Response: EPA points out that the environmental professional need not specifically identify, in the written report prepared pursuant to § 312.21( c), extremely small quantities or amounts of contaminants, so long as the contaminants generally would not pose a threat to human health or the environment. However, small quantities of hazardous substances that may pose a threat to human health and the environment, if released to the environment must be identified and documented.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 20 Excerpt Text: 312.20( g): I know that regulators object to the definition of de minimis in 1527, but it is better than " generally would not pose a threat to human health or the environment", which is very vague and undefined. The Environmental Professional should be qualified to decide if something is not likely to raise the concern of a regulator, recognizing that there is no guaranty ( I am familiar with a California EPA/ DTSC requiring additional investigation at a property, based on a 591 10 year old report that described a situation that would have been de minimis at the time and for which there were no current indications of a release, but that was an attempt to shake down the property owner for a regional problem for which there were no other available responsible parties).

Response: EPA points out that the environmental professional need not specifically identify, in the written report prepared pursuant to § 312.21( c), extremely small quantities or amounts of contaminants, so long as the contaminants generally would not pose a threat to human health or the environment. However, small quantities of hazardous substances that may pose a threat to human health and the environment, if released to the environment must be identified and documented.

The Agency is comfortable with the current language as it expresses the intent of the statute accurately. In addition, the nature of a performance standard based rule is a lack of bright line directives. Some aspects of the investigation are left to the discretion of the environmental professional. This provides for flexible solutions to unique and site specific situations. 592 3.11.2 Controlled Substances Commenter Organization Name: Zutz Comment Number: 0104 Excerpt Number: 1 Excerpt Text: This section requires investigations " to identify conditions indicative of releases... releases and threatened releases of" pollutants and contaminates, petroleum or petroleum products, and controlled substances. It appears that controlled substances could be either legal and illegal.

We take exception to including investigation for controlled substances. It is our opinion that the ramifications of this proposed rule have not been fully considered. To meet the rule as written, an investigation would need to include a vegetation survey of each property to identify marijuana, poppies, mushrooms or certain other plants. It is our opinion that most of the current environmental professionals lack the experience, knowledge, or training to conduct such an investigation. It would also be cost prohibitive and perhaps literally impossible to conduct a vegetation survey on large parcels.

Is the intent of this investigation to identify current or former meth labs? If so, the raw components or by products that may be used in the meth manufacturing process would be identified as a hazardous substance ( although perhaps at de minimus levels).

Consider these properties and associated questions

Land with unpaved areas  If native marijuana is identified growing on a property, is the presence a " threatened release"? If native marijuana is cut by a lawn mower, is it a " release" to the land surface? Soil Borings ° Construction Materials Testing ° Monitoring Wells Residential properties  Would current or expired legal drug prescriptions be considered de minimus? What inquiry should be done for potential illegal controlled substances? Provided they had actual knowledge, is it likely that a current or former owner or occupant would voluntarily admit that illegal controlled substances were present?

Landfills  While there is potential for current or past disposal of drugs from manufacturing, what records would there be to review for normal household or commercial disposal?

Hospitals, nursing homes, pharmacies, wastewater treatment plants  There is potential for sewer disposal of unused Pharmaceuticals or illegal drugs. However, what inquiry could or should be done?

It appears that investigation for controlled substances should be left to the discretion of the environmental professional for those few facilities that may have significant drugs, such as pharmaceutical manufacturing or distribution facilities. 593 We believe this section puts a significant and unnecessary burden on the environmental professional with a very low likelihood of significant findings. Therefore, we suggest that investigation for controlled substances be deleted from the final rule.

Response: The scope of the all appropriate inquiries regulation as it applies the persons conducting the investigations to obtain protection from CERCLA liability is limited to identifying conditions indicative of releases and threatened releases of hazardous substances, as defined under Section 101( 14) of CERCLA. Under CERCLA, liability is extended only to releases and threatened releases of hazardous substances.

In those instances where a government entity receives a brownfields grant from EPA under the authorities of CERCLA section 104( k)( 2) and the grant or cooperative agreement specifies that the site characterization and assessment to be funded by the grant covers additional contaminants, pollutants, petroleum, petroleum products, or controlled substances, then the scope of the all appropriate inquiries investigation must include these additional substances.

Commenter Organization Name: anonymous institution Comment Number: 0315 Excerpt Number: 1 Excerpt Text: The Proposed AAI Rule will require the investigation into the presence of " controlled substances". A review of the Drug Enforcement Agency's website lists thousands of controlled substances including, narcotics, pharmaceuticals, steroids, tobacco, etc. A specific list of controlled substances is not provided in the proposed Rule. Despite this, it is our understanding that Superfund liability does not arise from the mere presence of controlled substances, as such, why is this topic included at all. The inclusion of this topic will also create the need for additional criminal/ legal searches for every Phase I Site Assessment. This is well above and beyond the expertise and credentials of environmental professionals. Furthermore, these searches are already part of legal due diligence for property transfer. Attorneys licensed and experienced in criminal, drug enforcement, and property transfer laws should continue to focus on " controlled substances".

Response: Please see response to comment number 0104, excerpt 1.

Commenter Organization Name: Potter and Adams Comment Number: 0351 Excerpt Number: 4 Excerpt Text: For persons defined under Section 312.1( b)( 1), the investigation is limited to releases or threatened releases, as defined by CERCLA Section 101( 22), of hazardous substances as defined 594 by CERCLA Section 101( 14). For persons defined under Section 312.1( b)( 2), the investigation is expanded to releases or threatened releases, as defined by CERCLA Section 101( 22), of hazardous substances as defined by CERCLA Section 101( 14), pollutants and contaminants as defined by CERCLA Section 101( 33), petroleum and petroleum products, and controlled substances.

The proposed scope is a departure from the currently accepted scope of a Phase I environmental assessment ( ASTM E 1527 00). The ASTM scope includes assessing the property with respect to the range of contaminants within the scope of CERCLA and petroleum products. The addition of controlled substances to the AAI scope will increase the cost of the AAI process. It is suggested that controlled substances be eliminated from Section 312.1( c)( 2).

Response: Please see response to comment number 0104, excerpt 1.

EPA agrees with the commenter that the expanded scope that is applicable only to certain recipients of brownfields grants is a departure from currently commercially accepted environmental site assessments. Funding for the expanded investigations is provided through the EPA grant program.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 6 Excerpt Text: Proposed Rule § 312.1( c)( 2)( iii) adds a new  and, frankly, surprising  category of substances to be assessed during the AAI: controlled substances. The definition of " controlled substance", incorporated by reference in the proposed AAI Rule, is any " drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of [ the Drug Abuse Prevention and Control Act]." Thus, the proposed AAI Rule requires EPs to assess whether or not there are illegal narcotics on the property as part of the environmental due diligence.

Granted, the manufacture and processing of many narcotics involves hazardous chemicals; however, those chemicals already fall within the CERCLA definition of a hazardous substance. It is unclear how this new requirement to assess the presence of narcotics ( above and beyond the mere presence of hazardous substances) advances the goals of EPA, CERCLA, the potential landowner or even drug enforcement agencies. Since the AAI Reports are not required to be disclosed to any government agency, it does not appear that it will be an effective tool for narcotics enforcement. Moreover, few EPs have 3 to 10 years relevant experience in assessing the presence of controlled substances, and such knowledge is outside of scope of the requisite EP educational requirements described in Proposed Rule § 312.10( b).

While it may be a noble goal to ferret out illegal drugs, environmental due diligence is not the appropriate vehicle to do so, and EPs are not the appropriate professionals for that task. 595 Response: Please see response to comment number 0104, excerpt 1. 596 3.12 Data Gaps Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 5 Excerpt Text: Secs. 312.20( 3)( i) and 312.23 require interviews with past and present owners, operators, and occupants. EPA recognizes that, for abandoned properties, it may be impossible to find any, and recommends contacting the owners of neighboring parcels. The inability to find such persons, says EPA, may result in data gaps to be filled or explained by the EP using " best professional judgment." The purpose of the regulation is to set standards that, when met, entitle a person to certain protections against liability. This is not helpful. In the end, the likely course of action will be sampling, even though EPA does not mandate sampling as a minimum criterion for " all appropriate inquiry." EPA should de emphasize the hunt for people who obviously don't want the property and allow prospective purchasers to rely on historical records, site conditions, supplemented by interviews, where available.

Response: In today's final rule, § 312.20( g) requires environmental professionals, prospective landowners, and grant recipients to identify data gaps that affect their ability to identify conditions indicative of releases or threatened releases of hazardous substances ( and in the case of grant recipients pollutants, contaminants, petroleum and petroleum products, and controlled substances). The final rule requires such persons to identify the sources of information consulted to address the data gaps and comment upon the significance of the data gaps with regard to the ability to identify conditions indicative of releases or threatened releases. Section 312.21( c)( 2) also requires that the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases.

In response to issues raised by commenters, we point out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations. 597 Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 7 Excerpt Text: 7 Steve Myers Sampling 312.20( f) ( Data gaps) Will sampling be necessary every time that there is a historical data gap or if a past owner or operator cannot be found or is unwilling to talk?

Response: Please see response to comment number 0095, excerpt 5. Sampling and analysis may only be necessary in those limited cases where the environmental professional cannot render an opinion regarding whether or not there are conditions indicative of releases or threatened releases of hazardous substances at a property.

Commenter Organization Name: Diamond, Jason Comment Number: 0251 Excerpt Number: 5 Excerpt Text: The AAI rule requires that the written report summarizing the results of the inquiry identify data gaps in the information developed as part of the inquiry that affect the EP's ability to ascertain whether conditions indicative of releases or threatened releases of hazardous substances to the property are present. The rule also requires the report include comments regarding the significance of such data gaps on the EP's ability to provide an opinion as to whether the inquiry has identified conditions indicative of a release at the property. This approach allows for flexibility in addressing data gaps. The EP may exercise his judgment in determining if data gaps have significantly affected his ability to meet the objective of the AAI standard, and may include in the report his opinion regarding additional investigations and sampling and analyses that may be required to address data gaps.

Response: The Agency agrees with the commenter.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 6 Excerpt Text: The data gap issue has the potential to make the AAI reporting process unworkable. Virtually all reports will have data gaps and they are unavoidable for properties with historic uses prior to the mid 1800' s. The problem with the draft rule and the preamble is they are open to the interpretation that all data gaps are identifiable as to their existance and their significance. Clearly it is impossible to intelligently speculate on the impact of something that you know nothing about. One obvious solution is to better define what constitutes a " data gap that affects their ability to identify conditions indicative of a release  ". A reasonable interpretation would 598 be that a data gap must be discussed only if the professional experience or other information obtained in the conduct of the Phase 1 raises concerns about an identified data gap. This would avoid the need to speculate about what may or may not have happened on a property during the Civil War in the absence of any indication that there was any historic activity of concern on that property. The AAI process needs to arrive at closure. Any implication that extraordinary measures are required to identify and opine on data gaps will prevent closure and greatly increase the cost of preparing a report.

The concept of data gap resolution appears to be inconsistent with the principles adopted in Standard Commercial practice. The current process is not exhaustive, does not eliminate uncertainty, and is highly variable dependent upon the property. If the data gap language is maintained it must be clear that concept is applied in the context of the principles inherent in the process and standard of good commercial and customary practice.

Response: In today's final rule, § 312.20( g) requires environmental professionals, prospective landowners, and grant recipients to identify data gaps that affect their ability to identify conditions indicative of releases or threatened releases of hazardous substances ( and in the case of grant recipients pollutants, contaminants, petroleum and petroleum products, and controlled substances). The final rule requires such persons to identify the sources of information consulted to address the data gaps and comment upon the significance of the data gaps with regard to the ability to identify conditions indicative of releases or threatened releases. Section 312.21( c)( 2) also requires that the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases.

In response to issues raised by commenters, we point out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

Commenter Organization Name: PIRG Comment Number: 0258 Excerpt Number: 3 599 Excerpt Text: Weaker standards also make data gaps much more likely. Data gaps may be noted and discussed in the report, pursuant to AAI draft rule. Unfortunately, when the draft rule seems to clearly allow such gaps as is the case with the broad exceptions on site inspections the likelihood that the report will fail to identify an environmental condition increases. At the same time, a purchaser can claim that the AAI standard was met. The purchaser may then claim a liability exemption, but not take reasonable steps to address an environmental condition missed due to a gap in information. This result is inconsistent with the Brownfields Law and is unacceptable.

Response: The commenter may have misunderstood the scope of the rule and the statutory requirements for obtaining the liability protections. As explained in detail in Section II of the preamble to the proposed and final rules, the conduct of all appropriate inquiries is only one requirement necessary for obtaining protection from CERCLA liability. The mere fact that a prospective landowner conducted all appropriate inquiries does not provide an individual with protection from CERCLA liability. To qualify as a bona fide prospective purchaser, innocent landowner or a contiguous property owner, a person must, in addition to conducting all appropriate inquiries prior to acquiring a property, comply with all of the other statutory requirements. These criteria are summarized in section II. D. of the preamble. The all appropriate inquiries investigation may provide a prospective landowner with necessary information to comply with the other postacquisition statutory requirements for obtaining liability protections. The conduct of an incomplete all appropriate inquiries investigation, or the failure to detect a release during the conduct of all appropriate inquiries, does not exempt a landowner from his or her postacquisition continuing obligations under other provisions of the statute. Failure to comply with any of the statutory requirements may be problematic in a claim for protection from liability.

The final rule retains the requirement to identify data gaps, address them when possible, and document their significance. Prospective landowners may wish to consider the potential significance of any data gaps that may exist after conducting the pre acquisition all appropriate inquiries in assessing their obligations to fulfill the additional statutory requirements after purchasing a property.

If a person properly conducts all appropriate inquiries pursuant to this rule, including the requirements concerning data gaps at § § 312.10, 312.20( g) and § 312.21( c)( 2), the person may fulfill the all appropriate inquiries requirements of CERCLA Sections 107( q), 107( r), and 101( 35), even when there are data gaps in the inquiries. However, as explained further in the preamble, fulfilling the all appropriate inquiries requirements does not, by itself, provide a person with a protection from or defense to CERCLA liability. Failure to identify a release or threatened release during the conduct of all appropriate inquiries does not negate the landowner's continuing responsibilities under the statute, including the requirements to take reasonable steps to stop the release, prevent a threatened release, and prevent exposure to the release or threatened release once the landowner has acquired a property. Also, if an existing institutional control or land use restriction is not identified during the conduct of all appropriate inquiries prior to the acquisition of a property, a landowner is not exempt from complying with the institutional 600 control or land use restriction after acquiring the property. None of the other statutory requirements for the liability protections is satisfied by the results of the all appropriate inquiries.

We emphasize that the mere fact that a prospective landowner conducted all appropriate inquiries does not provide an individual with a defense to or limitation from CERCLA liability. To qualify as a bona fide prospective purchaser, innocent landowner or a contiguous property owner, a person must, in addition to conducting all appropriate inquiries prior to acquiring a property, comply with all of the other statutory requirements. These criteria are summarized in section II. D. of the preamble to the final rule. The all appropriate inquiries investigation may provide a prospective landowner with necessary information to comply with the other postacquisition statutory requirements for obtaining liability protections. The failure to detect a release during the conduct of all appropriate inquiries does not exempt a landowner from his or her post acquisition continuing obligations under other provisions of the statute.

Commenter Organization Name: PBS & J Comment Number: 0270 Excerpt Number: 5 Excerpt Text: In many circumstances, so called ? gaps? in data are inevitable no matter how much time and effort go into a project. This issue raises concerns about Timer, Cost, and Confidentiality. Is it necessary or a good idea to have more of the community involved in data gap interviews?

Response: In today's final rule, § 312.20( g) requires environmental professionals, prospective landowners, and grant recipients to identify data gaps that affect their ability to identify conditions indicative of releases or threatened releases of hazardous substances ( and in the case of grant recipients pollutants, contaminants, petroleum and petroleum products, and controlled substances). The final rule requires such persons to identify the sources of information consulted to address the data gaps and comment upon the significance of the data gaps with regard to the ability to identify conditions indicative of releases or threatened releases. Section 312.21( c)( 2) also requires that the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases.

In response to issues raised by commenters, we point out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given 601 that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

It is left to the judgment and discretion of the environmental professional as to whether it is necessary or prudent to involve more of the community or use additional interviews to address data gaps. It may depend on the nature of the data gaps.

Commenter Organization Name: Miles & Stockbridge Comment Number: 0277 Excerpt Number: 2 Excerpt Text: 3. Data Gap Definition  Another serious issue is the proposed definition of " data gap" ( 40 CFR § 312.10). This definition states that the AAI rules will not protect prospective purchasers for any environmental condition or liability arising from " data gap", i. e., defined as a lack or inability to obtain information required by the standards and practices listed in the proposed rule, despite good faith efforts by the environmental professional. Further, the preamble states "  a fulfillment of the " All Appropriate Inquiries" requirements does not, by itself, provide a person with a protection from or defense to CERCLA liability." ( 69FR52560). Such qualification to liability protection provisions will effectively nullify the prospective purchaser protections that Congress intended. Further, depending on a business' portfolio and assets, lending institutions may be reluctant or refuse to loan money to a small business acting as a prospective purchaser for fear of liability. In summary, the proposed definition of data gap will adversely impact property transactions, business development and small businesses.

Response: The comment is premised upon an inaccurate understanding of the CERCLA liability provisions. CERCLA requires that all appropriate inquiries be conducted, AND continuing obligations be met to qualify for liability protection. This rule ( all appropriate inquiries) does not affect the statutory liability scheme established by Congress, rather it defines the standards and practices that must be conducted to comply with the provisions for all appropriate inquiries requires.

Further, the rule does not state " that the AAI rules will not protect prospective purchasers for any environmental condition or liability arising from ` data gap' " Please also see the response to comment number 0258, excerpt 3.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 3 Excerpt Text: Distinguish data gaps as they relate to categorical information about the property and not as they may relate to information sources. Specifically, that " information required by the standards and 602 practices listed in Subpart C of this part," be referred to by " types of information about the subject property" as identified in Section 312.20 ( d) Objectives, as opposed to also including ( possibly) data gathering problems with information sources ( 312.20( b)( 3)).

Response: EPA does not agree with commenter's suggestion for distinguishing between types of data gaps. In response to issues raised by commenters, we point out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

It is left to the judgment and discretion of the environmental professional as to whether it is necessary or prudent to involve more of the community or use additional interviews to address data gaps. It may depend on the nature of the data gaps.

Commenter Organization Name: anonymous institution Comment Number: 0315 Excerpt Number: 2 Excerpt Text: We endorse an increase historical interviewing and investigation into the past use( s) of the property and neighboring properties. However, with an increase in " practicable"( feasible) interviewing ( i. e. past owners, past occupants, neighbors), a substantial increase in the number of " data gaps" will inevitably occur due to difficulty in obtaining this information. An increase in " data gaps" can only lead to a flawed CERCLA liability defense. Clear and concise wording should be outlined in the Rule to legally handle these Phase I " data gaps".

Response: Please see response to comment number 0258, excerpt 3.

Commenter Organization Name: Herin Comment Number: 0329 Excerpt Number: 3 Excerpt Text: 603 With respect to the issue of " data gaps" I would encourage EPA to provide further guidance as to how these may be efficiently treated in an AAI report so the user can more easily take advantage of the innocent landowner protections. It seems that it will be too easy for consultants to frequently default to broadly identifying data gaps which result in the user not being protected unless the user performs sampling and analysis. Some data gaps do not justify the need for further work and it would be helpful for EPA to guide the EP and user in how this determination may be made. Furthermore, the EP ought to be encouraged to specifically define the nature of each data gap ( including the type of risk which may be taken by the user if the data gap is not further addressed).

Response: Please see response to comment number 0292, excerpt 3.

Commenter Organization Name: CBPA Comment Number: 0344 Excerpt Number: 3 Excerpt Text:  The New Rule Appears to Make Prospective Purchasers Liable For Undiscovered On Going Releases No matter how thorough a Phase I is ( or even a Phase II, for that matter) it is possible that sources of contamination on the subject property will remain undiscovered. Even if the site investigation identifies contamination, it may not identify all of it. It is common to discover additional materials not disclosed in the site investigation report once excavation for a construction project begins. In reality, although pre purchase inquiry through a professionally conducted site investigation is an invaluable tool, the ultimate test is conducted by bulldozers and backhoes when construction begins.

The preamble to the proposed rule, explaining the new " data gaps" requirement ( page 52560), appears to imply that purchasers are fully liable for any on going release not discovered by the pre purchase Phase T site investigation: "[ a] n inability to obtain information. . can have significant consequences regarding a prospective landowner's ultimate ability to claim protection from CERCLA liability [ and] may result in an inability to claim protection against CERCLA liability for any on going release." In the case complicated groundwater pollution, this could potentially expose purchasers to untold costs in liability.

The proposed rule appears to reason that if the on going release isn't discovered during the Phase I, the landowner can't take " reasonable steps" to stop the release and will therefore be liable for all contamination released into the environment. As the rule explains ( page 52560): " For example, if a person does not identify, during the all appropriate inquiries, a leaking underground storage tank that exists on the property, the landowner may not have sufficient information to comply with the statutory requirement to take reasonable steps to stop on going releases after acquiring the property." We do agree that landowners should be responsible to take reasonable steps to stop on going releases, once the release becomes known. However, a landowner who has 604 conducted a pre purchase inquiry in accordance with generally accepted good commercial and customary standards and practices should not incur CERCLA liability for any on going release not discovered by the inquiry.

At a minimum, the proposed rule should provide additional clarifying language that makes it clear that a landowner's responsibility for any on going release of contamination undiscovered by a properly conducted Phase I is to stop the release when and if it is discovered. It should be made absolutely clear that if the landowner takes reasonable steps to stop the release promptly upon discovery, the landowner will not be liable for the cost of cleaning up any contamination that was released into the environment while the release was ongoing.

Response: The commenter is correct in stating that a landowner's responsibility for any on going release of contamination undiscovered by a properly conducted Phase I is to stop the release when and if it is discovered. If the landowner takes reasonable steps to stop the release promptly upon discovery, the landowner may not be liable for the cost of cleaning up any contamination that was released into the environment while the release was ongoing. However, to obtain protection from liability under CERCLA the landowner may have to demonstrate that he or she did not know and " had no reason to know" that the contamination existed on the property prior to his or her acquisition of the property. Making such a demonstration may require that a landowner defend the accuracy and thoroughness of the all appropriate inquiries investigation conducted prior to acquiring the property. If a court determines that the all appropriate inquiries investigation was not compliant with the final regulations or otherwise should have identified releases or threatened releases of hazardous substances at the property, the court may establish that the land owner is not eligible for the liability protections.

Commenter Organization Name: Grand Rapids C of C Comment Number: 0345 Excerpt Number: 7 Excerpt Text: In the preamble to the proposed rule, the EPA states that an environmental professional's inability to obtain information, or data gaps, could result in the inability of the prospective purchaser to claim protection against CERCLA liability. This language seems to raise the bar for environmental consultants to the point that perfection would now be required. Under the EPA's language, if a release is discovered despite conducting " all appropriate inquiry," the prospective purchaser may not be able to claim a defense to CERCLA liability. The Grand Rapids Area Chamber of Commerce recommends that this preamble language be modified to allow prospective purchasers to obtain protection from CERCLA liability as long as they conduct " all appropriate inquiry" in conformance with the ASTM Standard into the property.

Response: Please see response to comment number 0344, excerpt 3. 605 Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 9 Excerpt Text: Data Gaps. Potentially a source of major additional costs because of the ambiguity of the language.\

Response: The Agency believes the language is sufficiently specific. EPA points out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

It is left to the judgment and discretion of the environmental professional as to whether it is necessary or prudent to involve more of the community or use additional interviews to address data gaps. It may depend on the nature of the data gaps.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 11 Excerpt Text:  The preamble uses the example of an undiscovered leaking underground storage tank resulting in the inability to take reasonable steps to stop on going releases, thus resulting in the inability to claim protection from CERCLA liability. It is my understanding that the basis for the retroapplicability of CERCLA is that legally it is an on going release. Thus failure to discover any release on a property would result in the inability to claim CERCLA. If there is a possibility of not discovering a release and thus not complying with AAI even though every other aspect was properly performed, why do any inquiry at all? If EPA is expecting perfect information, there would be no liability to protect and the entire AAI process is negated. This statement should be removed from the preamble.

Response: 606 Please see response to comment number 0344, excerpt 3.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 22 Excerpt Text: 312.21( c)( 2): see comment on definition of data gap. But even with a defined time period, the Environmental Professional should comment on the significance of the data gap as it applies to a particular property and would be negligent if he thought five years is too long and did not attempt to close the gap. I recommend adopting the 1527 language.

Response: The Agency believes the language is sufficiently specific. EPA points out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

It is left to the judgment and discretion of the environmental professional as to whether it is necessary or prudent to involve more of the community or use additional interviews to address data gaps. It may depend on the nature of the data gaps.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 6 Excerpt Text:  B. The Proposed " Data Gaps" Requirement Casts Doubt on Developers' Protection From CERCLA Liability for Undiscovered Ongoing Releases  i. Congress intended that a developer's responsibility for contamination would be limited to taking " reasonable steps" to stop leaks and protect the public, but would not extend to expensive cleanups. 607 The purpose of affording prospective purchasers liability protection is to assure them that they will not incur CERCLA liability for costs of cleaning up contamination on the subject property or remediating groundwater that is polluted by releases of contamination from the subject property [ Footnote: Much of the concern over CERCLA liability centers on co mingled groundwater plumes. It is often the case that groundwater underlying industrial areas is contaminated with many different chemicals from many different sources. Because CERCLA liability is joint and several, the owner of a site that has contributed a relatively small amount of contamination to groundwater can be held liable for the cost of cleaning up the entire plume. Remediation of contaminated groundwater plumes is extremely expensive, potentially running into tens of millions of dollars or more]. The Brownfields Revitalization Act provides that all purchasers must, however, take " reasonable steps" to stop any ongoing release and protect human health and the environment. 42 U. S. C. § 9601 ( 35)( B)( i). Reasonable steps do not include remediating groundwater or a " full" cleanup of contamination, such as removing contaminated soil. Rather, they are intended to contain contamination and protect the public without exposing developers to the excessive liability involved in CERCLA remediation actions. Prior to this negotiated rulemaking process, staff attorneys in EPA's Office of Enforcement explained the reasonable steps obligations of protected developers:

" By making the landowner liability protections subject to the obligations to take " reasonable steps," EPA believes Congress intended to balance the desire to protect certain landowners from CERCLA liability with the need to ensure the protection of human health and the environment. In requiring reasonable steps from parties qualifying for landowner liability protections, EPA believes Congress did not intend to create, as a general matter, the same types of response obligations that exist for a CERCLA liable party ( e. g., removal of contaminated soil, extraction and treatment of contaminated groundwater)."

United States Environmental Protection Agency, Office of Enforcement and Compliance Assurance, Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability 9 ( March 6, 2003) ( emphasis original) (" Guidance Document").

 ii. Congress intended developers to be protected from liability for hidden contamination that is discovered after the purchase.

EPA's staff attorneys also made clear that protected developers are not responsible for cleaning up contamination that is missed during a properly conducted prepurchase site investigation, but are only responsible to take " reasonable steps" when and if hidden contamination comes to light:

Q7: If a protected landowner discovers a previously unknown release of a hazardous substance from a source on her property, must she remediate the release?

A7: Provided the landowner is not otherwise responsible for the release from the source, she should take some affirmative steps to " stop the continuing release," but EPA would not, absent unusual circumstances, look to her for performance of complete remedial measures. 608 Id. at attachment B.

 iii. The negotiated rule appears to contradict the intent of Congress by holding developers fully liable for contamination undiscovered during the pre purchase inquiry.

EPA's negotiated rule, which is being promulgated by a different office within EPA, contradicts the Guidance Document issued by the Office of Compliance and casts doubt on whether conducting All Appropriate Inquiry prior to purchase, and thereby obtaining protected landowner status, can ever result in any meaningful CERCLA liability protection [ Footnote: 7 Guidance documents do not have the force of law. See Skidmore v. Swift & Co., 323 U. S. 134, 140 ( 1944); Christensen v. Harris County, 529 U. S. 576, 587 ( 2000). Rules properly adopted through notice and comment rulemaking do have the force of law and ordinarily are entitled to Chevron deference. See United States v. Mead Corp., 553 U. S. 218 ( 2001). An agency may also change its mind in making policy determinations so long as the decision is within the range of options permitted by its organic statute or other legislation. However, the Guidance Document represents an unbiased contemporaneous interpretation of a statute the agency is entrusted with administering and it expresses the agency's understanding of the intent of Congress. We believe the Guidance Document correctly states the unambiguously expressed intent of Congress and EPA cannot now deviate from that intent.]. The intent of the negotiated rule appears to be to hold developers fully liable for contamination undiscovered during the pre purchase inquiry.

The Statement of Basis and Purpose, explaining the new " data gaps" requirement at page 52560, implies that purchasers are fully liable for an on going release not discovered by the prepurchase investigation: "[ a] n inability to obtain information  can have significant consequences regarding a prospective landowner's ultimate ability to claim protection from CERCLA liability. . . . [ and] may result in an inability to claim protection against CERCLA liability for any ongoing release." EPA reasons that if an on going release isn't discovered during the pre purchase investigation, the landowner can't take " reasonable steps" to stop the release ( because he doesn't know about it) and will therefore be liable for all contamination released into the environment. As EPA explains: " For example, if a person does not identify, during the all appropriate inquiries, a leaking underground storage tank that exists on the property, the landowner may not have sufficient information to comply with the statutory requirement to take reasonable steps to stop on going releases after acquiring the property." EPA apparently intends to attach liability for undiscovered releases despite " good faith efforts by the environmental professional or prospective landowner" to gather information and where there is simply a lack of information indicating contamination. 69 Fed. Reg. at 52559 560. If taken literally, this language abolishes innocent purchasers' protections entirely. At best, it is ambiguous and rife with uncertainty [ Footnote: This particularly troubling passage might be explained by turbulence between EPA and Negotiated Rulemaking Committee members. U. S. PIRG, a staunch advocate of public health and environmental protection, abruptly quit the rulemaking committee in part because it felt that the " data gaps" section was too lenient for developers. Letter from Julie C. Wolk, U. S. PIRG to Patricia Overmeyer, U. S. EPA, December 19, 2003. EPA, in turn, replied that U. S. PIRG could not withdraw from the negotiated rulemaking process because the committee had already reached consensus. Letter from Marianne Horinko, U. S. EPA to Gene Karpinski, U. S. 609 PIRG, undated. This is part of the attempt of EPA to insulate itself from legal challenges to the regulation. As a part of the negotiated rulemaking process committee members commit to support the rule once consensus is reached. This commitment, however, is certainly legally unenforceable on numerous constitutional and statutory grounds.].

At a minimum, EPA should provide clarifying language that leaves no doubt that a developer's only responsibility for any on going release of contamination undiscovered by a properly conducted AAI is to stop the release when and if it is discovered. It should be made crystal clear that if the developer takes reasonable steps to stop the release promptly upon discovery, the she will not be liable for the cost of cleaning up any contamination that was released into the environment while the release was ongoing.

Response: The commenter is correct in asserting that a landowner's responsibility for any on going release of contamination undiscovered by a properly conducted all appropriate inquiries investigation is to stop the release when and if it is discovered. If the landowner takes reasonable steps to stop the release promptly upon discovery, the landowner may not be liable for the cost of cleaning up any contamination that was released into the environment while the release was ongoing. However, to obtain protection from liability under CERCLA the landowner may have to demonstrate that he or she did not know and " had no reason to know" that the contamination existed on the property prior to his or her acquisition of the property. Making such a demonstration may require that a landowner defend the accuracy and thoroughness of the all appropriate inquiries investigation conducted prior to acquiring the property. If a court determines that the all appropriate inquiries investigation was not compliant with the final regulations or otherwise should have identified releases or threatened releases of hazardous substances at the property, the court may establish that the land owner is not eligible for the liability protections. The language that the commenter cites from the preamble to the proposed rule was meant to inform prospective property owners that all appropriate inquiries must be conducted thoroughly and in compliance with the final regulations and that the failure to discover an on going release due to an improperly conducted all appropriate inquiries investigation may result in the landowner losing protection from CERCLA liability.

The requirement to identify and document " data gaps" is not meant to establish an " open ended" search requirement. The requirement to identify " data gaps" is meant to provide documentation of what types of information an environmental professional ( and those individuals under the direct charge and supervision of the environmental professional) searched for, in compliance with the objectives and performance factors of the rule, and could not find, in those cases where, in the judgment of the environmental professional affect his or her ability to determine whether or not conditions at a property are indicative of releases or threatened releases of hazardous substances on, at, in, or to the property. In cases where the environmental professional determines that data gaps or missing information about a property are not essential to his or her determination with regard to the environmental conditions of the property, documentation of data gaps is not required. 610 Data gaps are an essential element of all appropriate inquiries. EPA determined that it is important that the conduct of all appropriate inquiries include documentation of how missing information may affect an environmental professional's ability to adequately determine the potential environmental conditions at a property. This aspect of the inquiries allows environmental professionals to apply their professional judgment. If, for instance, there is a significant gap in data about a property and the lack of such information reduces the ability of the environmental professional to adequately characterize the environmental conditions at that property, a prospective property owner can use such information to take appropriate steps to proceed in an environmentally responsible manner with regard to further characterization of the property. The preamble to the proposed All Appropriate Inquiries rule published in the Federal Register ( 40 CFR Part 312), notes, "  the mere fact that a purchaser conducted all appropriate inquiries does not provide any individual with a limitation from CERCLA liability. To qualify as a bona fide prospective purchaser, innocent landowner or a contiguous property owner, a person must, in addition to conducting all appropriate inquiries prior to acquiring a property, comply with all of the other statutory requirements." ( 40 CFR Part 312, p. 52560). EPA views this to be consistent with Congressional intent.

Commenter Organization Name: Auditing Roundtable, BEAC Comment Number: 0363 Excerpt Number: 6 Excerpt Text: The proposal requests comments on proposed standards for conducting interviews of past and present owners and occupants of a property and comments on the proposed standards for reviews of historical sources of information.

The proposed standards generally propose appropriate requirements for interviewing past and present owners ( when feasible) and consulting other historical sources of information. However, in circumstances in which information from predecessor entities and other historical information is sketchy or unavailable, the implication to be drawn from the proposed standard is that these are then " data gaps" to be identified in the report. Since the significance of such information may be difficult to determine, one must infer that a user of the report must conduct phase II site testing in order to have any assurance that it would qualify for the liability defenses available under CERCLA. This is likely to add substantial delay and expense as report users ( lenders, purchasers and others) will likely strive to have the greatest degree of practical certainty that they would qualify for the defenses.

Response: In today's final rule, § 312.20( g) requires environmental professionals, prospective landowners, and grant recipients to identify data gaps that affect their ability to identify conditions indicative of releases or threatened releases of hazardous substances ( and in the case of grant recipients pollutants, contaminants, petroleum and petroleum products, and controlled substances). The final rule requires such persons to identify the sources of information consulted to address the data gaps and comment upon the significance of the data gaps with regard to the ability to identify conditions indicative of releases or threatened releases. Section 312.21( c)( 2) also 611 requires that the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases.

In response to issues raised by commenters, we point out that the final regulation, as did the proposal, requires that environmental professionals document and comment on the significance of only those data gaps that " affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances... on, at, in, or to the subject property." If certain information included within the objectives and performance factors for the final rule cannot be found and the lack of certain information, in light of all other information that was collected about the property, has no bearing on the environmental professional's ability to render an opinion regarding the environmental conditions at the property, the final rule does not require the lack of such information to be documented in the final report. Given the restriction on the type of data gaps that must be documented, and given that the documentation is restricted to instances where the lack of information hinders the ability of the environmental professional to render an opinion regarding the environmental conditions at the property, we disagree with the commenters who assert that the requirement is overly burdensome or will result in the inability to complete the required investigations.

It is left to the judgment and discretion of the environmental professional as to whether it is necessary or prudent to involve more of the community or use additional interviews to address data gaps. It may depend on the nature of the data gaps.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 6 Other Sections: NEW  <IP_ADDRESS>  The proposed rule will improve quality of ESAs Excerpt Text:  The proposed provisions for addressing data gaps.

 Lack of information or the inability to obtain information on a site is a common problem. This is often caused by project limitations as reflected in scope and budget. However, Phase I ESA reports have traditionally not included detail about data gaps. Therefore, we believe this proposed requirement will result in better reports and provide report recipients with greater detail upon which liability minimizing decisions can be made.

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

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 6 Excerpt Text: 612 Data gaps are to be addressed using " best professional judgment." This " standard" gives little or no confidence that liability protection will be afforded the purchaser or lessee.

Response: Please see responses to comment numbers 0354 ( excerpt 6) and 0363 ( excerpt 6). 613 3.12.1 The Rule Should Require Sampling and Analysis Commenter Organization Name: Tweedale, Tony Comment Number: 0045 Excerpt Number: 3 Excerpt Text: The requirements for making data gaps evident ( proposed Sec. 312.10) appear strong, but I wonder if there's any way to build in even more incentive to perform sampling & analysis ( in this or other sections), using EPA's administrative powers to create some sorts of preferences for sites where sampling was included during ' all appropriate inquiry'?

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Rynders, Dustin, et al Comment Number: 0076 Excerpt Number: 1 Excerpt Text: A review of the standards and practices promulgated by EPA in this rulemaking are in general acceptable. Of concern is the method by which purchasers are or are not required to close data gaps as provided in § 312.20( f) and § 312.21. Because data gaps may prevent an environmental professional from being able to issue an unqualified opinion, removal of data gaps is critical to the accomplishment of the stated purpose of the Brownfields Amendments  the identification of sites requiring cleanup.

Although proposed rule § 312.20( f) states " Sampling and analysis may be conducted to develop information to address data gaps," [ emphasis added] there is no provision for mandatory testing to receive the liability limits contemplated by the Brownfields Amendment. 614 To further extend the benefits of the Brownfields Amendments, we propose the following additions to the proposed regulation:

Elimination of data gaps ( a) Data gaps ( as defined in § 312.10) may be eliminated through the development and completion of a site specific sampling plan which shall be developed by the environmental professional ( as defined in § 312.10) who will be writing the opinion prescribed in § 312.21.

( b) The scope of the site sampling plan need only be designed to fill the specific data gaps as identified by the environmental professional.

( c) Completion of all testing identified by a site specific sampling plan shall constitute a closing of the particular data gap so long as the site specific sampling plan and the test reports shall be included in the environmental professional's report.

Response: See response to commenter number 0045, excerpt 3.

Commenter Organization Name: Wassom, Brady Comment Number: 0233 Excerpt Number: 1 Excerpt Text: In an attempt to relieve liability from businesses who want to redevelop brownfields and thus discourage the development of open space, the Brownfields Law will require those said businesses to conduct all appropriate inquiries ( AAI) in order to establish that prospective purchasers had no reason to know of any contamination on a property. The proposed standards and practices for conducting AAI do not include requirements for sampling and analysis of contaminated properties. The proposed standards do require that prospective purchasers of brownfields, through the consultation of an " environmental professional" ( EP) as defined by the same proposed standards, gather historical information, government data and conduct interviews to enable the purchaser to determine the extent to which a property is contaminated. In order to fill in possible data gaps that might exist after conducting the above research, voluntary sampling may be conducted but is not required. It is my contention that due to the changing demographics in the urban centers of the northeastern United States as exemplified by the state of New Jersey, this absence of a sampling and analysis requirement will be detrimental to public health. Perhaps the lack of requirements for sampling and analysis will make the process of purchasing and redeveloping brownfields less costly and, in turn, discourage the development of open space, but what are the potential costs to public health?

Like many states in the northeast, New Jersey has seen a change from an economy mainly based on industrial enterprise to one based on services over the last century. This change has left many former industrial sites vacant and prime for redevelopment. However, much of this redevelopment will not occur to feed a growing demand for industrial development in the state. 615 Rather, this redevelopment is needed in order to meet the demands of a growing population that is borne of the growth of the adjacent growing economies of New York and Philadelphia ( Katcher, 2000). Furthermore, many of the brownfield sites in New Jersey exist on parcels of land that are too awkward and small for industrial development thus lending them to residential development ( Greenberg, 2001). Meeting the demands of a growing population and redeveloping brownfields for residential use requires an primary emphasis on protecting the public health in addition to encouraging the redevelopment of brownfields. With many brownfield properties situated in low income neighborhoods, the redevelopment of these sites also has civil rights/ environmental justice implications ( Greenberg, 2001).

A case that is illustrative of the potential problems with brownfields redevelopment and potential public health costs is the Grand Street Mercury Site in Hoboken, NJ. Since 1910, this site was home to a variety of manufacturing companies including the Cooper Hewitt Electric Company, the General Electric Vapor Light Company, the General Electric Company and the Quality Tool and Die Company. From 1910 to 1965 these companies manufactured mercury vapor lamps at the site. In 1990, the last owner of the site, the Quality Tool and Die Company, filed to stop operations under the New Jersey Environmental Cleanup and Responsibility Act. Remediation of the site involved removing an underground storage tank used for petroleum products and removal of associated contaminated soil. Given the history of the site, it is alarming that no federal laws required sampling for mercury contamination at the site before it was redeveloped for residential use. After the sale was complete, the property was sold to a community real estate cooperative that sold the individual units for use as apartments and art studios. One year after residents moved in, mercury contamination was discovered at the site. Subsequent sampling and analysis of urine samples from residents and owners of the units revealed that 69% of those sampled had elevated mercury levels ( equal to or greater than 20 micrograms per liter) ( Singh, 1998). As of June 2003, the EPA issued a unilateral administrative order for the primary responsible party to conduct remedial action ( EPA, 2004).

The Hickory Woods neighborhood in Buffalo, New York is another case where a brownfield site was redeveloped into a residential development. The redevelopment was part of an urbanrenewal initiative where a former steelmaking plant was converted to a housing subdivision in the late 1980s. By the mid 1990s, residents of the subdivision suspected there was contamination associated with the former steel mill. In 2000, the EPA confirmed the presence of elevated levels of lead, mercury and arsenic ( Rosenberg, 2003).

Both of the above cases have some striking similarities. Both sites were brownfields in urban areas that were redeveloped for future residential development. Although, the history and previous ownership of both sites was known, sampling and analysis were not required as part of the CERCLA requirements to release the properties to new owners. Under, the proposed standards for conducting AAIs, sites such as these would not require sampling in order for liability to be released and redevelopment to begin. Due to the demand for residential real estate in the urban areas of the northeast, brownfield development should be approached with the protection of public health as the primary consideration. The Brownfields Law is an important step in converting brownfields to usable properties, but the lack of a requirement for sampling and analysis of sites is unacceptable as it is 616 proposed. The proposed standards do not adequately address the unique environment in which many of the brownfields sites exist in the northeastern U. S.

Furthermore, the lack of a requirement for sampling and analysis is also disturbing in light of the fact that the proposed standards for the AAI require the EP to issue an opinion regarding additionally needed investigation, if any ( Albergo, 2004). This " opinion" may be issued without knowledge of the specific future development plans for a site. In the above cases, would an EP have known that the sites were going to be used for residential development? If the EP did, the risk analysis would be much different than if the EP was under the assumption that the sites were going to be used for industrial development. Additionally, the prospective purchaser may not want to disclose the specific details of any future development for fear of being held hostage by an EP's opinion/ recommendation ( Albergo, 2004). The public health implications of this would not be in the best interest of the public.

The lack of a requirement to conduct sampling and analysis in the proposed standards for conducting AAIs is cited by some as the biggest challenge facing all stakeholders who have an interest in brownfields redevelopment ( Siegel, 2004). Adopting boilerplate standards for the nation as a whole fails to address the unique needs of those in the urban northeastern U. S. Certainly, it would be possible to adopt different standards for different geographic regions as is done in the Clean Air Act. In these areas, where residential development is increasing, it is imperative that the EPA carefully consider the costs and benefits of brownfield redevelopment and its potential impact on the public health.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

EPA agrees with the commenter's statements indicating that different types of properties represent different environmental and redevelopment challenges. The performance based approach to the final rule was developed to allow environmental professionals to use their judgment in addressing the unique nature of individual properties. At this time, and given the general nature of the information collection requirements included in the final rule ( as mandated 617 in the statute), EPA does not see the need for tailoring the requirements to different regions of the country, or developing separate standards for different regions. 618 3.12.2 The Rule Should Not Require Sampling and Analysis Commenter Organization Name: Thacker, Barry K Comment Number: 0071 Excerpt Number: 3 Other Sections: NEW  <IP_ADDRESS>  Support of the performance standard Excerpt Text: Furthermore, I support the AAI rule changes because they encourage a performance based approach, rather than a prescriptive " mandatory" application of a " standard,'" and allow for the environmental professional to resolve data gaps based on his or her experience.

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

Commenter Organization Name: Simon, Richard M Comment Number: 0089 Excerpt Number: 4 Other Sections: NEW  <IP_ADDRESS>  Support of the performance standard Excerpt Text: I like the fact that the AAI rule encourages a performance based approach, rather than a prescriptive ' mandatory' application of a ' standard,' and allows for the environmental professional to resolve data gaps based on his or her experience. I also believe that the broader scope of environmental inquiry and wider application of the rule will result in the development of more thorough scopes of services, contracts, and reports. This result will be of significant benefit to my firm, the client, and most of all, the public.

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

Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 4 Excerpt Text: Providing sampling of any nature ( ACM, soils, water, etc.) should not be an integral part of the AAI and the initial ESA preparation. If the basic purpose of the AAI is to determine the criteria to base the performance of a historical/ data search for property use and potential environmental concerns... then sampling should be a follow up, stand alone report based on the conclusions derived from the ESA.... not part of the ESA study.

Response: EPA agrees with the commenter. Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not 619 require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 7 Excerpt Text: I support the draft approach of not requiring sampling. Standard commercial practice is to use the AAI ( Phase I) process to identify potential issues. The concept of using a Phase II process to resolve issues, frequently with the use of sampling, has worked well in standard commercial practice. When you cross over the line from collecting existing data to generating new information many issues need to be resolved. Virtually none of these issues are addressed in the current AAI or ASTM Phase I process. I would support removing any reference to sampling as part of a Phase I/ AAI process.

Response: Please see response to comment number 0097, excerpt 4.

Commenter Organization Name: Belaire, Kent Comment Number: 0267 Excerpt Number: 3 Excerpt Text: The rule requires the EP to prepare a written report which summarizes the results of the inquiry and provide opinions as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances on the property. This is generally consistent with the ASTM standard which has worked well in the past. The AAI rule requires that the report identify data gaps in the information developed as part of the inquiry that affects the EP's ability to identify conditions indicative of releases or threatened releases of hazardous substances to the property. The rule also requires the report include comments regarding the significance of such data gaps on the EP's ability to provide an opinion as to whether the inquiry has identified conditions indicative of a release at the property. This approach allows for the most flexibility in addressing data gaps. The EP may exercise his judgment in determining if data gaps have 620 significantly affected his ability to meet the objective of the AAI standard. And if so, the EP may include in the report his opinion regarding additional investigations and sampling and analyses that may be required to address data gaps.

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

Commenter Organization Name: PBS & J Comment Number: 0270 Excerpt Number: 6 Excerpt Text: Conducting intrusive sampling and laboratory analysis during a Phase I to address " data gaps" is introducing something, which we believe only complicates answering the gap question. Conducting intrusive sampling and laboratory analysis should be done as a means to further in Response: EPA agrees with the commenter. Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Billington, Edward Comment Number: 0284 Excerpt Number: 2 Other Sections: NEW  <IP_ADDRESS>  Support of the performance standard Excerpt Text: I also support the fact that the AAI rule encourages a performance based approach, rather than a mandatory application of a prescriptive standard, and allows for the environmental professional to resolve data gaps based on his or her experience. The broader scope of environmental inquiry and wider application of the rule should result in the development of more thorough scopes of services, contracts, and reports. I believe the result will be of significant benefit to the public. 621 Response: EPA thanks the commenter for the stated support of the rule's provisions.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 10 Excerpt Text: R& W supports the proposal to not require environmental sampling and testing for each AAI study to fill all data gaps. Indiscriminate use of sampling and testing needlessly increases the cost of investigations and usually increases their duration.

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

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 20 Excerpt Text: SAMPLING 1) Will sampling be necessary every time that there is a historical data gap, or if past owners and/ or operators cannot be found or are unwilling to talk? FAA does not believe that sampling should be required for AAI. EPs should determine the degree of obviousness of the presence of contamination based on information and impressions from on site visual inspections, interviews, and data collected pursuant to the proposed standards. The original ASTM E1527 standard was meant to serve as a guideline for the initial Phase I environmental inquiry. If contamination is suspected based on the conclusions of the Phase I/ AAI report, then additional inquiries in the form of a Phase II confirmatory sampling investigation would be warranted. However, it is inappropriate to make this costly and possibly unnecessary exploration standard for all AAI investigations. Subsurface investigation can be quite expensive and would be unnecessary in many cases.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to 622 the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

The rule requires environmental professionals to record and comment only on data gaps " that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property." 69 FR at 52560. The environmental professional is required to exercise discretion in determining what data gaps should be reported. EPA cannot make this any more clear and still retain the flexibility required to evaluate unique properties. Also, the preamble to the proposed rule stated that " the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases." 69 FR at 52560.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 12 Excerpt Text:  Conducting sampling and analysis to address data gaps opens up another Pandora's Box. I have not seen any procedure in SW 840 that addresses how to bridge data gaps.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

EPA's SW 840 guidance provides sampling and testing procedures for solid and hazardous wastes and media containing these wastes. The document is not meant to provide guidance for the conduct of all appropriate inquiries. 623 Commenter Organization Name: Auditing Roundtable, BEAC Comment Number: 0363 Excerpt Number: 3 Excerpt Text: The proposed standard should permit a qualified opinion as to the existence or potential significance of " data gaps."

The proposed rule requires environmental professionals to include in the inquiries report an identification of the data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in or to the subject property. The report must also include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases. [ 69 Fed. Reg. 52560]

As a practical matter, it quite simply may not be feasible for an auditor to know what information the auditor lacks, or to be able to appreciate the significance of information not in the auditor's possession. We believe it is EPA's intention not to have this issue become a source of liability to auditing professionals. Some additional clarification on the nature of the opinion required of the auditor will avoid costly and unnecessary litigation between the auditor and the users of the assessment report over responsibility for data. Lack of clarity on this point will likely significantly drive up costs of site assessments as landowners seek to fill data gaps with Phase IItype intrusive sampling activities as assessors will be reluctant to reach conclusions absent exhaustive information.

This is particularly true in an imperfect world where sources of relevant information may be long gone from the scene by the time the auditor comes in with limited time and budget to perform a reasonable assessment, e. g., the ability to track down prior owners or operators in situations of multiple prior occupiers of a property. Likewise, in the Northeastern US, where industrialization has existed for centuries, the data gaps can be substantial and the significance of such data gaps can range from immaterial to extremely consequential. The approach taken will likely drive extensive sampling in Phase II investigations, and even the ASTM Phase II guidelines are not adequate for a potential buyer to be able to ascertain whether a Phase II investigation is sufficient to qualify for the liability defenses.

We recommend that the environmental professional be required to disclose information gaps and to assess the potential significance of data gaps only to the extent known or reasonably anticipated by the environmental professional.

Response: The rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining what data gaps should be reported and commented upon. EPA agrees with the commenter that if an environmental professional is not aware that 624 information is missing, he or she cannot comment on it. However, the environmental professional must gather the information required to meet the objectives and performance factors in the regulation. The environmental professional should be able to identify whether or not the required information is available or missing. The preamble to the proposed rule stated that " the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases."

Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 13 Excerpt Text: Decision Not to Require Sampling and Analysis. EPA specifically requested public comment on the " decision not to require sampling and analysis as part of the all appropriate inquiries regulations." 69 Fed. Reg. at 52568. USWAG concurs with that decision. However, proposed section 312.20( f) and the preamble introduces confusion by stating that " it may be necessary to conduct sampling and analysis to .. . fully comply with the statutory requirements for the CERCLA liability protections." Ibid. If Congress delegated to EPA prescribing the standards and practices for AAI and sampling and analysis is not part of those standards and practices, how can failure to conduct sampling and analysis as part of AAJ ever be a violation of the statutory requirements for the CERCLA liability protections? The implication of EPA's statement is that there is a statutory requirement for sampling and analysis, at least in some circumstances, and that the regulation must therefore include such a requirement. But in fact, nothing in the statute imposes any such requirement, and EPA has correctly omitted such a requirement from the regulation. EPA should delete the final sentence in section 312.20( f) and should state categorically that whatever the advantages sampling and analysis miglit provide in explaining existing data gaps, sampling and analysis is not required to satisfy AAI. 625 Response: EPA continues to believe that sampling and analysis may be the best approach for addressing data gaps and allowing property owners to fully comply with the statutorily imposed continuing obligations including stopping on going releases and undertaking appropriate care. The statutory criteria for all appropriate inquiries include " the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation."

Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 7 Excerpt Text:  The proposal to not require sampling and analysis as part of the all appropriate inquiries standards.

 Intertox agrees with the U. S. EPA, that sampling and analysis should not be a part of the all appropriate inquiry process. There is no site for which all information can be acquired, ascertained, or determined. There will always be data gaps. While sampling and analysis is a valid environmental activity, it should remain as it traditionally has, a part of the Phase II environmental site assessment process. The principal issue here is that if sampling and analysis is accepted as a data gap preventing tool, then the U. S. EPA will have to develop rules and procedures for sampling and analysis. We believe that well developed and debated sampling and analysis procedures already exist and that the U. S. EPA should be not involved in defining an " all appropriate" sampling and analysis procedure for the environmental site assessment process.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis 626 be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: MBA Comment Number: 0401 Excerpt Number: 3 Excerpt Text: MBA supports the concept of allowing the environmental professional, exercising his or her judgment, to advise the user when the circumstances may be appropriate for limited sampling, if at all, as part of the overall due diligence process.

As a participant on the advisory committee, MBA recognizes the thoughtful and important discussions that occurred during the drafting process, surrounding the use of sampling. In the discussion on how data gaps may be addressed when conducting AAI, it was acknowledged that, despite good faith efforts by the environmental professional and the prospective purchaser to gather information, data gaps may still exist. EPA, and the advisory committee, considered sampling as an option used at the discretion of the environmental professional and user, based on the totality of circumstances, information already gathered, and a review of any data gaps. Sampling is simply one tool that may help the environmental professional convey a fuller picture of the conditions on the property [ Footnote: Please note, EPA explicitly states " Proposed § 312.20( f) points out that one way to address data gaps may be to conduct sampling and analysis." Preamble to proposed rule section II. F. 7, Federal Registrar, 40 CFR Part 312, August 26, 2004].

As EPA stated clearly in numerous sections of the preamble, sampling is not required while conducting AAI [ Footnote: See preamble to proposed rule sections II. F. 7, III. O, and IV, Id.]. The proposed regulation also addresses the role of sampling during the discussion of data gaps, in Section C  Standards and Practices, stating that sampling " may be conducted to develop information to address data gaps.[ Footnote: See § 312.20( f), emphasis added.]." At no other point in AAI is sampling mentioned and there is no language requiring an environmental professional to conduct sampling. EPA is not requiring sampling to successfully complete AAI and MBA agrees with this position. 627 Response: EPA thanks the commenter for the stated support of the rule's provisions.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 9 Excerpt Text: Instead, while the Proposed Rule does not mandate sampling and testing to address potential data gaps, its ambiguous approach to many of the content requirements in the AAI report virtually necessitates such. In addition, EPA actually states, in the regulation that although sampling and testing are not needed, they may be conducted in order to fill in data gaps. Furthermore, the EP's report must include an opinion as to additional appropriate investigation, again leading the inquirer to sampling and testing. Lastly, the Proposed Rule requires the HP and prospective purchaser consider all the information in the report to ascertain the potential presence of a release or threatened release  again, leading the EP to sampling and testing. Sampling and testing are costly and generally not undertaken at the initial evaluation of a property. This cost and burden would be compounded by the fact that under the Proposed Rule, a prospective purchaser would have already expended a great deal of money and resources in preparing the AA1 report itself. As stated previously, in essence, the Proposed Rule has elevated a Phase I ESA to what would traditionally be a Phase II ESA. The costs and burdens of such will not make redevelopment of brownfield sites attractive.

Furthermore, once sampling is undertaken, how much sampling and testing is enough? What protection under the rule is afforded a potential purchaser from a overzealous engineer?

Response: The rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining what data gaps should be reported and commented upon.

Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, 628 including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 5 Excerpt Text: 4) Proposed provisions for addressing data gaps.

a) Page # 52578 b) View: I support addressing data gaps. Specifically the EP should be required to comment on the presence of the data gap( s), and provide an opinion on the relevance and/ or potential risk to the property based on the identified data gap. Under the current practice environmental consultants often ignore data gaps and do not consider their potential risk to the property.

c) Assumptions: The absence of information does not equate to an absence of risk.

d) Burden: Immaterial. The consultant simply needs it identify the missing information and comment upon the risk this missing information creates.

e) Alternative: N/ A.

5) Proposal to not require sampling a) Page # 52571 b) View: Sampling should not be mandated into the Phase I AAI Process. Not all properties should require sampling during the AAI process. Undeveloped or non suspect properties carry much less risk and sampling is not practical. If sampling is appropriate, often the scope of work cannot be adequately developed until after the Phase I report is completed. If little is known about the history of an industrial property, sampling conducted may be inadequate. For example, sampling may be conducted on the eastern side for a UST, only at the conclusion of the Phase I to find there was another UST or Septic System on the western side also.

c) Assumptions: Sampling should not be mandated during the Phase I and/ or based on incomplete information.

d) Burden: Segregation of the Phase I and sampling ( Phase II) may slow down the real estate transaction process. However a proper AAI compliant Phase I would recommend Phase II sampling where appropriate and therefore the AAI process would achieve the performance objectives and properly evaluate the risks. 629 Response: The rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining what data gaps should be reported and commented upon.

Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Thornhill, James Comment Number: 0414 Excerpt Number: 1 Excerpt Text: While the significance of data gaps should be considered by the consultant, sampling should not be required for all appropriate inquiries to be satisfied even if data gaps are present. Although the proposed rule provides that sampling may be performed to develop information to address data gaps in Section 312.20( f), comments as to whether sampling should be required were requested on page 52,560 of the preamble. There are certainly times when Phase II sampling is appropriate based upon the findings of a Phase I. The difficulty with considering sampling to fill data gaps is that there is no guidance for the user as there is a gap in information. For example, if there is a 20 year gap in the history of the use of the property, does a purchaser test soil, groundwater and surface water for all possible contaminants across the entire property? Does the purchase have to conduct a survey for subsurface anomalies to search for tanks and drums? This procedure would run counter to the customary practice of sampling when warranted due to concerns identified in the due diligence such as the presence of a past use that may have utilized chlorinated solvents. If a purchaser has made a good faith effort to review readily available information, he or she should not have to spend tens of thousands of dollars to eliminate the possible unknowns because information regarding a property is simply not available for a period of time. 630 Response: The rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining what data gaps should be reported and commented upon. EPA agrees with the commenter that if an environmental professional is not aware that information is missing, he or she cannot comment on it. However, the environmental professional must gather the information required to meet the objectives and performance factors in the regulation. The environmental professional should be able to identify whether or not the required information is available or missing. The preamble to the proposed rule stated that " the inquiries report include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases."

Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 1 Excerpt Text: Sampling to address data gaps is not practicable. What do you test for? Where do you sample? A very basic sampling routine consisting of three soil borings with soil and groundwater sampling for the basic chemicals of concern identified in most Phase I ESA's costs between $ 3500 to $ 6000. These costs far exceed EPA's estimation of $ 1439.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to 631 address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 4 Excerpt Text: No Phase II  My understanding is that the committee determined that the completion of phase II investigations would not be required in order to satisfy requirements for AAI. I recommend that this be more expressly stated in the rule.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. However, the preamble also clearly states that the final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 5 Excerpt Text: § 312.20 All Appropriate Inquires ( f) 632 In § 312.20 All Appropriate Inquires ( f), the last sentence in this paragraph " Sampling and analysis may be conducted to develop information to address data gaps" should be deleted.

Rationale:

 Providing direction for sampling and analysis is beyond the scope of this regulation and is not addressed in ASTM 1527. The mere suggestion of conducting sampling and analysis to address data gaps will inevitably drive the environmental professional to recommend sampling and analysis to fill a data gap. The frequency at which sampling and analysis will be recommended will automatically increase the costs of environmental site assessments. An environmental professional inherently knows that sampling and analysis is a means of characterizing the site. Furthermore, denial of this recommendation on behalf of the defendant would render the innocent landowner defense insubstantial.

Response: Section 312.20( g) of the final rule points out that one way to address data gaps may be to conduct sampling and analysis. However, the preamble also clearly states that the final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The regulation only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps. The Agency notes that sampling and analysis may be valuable in determining the possible presence and extent of potential contamination at a property. Such information may be valuable for determining how a landowner may best fulfill his or her post acquisition continuing obligations required under the statute for obtaining protection from CERCLA liability. However, the Agency does not believe that the all appropriate inquiries standards should require sampling and analysis given that this type of investigation is conducted prior to the acquisition of a property and generally represents an initial investigation into the environmental conditions of a property. Further investigation of the environmental conditions, including the conduct of sampling and analysis may be more appropriate after this initial investigation and more appropriately imposed on owners of potentially contaminated properties and not upon prospective purchasers. 633 3.12.3 The Agency Should Clarify How Many Years without Data Constitute a Data Gap Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 2 Excerpt Text: Although the term " data gap" is defined in § 312.10 to include a lack of or inability to obtain information, it does not define how many years without data constitute a " data gap".

Response: Data gaps are generally defined as missing information. The term is not limited by any particular period of time. The comment seems only to have relevance to data gaps associated with historical information such as previous owners of a property. In such cases, the environmental professional must determine whether the missing information, due to the type of information or due to the length of time over which information is missing, whether or not the lack of information affects his or her ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

EPA notes that the rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining what data gaps should be reported and commented upon. EPA understands that if an environmental professional is not aware that information is missing, he or she cannot comment on it. However, the environmental professional must gather the information required to meet the objectives and performance factors in the regulation. The environmental professional should be able to identify whether or not the required information is available or missing. The written report should include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases.

Commenter Organization Name: Zutz Comment Number: 0104 Excerpt Number: 2 Excerpt Text: It is our opinion the definition of a data gap is inadequate.

Here's my definition of a data gap  a lack of undefined historical records for an undefined period that later proves significant, but not at the time of conducing the Phase I ESA. Unless the historical sources review under Section 312.24 states a frequency for review, there may always be one additional record that may later prove significant. For example, should city street directories be reviewed at a minimum of 5 year intervals ( current ASTM 1527 00 standard) , or each year? If city directories were not made for a smaller community, isn't the absence of 634 directories a data gap? How frequent should aerial photos be reviewed? Every decade? And won't there always be a data gap of aerial photos prior to manned flight? Likewise, if there are infrequent real estate records ( due to unrecorded or infrequent transfer of the property), won't there be a data gap of real estate records?

If the proposed rules are going to define a data gap, then Section 312.24 should state the minimum frequency of historical reviews.

Response: Please see response to comment number 0093, excerpt 2.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 2 Excerpt Text: We recommend the definition of Data Gap be revised to reflect the following:

 A lack or absence of property infprmation spanning a time period greater than five years would qualify as a data gap.

Without a specific time interval, any time break in information, no matter how short the duration, would be considered a data gap and would need to be addresses under 312.20 ( f).

Response: Please see response to comment number 0093, excerpt 2.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 19 Excerpt Text: DATA GAPS 1) The proposed rule requires the EP to identify data gaps in their inquiries, to explain what actions they took to fill those gaps, and to explain the significance of the gaps to the EP's determination as to whether the subject property may be contaminated. FAA would like EPA to clarify its policy on data gaps in historic information.

For example, the proposed standard to review historical sources of information requires the EP to search as far back as the property was used. This exceeds the previous 50 year search limit specified by ASTM E1527 2000. Many rural areas may not have recorded information any older than the previous 50 year limit. If the EP cannot identify historical sources of information that explain uses of and activities at the property more than 50 years ago, would the EP identify this as a data gap? Is historical information older than 50 years significant, and will it help the EP 635 determine the threat or potential threat of release at the property?

Response: Please see response to comment number 0093, excerpt 2.

EPA notes that the commenter is incorrect in stating that the ASTM E1527 2000 standard requires that an environmental professional search historical records only as far back as 50 years. The standard requires a search as far back as the property's obvious first developed use, or back to 1940, whichever is earlier ( see section 7.3.2 " Uses of the Property" of ASTM E1527 2000).

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 10 Excerpt Text:  It is my understanding that an adequate AAI document may not be all inclusive of every scrap of information that can be collected but rather a presentation that the environmental professional has concluded meets the intent of the rule. It is theoretically possible for a data gap to be one day. But without a reasonable guideline of how to determine what constitutes a data gap the environmental professional will have no leg to stand on if there is information indicating a release or potential release ( I prefer potential release to threatened release) that was available but not reviewed. For example, street ( criss cross) directories are available for some areas on a semiannual basis. Reviewing these for the property and surrounding area can be very time consuming, adding many hours of research time. ASTM Standard Practice 1527 uses 5 years as a reasonable interval. I hope that EPA accepts this. It should Response: Please see response to comment number 0093, excerpt 2.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 17 Excerpt Text:  Data gap: A data gap, if it results in the non discovery of a release, could be as brief as one day. In many situations data is available but the volume available is such that reviewing it would defeat " reasonable cost". " Good faith" as a defense is easily defeated. A reasonable period of time should be set, e. g., the five year period in 1527.

Response: Please see response to comment number 0093, excerpt 2. 636 3.12.4 Review of Information Ordered Closed by Courts Commenter Organization Name: Hodgson, Rory Comment Number: 0208 Excerpt Number: 1 Excerpt Text: What provisions are proposed for the review of information that has been ordered closed by the courts? Should it be emphasized that the Environmental Professional is a fiduciary serving in a position of " trust" and can only render informed judgments when all data gaps are removed?

Response: EPA notes that the rule requires environmental professionals to record and comment only on data gaps that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property. The environmental professional is required to exercise discretion in determining which data gaps should be reported and commented upon. The environmental professional must gather the information required to meet the objectives and performance factors in the regulation. The environmental professional should be able to identify whether or not the required information is available or missing. If information ordered closed by a court is essential to the investigation and the environmental professional cannot obtain the necessary information from any other source, then the missing or unavailable information should be noted as a data gap. The written report should include comments regarding the significance of any data gaps on the environmental professional's ability to provide an opinion as to whether the inquiries have identified conditions indicative of releases or threatened releases. 637 3.13 Shelf Life of the AAI Report Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 3 Excerpt Text: In regards to § 312.20.3, does the 180 day clock start at the most conservative point or least conservative point? For example, does the 180 day clock start when the owner is interviewed or when the environmental professional makes their declaration? These dates could differ by four weeks or more.

Response: The final rule requires that certain aspects of the all appropriate inquiries investigation be updated if the investigation was completed more than 180 days prior to the date of acquisition of the property ( or the date on which the prospective landowner takes title to the property) to ensure that an all appropriate inquiries investigation accurately reflects the current environmental conditions at a property. To increase the potential that information collected about the conditions of a property is accurate, as well as increase the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report are based on current and relevant information, the final rule requires that many of the components of the previous inquiries be updated within 180 days prior to the date of acquisition of the property. The components of the all appropriate inquiries that must be updated within 180 days prior to the date on which the property is acquired are:   interviews with past and present owners, operators, and occupants ( § 312.23);   searches for recorded environmental cleanup liens ( § 312.25);   reviews of federal, tribal, state, and local government records ( § 312.26);   visual inspections of the facility and of adjoining properties ( § 312.27); and   the declaration by the environmental professional ( § 312.21( d)).

Also, the final rule retains the proposed requirement that in all cases where a prospective landowner is using previously collected information, the all appropriate inquiries for the current purchase must be updated to include a summary of any relevant changes to the conditions of the property and any specialized knowledge of the prospective landowner.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 16 Excerpt Text: FAA suggests that EPA consider an abbreviated 180 day requirement for re assessment, including:

 Updating release data, as new releases may have occurred during the 180 day period 638  Conducting interviews by phone with the current landowners or operators regarding changes in conditions and new activities at the site since the initial site visit and interviews  Reviewing federal, state, tribal, and local government databases that have been updated since the initial AAI were completed.