowledge of institutional and engineering controls that are in place at adjoining and nearby properties, i. e., that there was a response action, a remedial action, or corrective action taken at the site, can be inferred from information obtained from other sources ( e. g., CERCLIS, RCRIS, state records of response actions).

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 17 Other Sections: MODIFIED  4.1  The impact of the rule is underestimated Excerpt Text: The requirement of § 312.26 to search registries or publicly available information for brownfield sites, engineering controls, and institutional controls is simply not feasible. Such records are typically kept in a property by property basis, e. g., recorded in title records for each property. Surely, Congress did not intend searching title records for every parcel of real estate within onehalf mile for each proposed transaction. Similarly, the Economic Impact Analysis did not include any costs to address these requirements that are above the current E 1527 00 practice. Therefore, the Analysis understates the impact of this Proposed Rule.

Response: See response to comment number 0314, excerpt 4. 460 Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 18 Excerpt Text: Lastly, remedial actions involving institutional controls and engineering controls are typically nearly completion. If the sources of contamination addressed by these measures posed a material threat to the property subject to the AAI investigation, the property would be subject to such controls. R& W requests that the EPA limit the requirement to search for records of brownfield sites, engineering controls, and institutional controls to the property that is subject to the AAI investigation.

Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: Edwards, Amy Comment Number: 0333 Excerpt Number: 2 Excerpt Text: My third comment concerns the need to search within one half mile of a site for institutional and engineering controls in registries or publicly available lists ( 312.26( c)( 2)( ii) and ( iii)). Information about institutional controls is not " readily available" at the present time in many jurisdictions, and requiring a half mile search for this information would significantly increase the cost of conducting routine environmental due diligence. I appreciate the drafters' goal of trying to increase the number of databases and registries that collect information about institutional controls; having more sources of information about institutional controls will be beneficial in the long run. In the interim, however, as these sources of information continue to evolve, I would suggest that the rule contain some kind of cautionary language that the EP and the user need to use " commercially reasonable efforts" to try to obtain this information.

Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 28 Excerpt Text: 312.26( c)( 2)(( ii and iii): What possible effect will an engineering or institutional control beyond an adjoining site have on the Property being assessed? What would be required of a property owner or buyer based on a control at a site ½ mile from the property assessed? This search distance should be limited to the property and adjoining sites. 461 Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 4 Excerpt Text: B. Records Search for Properties with Institutional Controls. Proposed section 312.26( c)( 2)( iii) requires a search of governmental records or databases to identify properties with institutional controls up to a distance of Vi mile from the subject property. Although US WAG agrees that AAI should include a search of records to identify nearby properties subject to institutional controls, we believe that searching up to V2 mile from the subject property is not necessary to protect human health and the environment. Moreover, the Vi mile requirement is considerably beyond current industry practice and will significantly increase costs with little additional useful information. It appears EPA has not considered this additional cost in the economic analysis of this proposal.

Institutional controls typically are specific to the property they affect, and as the distance to the subject property increases, the potential impact on the subject property rapidly disappears. In industrialized areas, particularly in areas targeted for Brownfields redevelopment, institutional controls are commonplace, often relating to leaking underground storage tanks, and requiring the environmental professional to review every identified institutional control within a Vi mile radius of the subject property would be highly burdensome. To be sure, proposed section 312.26( d) allows the environmental professional to modify this distance based on professional judgment and taking into account seven factors specified in the rule, but such a modification must be documented and that will make the environmental professional reluctant to exercise this discretion to modify the search distance. See 69 Fed. Reg. at 52563 64. We recommend that EPA modify the proposal rule to limit the search for institutional controls to the subject and adjoining property.

Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 7 Excerpt Text: Record searches are also expanded under the Proposed Rule. AAIs now must identify engineering and institutional controls on or within one half mile of the property ( emphasis added). Thus, traditional methods of title searching will not suffice under the Proposed Rule's standards. Engineering and institutional controls are not necessarily found in chain of title searches as these controls can be recorded by other instruments, such as land purchase contracts, easements and other agreements. Thus, potential purchasers will need to hire a title company to 462 do a full title exam, not only for the subject property but for the properties within a one half mile radius, increasing the cost greatly. Assuming an EP can identify all such controls for the subject property, how far must the EP go to find them for property within one half mile of the subject property? What relevance do controls on properties one half mile away have on the evaluation of the subject property? Given the fact that these controls will be difficult, and may be impossible to find for the subject property, not to mention properties within a one half mile radius, wouldn't it be an automatic data gap if no controls were found?

Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 4 Other Sections: NEW  4.1  The impact of the rule is underestimated Excerpt Text: Review of Industrial Controls within ½ mile of the property is a considerable expansion of the effort beyond the current industry practice that significantly increases costs without yielding information useful to the process. IC's are very specific to the properties they affect. The most common form of an institutional control is a risk based closure that allows for residual contamination to remain on site given the current site specific property use. In many areas these IC are plentiful, particularly with respect to leaking underground storage tanks. Requiring review of every site specific IC identified within ½ mile is overly burdensome, the cost of which is not factored into the economic analysis. It is recommended that the requirement be limited to searching for IC on the subject site and the adjoining properties.

Response: See response to comment number 0314, excerpt 4.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 7 Other Sections: NEW  4.1  The impact of the rule is underestimated Excerpt Text: Institutional Controls  Review of ICs identified within ½  mile of the property is a considerable expansion of effort beyond the current industry practice that significantly increases costs without yielding information useful to the process. ICs are very specific to the properties they affect. The most common form of an institutional control is a risk based closure that allows for residual contamination to remain on site given a current site specific property use. In a highly industrialized area, these ICs are plentiful, particularly with respect to leaking USTs. Requiring the EP to review every site specific IC identified within ½  mile is overly burdensome, the cost of which is not factored into the economic analysis. I recommend that the requirement be limited to searching for ICs on the subject site and adjoining properties. 463 Response: See response to comment number 0314, excerpt 4. 464 3.5.3 Government Records May Not Be Reasonably Ascertainable Commenter Organization Name: Beaver, Christine Comment Number: 0074 Excerpt Number: 4 Excerpt Text: With regard to the local agency record searches, it is my experience that the ability to obtain information is often complicated by a lack of cooperation, and creates data gaps.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f).

Commenter Organization Name: Beaver, Christine Comment Number: 0074 Excerpt Number: 5 Excerpt Text: Another example, is searching for records at the New York City Buildings Department in Queens County is such an exhaustive process ( due to the filing system, constraints on the number of files that are permitted to be reviewed at one time, and the inability to access archived records on certain days and hours) that we generally conclude under ASTM 1527 00 standards that it was not reasonably ascertainable to review these records given time and cost constraints.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f). 465 Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 7 Excerpt Text: Sec. 312.26 requires a review of government agency records. So long as the records are available electronically, or upon request of the agency under the Freedom of Information Act or other public records law requiring the agency to allow inspection of the records on demand, the burden is reasonable. The regulation, however, doesn't limit the records to those readily available. A prospective brownfield developer should not have to hire a librarian or historic documents research to paw through government files to fulfill " all appropriate inquiry" requirements.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f).

Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 Excerpt Number: 4 Excerpt Text: § 312.26 ( b) should indicate, "... should, to the extent records are available and reasonably accessible, include:"

REASON: Availability, accessibility and formatting of state and local records varies widely from one jurisdiction to another.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written 466 report of findings in compliance with § 312.20( f).

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 10 Excerpt Text: 312.26 Reviews of Federal, State, tribal and local government records This section should state what is considered to be a reasonable period time for the consultant to await information that is requested from the various federal, state, tribal, and local agencies on the basis of a site's appearance on the environmental database( s) that are reviewed. We contend that a reasonable period of time for access to the requested information is 10 business days, however, given the greater lengths of time many such agencies take to respond to information requests, it is likely that many responses, not to mention the desired information, will not be obtainable within the 10 business day period.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f).

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 10 Excerpt Text: In § 312.26 " Reviews of Federal, Tribal, State, and local government records" ( b), the requirements to review local government's records AND databases on the subject and adjoining properties are overly burdensome. The following revisions would address this concern:

( b) " With regard to the subject property, the review of federal, tribal, state, and local government records or databases of such government records and local government records and data bases of such records should include identification of the following:"

Rationale:  Local government records are generally not easily accessible or practicably reviewable; therefore, the requirement should be to review local government's records OR databases. 467  Changing the " and" to an " or" would make it consist with the language and premise of § 312.26 ( a) and ( c).

 The review of government records should be limited to the readily available information already provided in an EDR or similar reports.

Response: The final rule at § 312.26( b) requires the review of federal, tribal, and state government records or databases of such government records.

The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f).

Commenter Organization Name: Anonymous Comment Number: 0427 Excerpt Number: 1 Excerpt Text: In regards to databases required to review for a site. The records requested to be examined for each piece of property are going to increase the expense of a professional review of a property.

Tribal records for one are mostly non existent, and not easily obtainable, nor are local records always easily reviewed.

Public health records to be searched _ This is kind of open. What public health records exactly?? There are literally tons!

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f). 468 3.5.4 The Agency Should Provide More Guidance on How Best to Obtain Information about Institutional and Engineering Controls Commenter Organization Name: Edwards, Amy Comment Number: 0333 Excerpt Number: 1 Excerpt Text: The proposed AAI rule does an excellent job of establishing as one of the objectives of " all appropriate inquiries" the need to identify institutional and engineering controls as potential indications of " conditions indicative of releases or threatened releases"( 312.20( d)( 1)( v) and ( vi)). This information is important not only for satisfying the threshold step of establishing that one has conducted " all appropriate inquiries", but also in later taking " reasonable steps"  in this case, satisfying one's ongoing obligation " not to impede the effectiveness or integrity of any institutional control employed in connection with a response action" ( 69 Fed. Reg. 52559) and thereby qualifying for one or more of the " landowner liability protections" established pursuant to the Small Business Liability Relief and Brownfields Revitalization Act ( Pub. L. 107 118).

My first comment concerns the best way in which to find information about institutional and engineering controls that may have been placed on a site. The proposed rule imposes this burden upon both the environmental professional and the person commissioning the report, a requirement that I support. Information about institutional and engineering controls is not routinely requested or obtained as part of current environmental due diligence practices, even though awareness of these restrictions is critically important in ensuring their long term durability and enforceability.

The key question is how best to find this information. The proposed rule mentions, inter alia, requesting a " chain of title" report ( 312.24( a); see also 69 Fed. Reg. 52559). However, during the six years we spent crafting and later revising the ASTM E 2091 00 Standard Guide, as well as during my two years of service as an advisor to the National Conference of Commissioners on Uniform State Laws while it developed the Uniform Environmental Covenants Act, it became very clear that a routine " chain of title" report frequently will not contain information about institutional or engineering controls. It is my understanding that this practice has evolved because title companies frequently do not insure " environmental conditions", so they may not " flag" institutional or engineering controls in their " chain of title" reports. I have been advised that title companies DO have an obligation to highlight in their reports " restrictions of record on title", even when those restrictions have been recorded because of underlying environmental conditions. Thus, there appears to be a misunderstanding or lack of communication between the real estate and environmental communities in terms of how best to request this information. I would suggest that the rule provide greater guidance on how best to obtain information about institutional and engineering controls.

Based upon the conversations that I have had with representatives of title search companies and the real estate bar, it is my understanding that persons requesting information about institutional or engineering controls should let their title search company know that they are looking for 469 " restrictions of record on title". This information is also sometimes referred to as a " historical environmental title search" by some title search companies. Information about institutional controls is also routinely recorded in local land records, so the EP and the person commissioning the AAI report should be directed to check those records. Similarly, the computerized database search companies are beginning to collect this information, and a number of states are beginning to create registries to track this information, so these sources of information should be consulted as well.

My second comment concerns how to search for institutional controls that are not " restrictions of record on title". The proposed rule correctly notes that there are several different types of institutional controls, including easements and covenants ( i. e., proprietary controls), zoning, permits and orders, and well advisories. Only proprietary controls typically appear in a " chain of title" report or a " historical environmental title search" because they constitute " restrictions of record on title"; the other types of restrictions do not. Database companies and registries likewise do not typically track these other types of institutional controls. Accordingly, it will be important to define in the final rule where the EP and the purchaser must look to satisfy AAI, as these other types of institutional controls are not " readily available" at the present time. As part of a Phase I Environmental Site Assessment ( ESA) today, an EP does not typically look at the underlying Record of Decision to determine whether zoning or excavation permits might have been used as an institutional control at the site. To require that an EPA or purchaser examine the underlying administrative record to determine whether an institutional control should have been implemented at a site, as recommended by EPA's Common Elements Guide, will unnecessarily and dramatically increase the cost of AAI. I would encourage the agency to drop all such implied requirements from the final rule.

Response: EPA thanks the commenter for the information and advice on how to search for institutional controls. EPA incorporated much of the commenter's advice into the preamble for the final rule. 470 3.5.5 The Agency Should Provide the Definition of Engineering Controls Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 1 Excerpt Text: The term " engineering controls" is used throughout the standard, however it is not defined. What is the definition of " engineering controls" relative to this standard?

Response: Engineering controls are physical modifications to a property ( e. g., capping, slurry walls) to reduce or eliminate the potential for exposure to hazardous substances at the property.

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 6 Excerpt Text: It is also requested that the term " engineering controls" be defined in § 312.10. The Agency adequately discussed the nature of the term " institutional controls" on page 52559 of the preamble and defined it in § 312.10, but failed to convey exactly what the Agency's intention is for the term " engineering controls". Although the term " engineering controls" is specifically used in the proposed rule at § 312.26( c)( 2)( ii), it has not been defined and is arguably a generic term in the environmental field. Again, it would be beneficial to the regulated community to completely understand what the Agency intends by the use of this term moving forward under the final rule.

Response: Engineering controls are physical modifications to a property ( e. g., capping, slurry walls) to reduce or eliminate the potential for exposure to hazardous substances at the property. 471 3.5.6 Record Listings Should Be Replaced by Specific Government Facility Listings Commenter Organization Name: Westward Environmental Comment Number: 0429 Excerpt Number: 3 Excerpt Text: Regarding the heading of What Are the Proposed Requirements for Reviewing Federal, State, Tribal, and Local Government Records? on page 52562 of the proposed rule:

 it states " The proposed rule  would require that  government records be searched for information ".

 While we agree that these records should be identified, researching these records can be, as noted in your " For example, in the case of NPL sites " example, a very time consuming exercise that cannot be predicted at the time an EP proposes to perform an All Appropriate Inquiries project for a client.

 We would suggest that specific government facility listings [ similar to what is recommended in ASTM 1527] be part of the All Appropriate Inquiry in lieu of researching records associated with these listings as the number of facilities and the time/ effort required to perform this research would initially be unknown. The researching of records will in the vast majority of cases, require professional labor in a locality that is different ( oftentimes substantially so) than the property being evaluated.

Response: The final rule provides that if information required to meet the objectives of the all appropriate inquiries cannot be found or collected in compliance with the performance factors, which include gathering information that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can be practicably reviewed ( see § 312.20( f)( 1)), then the environmental professional should document the lack of availability of the information as a data gap. If required information cannot be found or collected in compliance with the objectives and performance factors and such information represents data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, then the data gaps and their significance should be noted in the written report of findings in compliance with § 312.20( f). 472 3.6 Visual Inspections Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 8 Excerpt Text: Requirements for on site inspections are also appropriate.

Response: EPA thanks the commenter for the stated support of the proposed requirements.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 11 Excerpt Text: 312.27 Visual inspections of the facility and of adjoining properties We support this section.

Response: EPA thanks the commenter for the stated support of this provision of the rule. 473 3.6.1 Visual Inspection of the Subject Property Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 7 Excerpt Text: Proposed standard for conducting visual inspections.

a) Page # 52580 b) View: Visual inspection of the property is one of the most critical aspects of the AAI process. It is vital to inspect all areas of the Subject and inside all Subject Buildings. Without such complete access and inspection the AAI process should be considered incomplete. At a minimum the property should be inspected from all sides from the adjoining properties. However this should not be considered adequate and the EP should make recommendations that a re inspection with full and complete access should be conducted. Inability to access the property should be qualified and provide an opinion on relevance.

c) Assumptions: Without full and complete access of the property, AAI cannot be properly achieved. The following risks could be easily overlooked; internal floor drains, hazardous waste storage, chemical staining, chemical spillage, exterior signs of USTs ( i. e. vent pipes), surface staining, stressed vegetation, etc.

d) Burden: This should not place an unreasonable burden on the EP. This is a main part of any Phase I.

Response: EPA thanks the commenter for the stated support and input regarding this provision of the rule. 474 <IP_ADDRESS> The Agency Should Clarify Whether the Visual Site Inspection Must Be Performed by an EP Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 6 Excerpt Text: Can someone under the supervision of the environmental professional perform a site visit? § 312.27( a) is not clear on the personnel requirement of the site visit.

Response: Yes. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA only recommends that this task be performed by an environmental professional.

Commenter Organization Name: Roeser, Daniel Comment Number: 0249 Excerpt Number: 5 Excerpt Text: Visual Inspections of the facility and adjoining properties.

Along with review of results and developing conclusions, the site inspection is one of the most important elements of AAI. It is a key inquiry task requiring the breadth of education, experience, and judgment of an EP to recognize the variety of physical and visual evidence that may indicate a release or threat of release. This evidence, generally visible in nature, is very difficult to accurately and effectively transfer to a non participating third party ( i. e. the EP) for effective evaluation and/ or quality assurance. Therefore, I strongly recommend that the EP be required by the rules to perform, not just supervise, the site inspections.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: CES Comment Number: 0262 475 Excerpt Number: 1 Excerpt Text: Nearly all of the discrepancies between what the EPA requires of the ASTM E1527 document and the proposed regulation have been met. The ASTM E50 Committee and the EPA have developed a strong definition of an environmental professional ( EP), however, a key area of weakness in CERCLA defense remains: the involvement of the EP in conducting the on site visual inspection ( site reconnaissance).

The proposed regulation states in strong language that the EPA highly recommends that the EP be involved in the on site and adjacent site reconnaissance when conducting AAI, but falls short in specifying that involvement. The proposed regulation states that the EP should be, at a minimum, involved in the " planning" of the site reconnaissance. If this language were to stand, there will be no net change between what is currently in ASTM E1527 00 and what will occur when 40 CFR § 312 takes effect. Approximately 95% of all Recognized Environmental Conditions ( REC) are identified during the site reconnaissance portion of the Phase I ESA, and only 5% are discovered during the historical research and property records review.

CES has conducted Phase I ESAs since 1990, and are intimately familiar with the work products and practices of our industry. There are usually 15 20 key areas of a company that requires evaluation when conducting a Phase I ESA. This number increases based on the complexity of the process or the size of the structure. An experienced individual is required to identify the byproducts of a particular process, what wastes are generated, and where shortcuts would be made by a company trying to avoid financial responsibilities in the due diligence process. The language, as it is proposed, will continue the practice conducting the Phase I ESA and conducting AAI under 40 CFR § 312 without the full benefit of the EP being involved in the key components of the process. There are two primary methodologies for conducting a Phase I ESA: real estate agents, brokers and/ or landowners preparing the report, or selecting a consulting firm to write the report. The definition of " planning" will be met if the real estate agent/ broker and/ or landowner conducts the Phase I ESA and provides a copy to an EP for review. This is unacceptable as the broker/ agent/ landowner is not qualified to identify an REC, and the EP will also not identify the REC since they are relying on information provided to them by the preparer of the report. Similarly, a consulting firm will rely on less experienced staff to conduct the site reconnaissance and prepare the report, with the EP ( usually a project manager) reviewing the report. Again, the EP is looking through the eyes of the preparer of the report, and will not be able to identify things that the inexperienced personnel missed. Both of these examples will meet the definition of " planning" as identified in the proposed regulation.

CES recommends that the " planning" requirement be lifted from the regulation, and is replaced with language that requires the EP be on site with the individual tasked with the responsibility for preparing the report. The site reconnaissance typically requires 1 3 hours to conduct in 90% of properties depending on complexity, and will not negatively impact the profitability of those conducting the Phase I ESA or the AAI inquiry under 40 CFR § 312. Secondly, by having a provision for State certified EP programs, there will be no need for a professional engineer or geologist on site which also contributes to increased costs. Junior staffers in consulting firms and brokers/ agents with three years experience that have been certified by a State program will 476 meet the definition of an EP, and will be qualified to either accompany a non EP to the site reconnaissance and oversee its completion or conduct the investigation on their own.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 5 Excerpt Text: The preamble strongly suggests in several places ( including FR, page 52565) that an EP must conduct at least the site inspection; however it also states ( FR, page 52565, last paragraph) that it would be sufficient for an EP to be involved in the planning of a site inspection.

Comment: We strongly encourage you to specifically define those aspects of the site investigation that must be performed by an EP. The proposed rule is not clear on this issue. While we are in support of an EP being involved in the assessment process, we also feel that the EP should supervise and sign off on the document, but not necessarily be obligated to perform any one step of the investigative process. In addition, the implication of the EP performing the site inspection, but not necessarily any other portion of the assessment, would result in fragmenting the investigation between multiple people. In our experience, this multi person staffing approach leads to a greater potential for important information to be lost or misinterpreted, and for conflicts between what is seen, and what the research indicates, to go unresolved. A single investigator who not only conducts the records research, but also performs the site inspection and interviews with facility personnel is the preferred approach.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: McKerr, Thomas 477 Comment Number: 0347 Excerpt Number: 13 Excerpt Text: Role of the Environmental Professional in the Visual Inspection. The preamble states that " It is EPA's recommendation that the visual inspections of the subject property and adjoining properties be conducted by an individual who meets the proposed regulatory definition of an environmental professional." Why does section 312.27 fink out? If the EP does not personally perform the site inspection and can justify it, then require the EP to state the justification and explain why the property inspector that did the inspection was qualified.. 312.27: If any aspect of the AAI requires the personal experience of the Environmental Professional, this is it. Leave an " out": if the Environmental Professional is not the actual inspector, he/ she should explain why not and also explain why the person that actually did the site inspection was qualified to do so. The rule proposes that releases that " generally would not pose a threat to human health or the environment" can be excluded but this is strictly dependent of the judgment of the Environmental Professional. How can this be done properly if he/ she is not there?

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Potter and Adams Comment Number: 0351 Excerpt Number: 3 Excerpt Text: Please clarify whether the EP must conduct the site visit. Section 312.10( b)( 5) does allow a person not meeting the definition of EP to assist in the conduct of AAI when under the supervision or responsible charge of an EP. This idea is supported in the Preamble section III. K. 3., however, this section of the Preamble also clearly states that EPA recommends the visual inspection be conducted by an EP. Clarification on this matter is requested, in light of the litigious nature of the assessment industry. As noted below, the incremental cost increase of requiring site visits to be conducted by the EP is not accounted for in the cost analysis.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of 478 environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Terracon Comment Number: 0355 Excerpt Number: 1 Excerpt Text: The proposed 40CFR part 312.27 requires that the inquiry of the environmental professional must include a visual inspection of the facility and adjoining properties. The inquiry of the environmental professional is defined at 312.21 as " by an environmental professional, or conducted under the supervision or responsible charge of, an environmental professional?". Therefore, the proposed rule allows the visual inspection to be conducted by either the environmental professional or someone acting under the supervision or responsible charge of an environmental professional. In our view, the proposed rule relies on the judgement of the environmental professional how the visual inspection should be conducted. We agree with the proposed rule as written and believe it is consistent with the statutory requirements of all appropriate inquiries. However, in the preamble to the proposed rule, the EPA recommends that visual inspections be conducted by individuals who meet the proposed regulatory definition of an environmental professional. Additionally, the EPA infers that individuals other than environmental professionals may not conduct " sufficient and accurate" environmental inspections. Furthermore, the EPA argues that the environmental professional conducting the visual inspection is " vital" to the process. We believe that the EPA's comments within the preamble are inconsistent and contradictory to the proposed regulation. By making such strong statements and recommendations, the EPA is in effect imposing a requirement that is not promulgated in the proposed regulation. The EPA should clearly state within the preamble of the final rule that an environmental professional is not required to conduct the visual inspection and it is solely up to the judgement of the environmental professional as to who conducts the visual inspection.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA clearly states that the on site visual inspection does not have to be conducted by the environmental professional.

Commenter Organization Name: Osuch, Debra Comment Number: 0365 Excerpt Number: 2 479 Excerpt Text: 312.27 Visual Inspections of the facility and adjoining properties.

The site inspection is one of the most important elements of AAI. It is a key inquiry task requiring the experience and judgment of an Environmental Professional. Therefore, I recommend that the Environmental Professional be required by the rules to perform, not just supervise, the site inspections.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 9 Excerpt Text: Role of the Environmental Professional in the On Site Visual Inspection of the Property. Although visual inspection of the subject and adjoining properties is the responsibility of the environmental professional ( as defined in proposed section 312.10), EPA recognizes that "[ a] person who does not qualify as an environmental professional . . . may assist in the conduct of all appropriate inquiries .. . if such person is under the supervision or responsible charge of a person meeting the definition of an environmental professional. . . when conducting such activities." Proposed section 312.10( b)( 5). US WAG agrees with EPA that the visual inspection need not be conducted solely by the environmental professional but may " be conducted under the supervision or responsible charge of an environmental professional." 69 Fed. Reg. at 52565. This is consistent with other recent EPA regulations that assign ultimate responsibility to a professional but allow the professional's agent to conduct the site visit. See, e. g., 40 C. F. R § 112.3( d)( l)( ii); 67 Fed. Reg. 47042, 47054 ( July 17, 2002) ( requiring SPCC plan to contain an attestation that a professional engineer or his agent visited and examined the facility). EPA should confirm that " under the supervision or responsible charge" does not require the physical presence of the environmental professional.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of 480 environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA clearly states that the on site visual inspection does not have to be conducted by the environmental professional.

Commenter Organization Name: Kehres Comment Number: 0395 Excerpt Number: 3 Excerpt Text: Along with review of results and development of conclusions, the site inspection is one of the most important elements of AAI. It is a key inquiry task requiring the breadth of education, experience, and judgment of an EP to recognize the variety of physical and visual evidence that may indicate a release or threat of release. This evidence, generally visible in nature, is very difficult to accurately and effectively transfer to a nonparticipating third party ( i. e. the EP) for effective evaluation and/ or quality assurance.

Therefore, I strongly recommend that the EP be required by the rules to perform, not just supervise the site inspections.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Andrews, Douglas Comment Number: 0399 Excerpt Number: 4 Excerpt Text: 2. 312.27 Visual Inspections of the facility and adjoining properties.

Along with review of results and development of conclusions, the site inspection is one of the most important elements of AAI. It is a key inquiry task requiring the breadth of education, experience, and judgment of an EP to recognize the variety of physical and visual evidence that may indicate a release or threat of release. This evidence, generally visible in nature, is very difficult to accurately and effectively transfer to a non participating third party ( i. e. the EP) for effective evaluation and/ or quality assurance. Therefore, I strongly recommend that the EP be required by the rules to perform, not just supervise, the site inspections. 481 Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 16 Excerpt Text: EP Should do the Site Inspection.

a) Page # 52565 b) View: The Goal of AAI is to increase quality of the Phase I, not to shortcut the process. The site inspection must be conducted by the EP, as they have the experience to properly evaluate the property and risks. Current field practices often send junior employees out to conduct the site inspection and draft the basic Phase I report. This is a function of time and money. Senior employees are often bound by time constraints, and not available to complete each Phase I, and junior employees are expensed at a lower overhead. This practice does not increase the quality of the Phase I report, achieve the objectives of AAI, and is prone to more mistakes being missed in the Phase I process by unqualified staff.

c) Assumptions: The EP is narrowly defined within this proposal to qualify individuals to conduct Phase I reports. If the purchaser needs to rely on the Phase I to prove in court they conducted AAI, the Site Inspection should be performed by an EP. Anything less will not assure the EP has complete knowledge and involvement in the process, and would negate the relevance of their signature.

d) Burden: Having EP's conduct the Site Inspection of the Phase I will increase quality and cost.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. 482 Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 2 Excerpt Text: Requiring an Environmental Professional to personally perform a site visit will add more than EPA's projected $ 539. Since an EP in training requires from 3 to 5 years experience, almost all site visits will now have to be perform by a minimum of 2 persons, the EP and the EP in training so that the EP in training can obtain the required experience.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Tramm, Kenneth Comment Number: 0425 Excerpt Number: 1 Excerpt Text: The proposed 40CFR part 312.27 requires that the inquiry of the environmental professional must include a visual inspection of the facility and adjoining properties. The inquiry of the environmental professional is defined at 312.21 as ". by an environmental professional, or conducted under the supervision or responsible charge of, an environmental professional.".

Therefore, the proposed rule allows the visual inspection to be conducted by either the environmental professional or someone acting under the supervision or responsible charge of an environmental professional. In our view, the proposed rule relies on the judgement of the environmental professional how the visual inspection should be conducted. We agree with the proposed rule as written and believe it is consistent with the statutory requirements of all appropriate inquiries. However, in the preamble to the proposed rule, the EPA recommends that visual inspections be conducted by individuals who meet the proposed regulatory definition of an environmental professional. Additionally, the EPA infers that individuals other than environmental professionals may not conduct " sufficient and accurate" environmental inspections. Furthermore, the EPA argues that the environmental professional conducting the visual inspection is " vital" to the process. We believe that the EPA's comments within the preamble are inconsistent and contradictory to the proposed regulation. By making such strong statements and recommendations, the EPA is in effect imposing a requirement that is not promulgated in the proposed regulation. The EPA should clearly state within the preamble of the final rule that an environmental professional is not required to conduct the visual inspection and 483 it is solely up to the judgement of the environmental professional as to who conducts the visual inspection.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA clearly states that the on site visual inspection does not have to be conducted by the environmental professional.

Commenter Organization Name: Hoskins, Herbert Comment Number: 0428 Excerpt Number: 3 Excerpt Text: Along with review of results and development of conclusions, the site inspection is one of the most important elements of AAI. It is a key inquiry task requiring the breadth of education, experience, and judgment of an EP to recognize the variety of physical and visual evidence that may indicate a release or threat of release. This evidence, generally visible in nature, is very difficult to accurately and effectively transfer to a non participating third party ( i. e. the EP) for effective evaluation and/ or quality assurance. Therefore, I strongly recommend that the EP be required by the rules to perform, not just supervise, the site inspections.

Response: EPA appreciates the commenter's input. EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property.

Commenter Organization Name: Haley and Aldrich Comment Number: 0432 Excerpt Number: 3 Excerpt Text: We also concur that environmental professional does not have to do all of the work, just oversee and design the assessment; however, it is EPAs " recommendation" that visual inspections of the subject property and adjoing properties actually be conducted by an environmental professional. 484 We agree that the person conducting the site visit should have adequate education and experience but we disagree that, in the case of the site visit, five years of experience is required. Although it is only EPA's " recommendation" that the EP conduct the site visit, we feel that in order to adequately follow the AAI rule, you would need to follow EPA's " recommendations". In addition, although the Preamble states that it is just the " recommendation" of EPA that the EP conduct the site visit, under the actual rule in section 312.27 which describes the site visit, it states: " the inquiry of the environmental professional must include " indicating it is the EP who must conduct the site visit. We propose instead that two years of relevant experience be required for the person conducting the site visit and that the environmental professional be involved in planning for the on site visual inspection.

Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA clearly states that the on site visual inspection does not have to be conducted by the environmental professional.

Commenter Organization Name: Dismukes, James Comment Number: PM 0127 0012 Excerpt Number: 1 Excerpt Text: I think there's a conflict in the portion of the documentation that calls for an environmental professional to do the visual site visit, in one paragraph, and in the following paragraph, it calls that the environmental professional should at a minimum be involved in the planning of the site visit.

I think that needs to be clarified, as to whether or not the environmental professional himself or themselves, will be required to do the visual site inspection.

Typically, that's done by a technician type person, and the findings, along with the pictures, are brought back to be reviewed by the environmental professional under the environmental professional's responsible charge.

Requiring a professional engineer, a professional geologist to spend five hours to drive to the site, do the inspection, take the pictures, do a site sketches, it's going to add tremendously to the cost of the Phase I. Your proposed $ 41 to $ 47 would be more like $ 400 to $ 600, increasing the cost of the Phase I. 485 Response: EPA continues to recommend that an individual meeting the definition of an environmental professional conduct the on site visual inspection. However, based upon input from other commenters and the Agency's concerns regarding the burden that may be placed upon some prospective property owners, the final rule does not require that the on site visual inspection be performed by an environmental professional. An individual not meeting the definition of environmental professional but under the supervision or responsible charge of an environmental professional may perform the on site visual inspection of the subject property. In the preamble to the final rule EPA clearly states that the on site visual inspection does not have to be conducted by the environmental professional. 486 <IP_ADDRESS> Visual Inspection of Very Large Properties Commenter Organization Name: R. W. Beck, Inc. Comment Number: 0247 Excerpt Number: 1 Excerpt Text: The proposed rule requires that visual on site inspections include " areas where hazardous substances may be or may have been used, stored, treated, handled, or disposed." Certain Phase I ESAs that we have performed have been conducted for very large properties, on the order of 100,000 acres or more. These properties may be remote, do not usually have restricting physical limitations to visual inspection ( except for snow or impassable roads), but are so large as to make close visual inspection impractical, or impossible in terms of the time constraints imposed for providing useful information to the prospective purchaser. Such properties ( in the case of timber property) have reasonable access to areas where hazardous substances may have been used ( e. g., new or old timber roads to recent or historical large scale timbering operations). However, roads can be so numerous, that again, visual inspection of all roads ( and the adjacent areas where hazardous substances were used in the timbering operation) is neither practical, nor possible in terms of time constraints. Further, it would not be unusual for such a 100,000 acre property, that the legal boundary with adjoining properties can approach 80 or more linear miles, often in remote, or inaccessible areas. Therefore, while " every effort" would be made to conduct the onsite inspection for AAI purposes, it is not clear what level of visual inspection is required for a property of such large proportion, in order to meet the AAI standard. To date, such efforts have been performed via helicopter ( which does not allow a close visual inspection), 4 wheel drive access, or walking ( to specific areas of concern). The EPA should provide additional clarification of the term " visual inspection", especially at very large properties.

Response: The final rule, as did the proposed rule, requires that an on site visual inspection be conducted of the subject property. The on site visual inspection must include a visual inspection of the areas where hazardous substances may be or may have been used, stored, treated, handled, or disposed. The final rule requires that physical limitations to the visual inspection must be noted, including limitations such as those mentioned by the commenter.

The final rule provides a limited exemption from the on site visual inspection in the unusual circumstances where the prospective property owner or environmental professional cannot gain access to the property due to physical limitations, remote and inaccessible location, or other inability to obtain access to the property. In such circumstances, a visual inspection must be conducted from an " off site" vantage point. Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful should be noted in the written report.

EPA understands that visual inspections of large properties may be difficult. However, the Agency advises that every effort should be made to visually inspect those areas where hazardous substances may be or may have been used, stored, treated, handled, or disposed. The prospective 487 property owner must be aware of any releases or threatened releases from these areas to ensure that if he or she purchases the property he or she can comply with the statutorily imposed continuing obligations to retain protection from CERCLA liability. 488 3.6.2 Limited Exemption from Conducting an On Site Inspection of the Subject Property Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 14 Excerpt Text: This good faith exception appears to be an extraneous provision for very limited circumstances. It is subject to misinterpretation concerning the satisfaction of good faith effort. It would better be handled as a data gap under the current AAI rule or as a limitation under the current ASTM practice.

Response: The definition of good faith in the final rule is " the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill one's obligations in the conduct or transaction concerned." EPA believes that this sets a high standard for the limited exemption to the requirement to perform an on site visual inspection of the subject property.

The final rule provides a limited exemption from the on site visual inspection only in the unusual circumstances where the prospective property owner or environmental professional cannot gain access to the property due to physical limitations, remote and inaccessible location, or other inability to obtain access to the property. In such circumstances, a visual inspection must be conducted from an " off site" vantage point. Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful should be noted in the written report. These requirements are similar to the requirements to document data gaps.

Commenter Organization Name: PIRG Comment Number: 0258 Excerpt Number: 6 Excerpt Text: 2. Unauthorized Broad and Vague Exceptions to Site Inspection Requirements Section 223 of the Brownfields law requires that AAI rules must include:

( VI) Visual inspections of the facility and of adjoining properties.

The 97 ASTM standards also requires visual inspections and sets forth detailed criteria on how those inspections are to be conducted. Limitations on site reconnaissance are limited to things like physical barriers, such as bodies of water or pavement.

The proposed final draft AAI rules in section 312.27 contain several different exceptions to the visual inspection requirement. These broad and vague exceptions are an invitation to abuse, and the exceptions include the inability to obtain access to the property provided good faith efforts 489 have been made to obtain such access. The mere refusal of a voluntary seller does not qualify for the exception but this provides little protection. The Brownfields law does not authorize this exception, period.

These exceptions cut a hole in one of the most critical requirements in the Brownfields law. The site inspection is often one of the most important ways that the condition of a property can be assessed and information brought to light that may not have come to the attention of regulators. Providing broad and vague exceptions to the site inspection requirement make it much more likely sites will not be inspected. This would allow the seller to receive an inflated purchase price and potentially put those profits out of reach for cleanup costs. At the same time, the unsuspecting purchaser can end up with a contaminated property that may be difficult to manage. This property may be unusable for its planned purpose because of circumstances that may have been easily discoverable upon inspection.

At the same time, despite less than adequate investigation, the purchaser may obtain an exemption from liability without taking steps to address the contamination as is usually required in the Brownfields Law. A purchaser will simply claim it was not reasonable to expect such steps to be taken because they " did not know" about the problem. The result is that the taxpayer is more likely to be left to clean up the site.

Response: EPA disagrees with the commenter. The final rule provides a very limited exemption from the requirement to perform an on site visual inspection for unusual circumstances and only after all " good faith" efforts are made to gain access to a property. The limited exemption only exempts the prospective property owner ( or grantee) and environmental professional from performing the visual inspection " on site." In ALL cases, a visual inspection must be performed.

More explicitly, the final rule provides a limited exemption from the on site visual inspection only in the unusual circumstances where the prospective property owner or environmental professional cannot gain access to the property due to physical limitations, remote and inaccessible location, or other inability to obtain access to the property. In such circumstances, a visual inspection must be conducted from an " off site" vantage point. Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful should be noted in the written report. These requirements are similar to the requirements to document data gaps.

The definition of good faith in the final rule is " the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill one's obligations in the conduct or transaction concerned." EPA believes that this sets a high standard for the limited exemption to the requirement to perform an on site visual inspection of the subject property.

EPA asserts that the commenter is incorrect in stating that " despite less than adequate investigation, the purchaser may obtain an exemption from liability without taking steps to address the contamination as is usually required in the Brownfields Amendments. The Small 490 Business Liability Relief and Brownfields Revitalization Act ( the " Brownfields Amendments") establishes many conditions with which a property owner must comply to obtain protection from CERCLA liability. The conduct of all appropriate inquiries is merely an initial, pre acquisition, requirement for obtaining liability protection. Once a person owns a property, he or she must comply with continuing obligations, including stopping on going releases and taking appropriate care to reduce exposure to releases and threatened releases of hazardous substances. A person cannot simply claim he or she is not responsible or did not know of the contamination. Innocent landowners and contiguous property owners must establish in a court that they did not know and had no reason to know of contamination. Bona fide prospective purchasers may buy property with the knowledge of contamination, but must identify the contamination prior to purchase.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 19 Excerpt Text: The Pre Amble states, " The mere refusal of a voluntary seller to provide access to the subject property does not constitute an unusual circumstance." While R& W acknowledges a voluntary seller should readily provide access, if this is not the case, does the EPA expect an EP to trespass and violate the law? R& W requests that the EPA eliminate this statement or provide clarification that trespassing is not the intent of this statement.

Response: Prospective property owners and grantees should undertake additional steps, whenever possible, to gain access to a property to conduct all appropriate inquiries, if the current property owner initially refuses access. For example, prospective property owners and grantees should seek the assistance of local and state government officials.

Commenter Organization Name: Congressmen Dingell, Boxer, et al Comment Number: 0332 Excerpt Number: 5 Excerpt Text: Section 101( 35)( B) of CERCLA as amended by section 223 of the Brownfields law also requires that the standards and practices established in the AAI rule shall include visual inspections of the facility and the adjoining properties. Under Section 312.27 of the proposed AAI rule, EPA proposes unauthorized and ill advised exemptions to this requirement. Actual visual inspection of a facility is central to every environmental inquiry. Interestingly, EPA acknowledges this fact in the preamble to the proposed AAI rule. " The visual on site inspection of a property during the conduct of all appropriate inquiries may be the most important aspect of the inquiries and the primary source of information regarding the environmental conditions on the property" ( 69 Federal Register 52564). Despite this acknowledgment, and the express condition in the Brownfields law, EPA provides unauthorized and potentially broad exemptions to this requirement. 491 Exemptions include weather, the location of the property, and refusal by the seller to allow access despite good faith efforts by the purchaser. The opportunity for mischief is great. An owner's refusal to allow access is a red flag in any transaction, and without inspection, the risk that contamination will go undiscovered is unacceptably high. Anyone can still purchase a property under these circumstances, but to grant a waiver from liability or to provide other federal benefits without an inspection does not reflect the core principles of the Brownfields law  that environmental protection and polluter pay principles not be sacrificed. EPA's proposal to limit inspections of adjoining properties is also not authorized by the law.

Again, if contamination goes undiscovered, a seller who has refused entry on the property may profit from the lack of disclosure and put the profits out of reach before the problem is discovered. The property may not be suitable for redevelopment, and it may not qualify as a Brownfields site where that is an issue, though it may be treated as one by the parties. Purchasers may also argue that they are entitled to environmental liability exemptions without taking reasonable steps required by the statute to mitigate the contamination, as long as they do not discover the contamination. In fact, in EPA Interim Guidance issued on March 6, 2003, on Limitations on CERCLA Liability, EPA finds that "[ k] nowledge of contamination and the opportunity to plan prior to purchase should be factors in evaluating what are reasonable steps" ( p. 11). Thus, a party that does not find contamination is potentially rewarded because it would not be reasonable to require that they take steps to address contamination when they do not know about it.

Clearly, the exemptions from site inspections provide an opportunity for parties to make it easier to satisfy the AAI standard, and if they satisfy the other statutory requirements, they escape liability. Thus, a party that never does an adequate inquiry may allow the contamination to go unaddressed indefinitely, potentially without liability. We recognize that this will not happen in every case and that multiple factors must be satisfied before liability relief is granted. Nevertheless, to allow such a minimum standard for AAI undermines an important safeguard against abuse of the liability exemption.

Response: The final rule, as did the proposed rule, provides no exemption from the visual inspection requirement. In very limited circumstances, the final rule provides an exemption from the requirement to conduct the visual inspection on site. The final rule provides a limited exemption from the on site visual inspection only in the unusual circumstances where the prospective property owner or environmental professional cannot gain access to the property due to physical limitations, remote and inaccessible location, or other inability to obtain access to the property. In such circumstances, a visual inspection must be conducted from an " off site" vantage point. Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful should be noted in the written report. These requirements are similar to the requirements to document data gaps.

The commenter is incorrect in asserting that the conduct of all appropriate inquiries ( with or without an on site visual inspection) results in waiver from liability. The Small Business Liability Relief and Brownfields Revitalization Act ( the " Brownfields Amendments") establishes 492 many conditions with which a property owner must comply to obtain protection from CERCLA liability. The conduct of all appropriate inquiries is merely an initial, pre acquisition, requirement for obtaining liability protection. Once a person owns a property, he or she must comply with continuing obligations, including stopping on going releases and taking appropriate care to reduce exposure to releases and threatened releases of hazardous substances. A person cannot simply claim he or she is not responsible or did not know of the contamination. Innocent landowners and contiguous property owners must establish in a court that they did not know and had no reason to know of contamination. Bona fide prospective purchasers may buy property with the knowledge of contamination, but must identify the contamination prior to purchase. In addition, the Brownfields Amendments provides no liability protections for sellers of contaminated properties.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 10 Excerpt Text: Inability to Gain Access to the Subject Property to Conduct Visual Inspection of the Subject Property Prior to Acquisition. We are generally in agreement with EPA's resolution of the unusual circumstance where the purchaser is unable to gain access to the property prior to acquisition. See proposed section 312.27( c); 69 Fed. Reg. at 52564 65. US WAG believes that once the purchaser has made reasonable efforts to gain access, embodied in the phrase " good faith ( as defined in § 312.10) efforts", the purchaser should not lose his eligibility for CERCLA liability protections.

Response: If, after taking all good faith efforts, a prospective landowner or grantee cannot gain access to a property, then the environmental professional must conduct the visual inspection from another vantage point. In addition, documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful must be noted in the written report. Also, if data gaps result because access could not be gained, the data gaps and their significance must be noted in the written report. EPA notes that the mere failure to gain access to a property to conduct an on site visual inspection should not result in a purchaser ( or grantee) losing his or her eligibility for the CERCLA liability protections, as long as he or she is in compliance with the other statutory requirements for obtaining protection from liability.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 15 Excerpt Text:  The proposed requirements for conducting visual inspections of the subject property and adjoining properties, including the limited exemption from conducting an on site inspection when good faith efforts result in an inability to obtain access to a property. 493  The proposed requirement echoes existing standards for conducting a visual reconnaissance of a subject property. However, Intertox disagrees that the onsite inspection can provide the best source of information. At best the onsite inspection reveals indications of environmental conditions on a specific day and point in time and may, provided the environmental professional makes inquiries, reveal documents of interest. But more generally, the on site inspection is a " snap shot in time" and must be supplemented with historical resources such as fire insurance maps, city directories, and aerial photographs. It is critical that good faith efforts be made to visually inspect the subject property, however, Intertox recognizes certain limitations ( i. e., weather, violent animals, and disgruntled property owners, operators, and occupants) may prevent this. Therefore, we disagree that the mere refusal of a property owner does not constitute an unusual circumstance. It is our experience that the personal safety of the assessors is more important than the outcome of the all appropriate inquiry and we support refusal to allow entry as an unusual circumstance.

Response: Prospective property owners and grantees should undertake additional steps, whenever possible, to gain access to a property to conduct all appropriate inquiries, if the current property owner initially refuses access. For example, prospective property owners and grantees should seek the assistance of local and state government officials.

Commenter Organization Name: Sierra Club & NET Comment Number: 0419 Excerpt Number: 3 Excerpt Text:  The Proposed AAI Rule Contains Loopholes That Allow Site Inspections to Be Avoided Altogether Before Sale Or Transfer Of A Property Section 312.27 of the proposed AAI rule contains several vague exceptions to the visual inspection requirements in Section 223 of the Brownfields Law. The Brownfields Law contains no such exceptions. Visual inspection is at the very heart of any environmental inquiry. Without a site inspection by qualified personnel, environmental problems can remain undiscovered  allowing the seller to get a higher purchase price and potentially keeping the purchaser in the dark on the condition of a property which may grow worse overtime.

The proposed AAI rule will encourage purchasers to argue they have no duty to mitigate contamination that is not documented in the AAI inquiry while retaining a liability exemption and making it less likely that contamination will be identified or mitigated by the purchaser as anticipated by the Brownfields Law.

Response: The final rule, as did the proposed rule, provides no exemption from the visual inspection requirement. In very limited circumstances, the final rule provides an exemption from the requirement to conduct the visual inspection on site. The final rule provides a limited exemption from the on site visual inspection only in the unusual circumstances where the prospective 494 property owner or environmental professional cannot gain access to the property due to physical limitations, remote and inaccessible location, or other inability to obtain access to the property. In such circumstances, a visual inspection must be conducted from an " off site" vantage point. Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful should be noted in the written report. These requirements are similar to the requirements to document data gaps.