Individuals licensed as P. E. s or P. G. s are restricted to practicing only in their field of expertise. To obtain such a license, most states require that individuals have accumulated three or more years of experience in their field. Therefore, the Agency has determined that P. E. s and P. G. s with three years of full time relevant experience ( as defined in the final rule) are sufficiently qualified to oversee the conduct of all appropriate inquiries investigations. 342 Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this regard. The final rule also requires that all environmental professionals remain current in their field.

Commenter Organization Name: Young, Richard Comment Number: PM 0207 0001 Excerpt Number: 2 Excerpt Text: A state licensed engineer or geologist cannot be considered as being equivalent to a bachelor, master or doctorate degree in environmental education unless they've received comparable training in environmental science. It's a false conclusion that all professional engineers and geologists are knowledgeable about environmental matters.

It would be fair to state that engineers and geologists with three years of verified work experience would be comparable to somebody with an environmental science degree who also had three years of practical work experience and the same thing could be true, also, of five years work experience if EPA so decided to view it in that manner.

Response: EPA understands that not all engineers are knowledgeable in site assessment processes and techniques. For that reason, the definition of environmental professional provided in the final rule includes both experience and educational qualifications.

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

Further, note that the final rule states, " Environmental Professional means: ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." This definition requires that any individual conducting an all appropriate inquiry assessment must meet these minimum requirements as well as meet the education and experience requirements. No class of individuals receives special treatment in this 343 regard. The final rule also requires that all environmental professionals remain current in their field.

See also the response to comment number 0072 ( excerpt 2).

Commenter Organization Name: Young, Richard Comment Number: PM 0207 0001 Excerpt Number: 5 Excerpt Text: The law is too stringent. It forces everybody, in effect, to become a professional engineer or a geologist when they are not professional geologist, pardon me when it's not when it's an established standard for all other EPA. Providing or establishing professional engineers and geologists as a standard for brownfields is not appropriate at this venue. A better venue for this issue is outside the brownfields law and in front of a U. S. EPA administrative law judge when the case arises.

Response: Although the final rule recognizes tribal and state licensed P. E. and P. G. s and other such government licensed environmental professionals with three years of experience to be environmental professionals, the rule does not restrict the definition of an environmental professional to these licensed individuals. The definition of an environmental professional also includes individuals who hold a Baccalaureate or higher degree from an accredited institution of higher education in engineering or science and have the equivalent of five ( 5) years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries. In addition, individuals with ten years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries qualify as environmental professionals for the purpose of conducting all appropriate inquiries. Individuals with these qualifications most likely will possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property, sufficient to meet the objectives and performance factors included in § 312.20( e) and ( f). 344 2.3.2 Revise the Proposed Rule to Include a Provision Relieving the EP of a Liability for Contaminant Exposure of Persons Working under His/ Her Supervision or Responsible Charge Commenter Organization Name: Hodgson, R S Comment Number: 0075 Excerpt Number: 2 Excerpt Text: My second concern is over the possible contaminant exposure of those working under the responsible charge of the Registered Professional Engineer and/ or Registered Professional Geologist. If the EPA requires that these people be included in the process then provisions should be included for the additional liability that their presence brings to the process. This liability should not fall upon the Registered Professional Engineer and/ or Registered Professional Geologist if in their opinion the inclusion of these additional people in the process is unnecessary.

Response: Other than the requirement that an all appropriate inquiries investigation be managed by, or conducted under the supervision or responsible charge of, a person meeting the definition of environmental professional, specific staffing issues related to the conduct of individual site assessment investigations is beyond the scope of the rule. The final rule allows for individuals who do not meet the definition of environmental professional to contribute to the all appropriate inquiries investigation as long as their activities are conducted under the supervision or responsible charge of an environmental professional. The final rule includes no other restrictions or requirements with regard to how the investigations are staffed. The Agency has no position on the staffing and liability issues raised by the commenter. 345 2.3.3 Adopt the Definition of EP as Specified in the ASTM Standard Commenter Organization Name: Froehlich, R. A. Comment Number: 0119 Excerpt Number: 1 Other Sections: NEW  2.3.1  Professional engineer certification and professional geologist certification do not ensure high level of professional ability Excerpt Text: If the objective of this change in rules is to ensure that all appropriate inquiry is performed by a qualified environmental professional, the qualifications should mirror the qualifications of environmental professionals as included in the current ASTM Standard on credentials for environmental professionals. Merely licensing as a P. E. or P. G. does not ensure the highest levels of professionalism in environmental professionals. Independent credentialling by an organization that meets the requirements of the ASTM standard which is supported by the environmental professional associations is the best way to ensure that all appropriate inquiry is made by well qualified environmental professionals. I stongly recommend that environmental professionals should be certified as a Qualified Environmental Professional by the Institute for Professional Environmental Practice. The IPEP certification program, one of the ASTM compliant certification programs, since it is supported by the Air & Waste Management Association, the Water Environment Federation, the National Association of Environmental Managers, the American Industrial Hygiene Association, the Solid Waste Association of North America, the American Association of Environmental Engineers, and several other environmental professional organizations. All of these professional organizations existed well before the certification issues arose, and each of the sponsoring organizations supports the QEP certification as the only environmental professional certification.

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

Commenter Organization Name: Peyton, J. Comment Number: 0216 346 Excerpt Number: 4 Excerpt Text: Or better yet, simply follow what ASTM has done since 1993 and let the free market determine who can and cant provide AAI services.

Response: EPA determined through the discussions of the negotiated rulemaking committee during the development of the proposed rule and through an analysis of public comments received in response to the proposed rule that the final rule should include a definition of environmental professional. The statute requires that all appropriate inquiries include an inquiry conducted by an environmental professional. EPA determined that to effectively implement the statute and define the intent of the law it is essential to define who should oversee the conduct of the inquiry.

See also the response to comment number 0353, excerpt 4. 347 2.3.4 Persons Who Do Not Qualify as EPs Should Not Be Allowed to Assist in the Conduct of All Appropriate Inquiries Commenter Organization Name: Academy of Certified Hazardous Materials Managers Comment Number: 0140 Excerpt Number: 3 Excerpt Text: In reference to the posed question concerning whether or not persons not meeting the definition of an EP can contribute to the Conduct of All Appropriate Inquiries, we recommend that only EPs be able to perform those duties as prescribed by the proposed rule. It is not logical to have undergone all of the discussions as to whom is a qualified EP, as proposed, and then to negate that definition by allowing lesser qualified individuals to perform the activities. By allowing non EPs to perform the duties EPA is suggesting that an EP is only fulfilling a managerial or oversight function and if so; why is the proposed EP definition so specifically limiting?

Response: The final rule retains the allowance for individuals not meeting the definition of an environmental professional to contribute to and participate in the all appropriate inquiries on the condition that such individuals are conducting inquiries activities under the supervision or responsible charge of an individual that meets the regulatory definition of an environmental professional. EPA determined that some activities required by the final rule may be conducted effectively and efficiently by individuals who may not necessarily meet the definition of environmental professional. For example, research regarding past owners of a property may best be performed by a title search expert or an attorney. Data base searches to determine past uses of a property may be conducted by a research assistant or a librarian.

This provision of the final rule allows for a team of individuals working for the same firm or organization ( e. g., individuals working for the same government agency) to share the workload for conducting all appropriate inquiries for a single property, provided that one member of the team meets the definition of an environmental professional and reviews the results and conclusions of the inquiries and signs the final report. All activities conducted during the course of the inquiries must be conducted under the supervision of responsible charge of an environmental professional. The final rule requires that the final review of the all appropriate inquiries and the conclusions that follow from the inquiries rest with an individual who qualifies as an environmental professional, as defined in § 312.10.

Commenter Organization Name: Diamond, Jason Comment Number: 0251 Excerpt Number: 4 Excerpt Text: 348 However, I would like to express my concern that the AAI rule allows for individuals who do not qualify as an EP to conduct an environmental assessment " under the supervision or responsible charge of" an EP. The AAI rule places an enormous importance on professional judgment and experience; however, the rule permits individuals who are not qualified EPs to conduct site visits, interviews, or visual inspections. This compromises the high standards for EPs ultimately responsible for the quality and results of the work. Allowing personnel who do not meet the qualifications of an EP to conduct most of the work required for an AAI under the supervision of a qualified EP dilutes the quality of the assessment. Halff Associates, Inc. will only allow individuals who meet the requisite education, training, and experience to practice as environmental professionals. I believe that the proposed rule should include minimum education, licensure, and/ or certification requirements even for those who are performing work under the supervision of an EP.

Response: Please see response to comment number 0140, excerpt 3.

Commenter Organization Name: PIRG Comment Number: 0258 Excerpt Number: 5 Excerpt Text: 1. Environmental Inquiries by Unqualified Personnel Section 223 of the Brownfields Law provides that certain specific criteria must be included in the AAI regulations. Among other requirements, the law states that the Administrator shall require in the AAI rules:

( I) The results of an inquiry by an environmental professional This criterion is also specifically addressed in the 97 ASTM standard. The definition contained in the 97 ASTM standard requires that an environmental professional possess sufficient training and experience necessary to conduct site reconnaissance and interviews and must have the ability to develop opinions and draw conclusions about the condition of the property at issue. The 97 ASTM Standard also requires that site reconnaissance, interviews, as well as the review and interpretation of the information upon which the report is based must be performed by the environmental professional. Other, more limited activities, such as records review, may be performed under the supervision of an environmental professional.

Unfortunately, under Section 312.21 of the draft proposed AAI rules, " Results of an Inquiry by an Environmental Professional" there is no requirement that an environmental professional perform any of these duties, in fact non professionals can conduct the entire inquiry, including site inspections and interviews if the are simply under the charge or supervision of an environmental professional. Allowing personnel who are not qualified as environmental professionals to perform these critical duties is inconsistent with the 97 349 ASTM standard and is not supported by the Brownfields law.

The dilution in the draft proposed AAI rules of the central role played by the qualified Environmental Professional on key matters undermines the reliability of the AAI standard, greatly increasing the likelihood that serious environmental problems will be missed. This defeats a central the purpose of the AAI standard to assess the condition of a site prior to sale or transfer and to ensure that the condition is taken into account in the transaction and in the purchaser's future activities at the site.

Response: The final rule assures that a highly qualified environmental professional manages the conduct of all of the required all appropriate inquiries activities by:

1. Establishing a definition of environmental professional that sets stringent qualifications for the individual responsible for all activities conducted during the all appropriate inquiries investigation ( see § 312.10). These qualifications are significantly more stringent than the requirements of the ASTM E1527 97 standard and will serve to raise the standard of quality of environmental site assessments. 2. Requiring that the environmental professional, after reviewing the results of all inquiries and data searches required by the regulation, provide a written report of findings that includes an opinion of the environmental conditions of the property and documents all conditions indicative of releases and threatened releases of hazardous substances on, at, in or to the property ( see § 312.21( c)). 3. Requiring that the environmental professional sign the written report that documents all results of the all appropriate inquiries investigation. When signing the report, the environmental professional must include two statements with the signature block. One must state that the person signing the report meets the required qualifications of an environmental professional and the other must state that the all appropriate inquiries investigation was completed in compliance with the final regulations ( see § 312.21( d)).

The final rule retains the allowance for individuals not meeting the definition of an environmental professional to contribute to and participate in the all appropriate inquiries on the condition that such individuals are conducting inquiries activities under the supervision or responsible charge of an individual that meets the regulatory definition of an environmental professional. EPA determined that some activities required by the final rule may be conducted effectively and efficiently by individuals who may not necessarily meet the definition of environmental professional. For example, research regarding past owners of a property may best be performed by a title search expert or an attorney. Data base searches to determine past uses of a property may be conducted by a research assistant or a librarian.

This provision of the final rule allows for a team of individuals working for the same firm or organization ( e. g., individuals working for the same government agency) to share the workload for conducting all appropriate inquiries for a single property, provided that one member of the team meets the definition of an environmental professional and reviews the results and conclusions of the inquiries and signs the final report. All activities 350 conducted during the course of the inquiries must be conducted under the supervision or responsible charge of an environmental professional. The final rule requires that the final review of the all appropriate inquiries and the conclusions that follow from the inquiries rest with an individual who qualifies as an environmental professional, as defined in § 312.10.

In addition to establishing who must oversee the conduct of the all appropriate inquiries activities and prescribing the types of activities that must be conducted to address each of the statutory criteria, the final rule establishes clear objectives for the inquiries and a set of performance factors that must be met in carrying out the requirements of each criteria. The objectives clearly establish the types of information that must be collected during the conduct of the inquiries ( see § 312.20( d)). The performance factors establish quality parameters that must be met when collecting the information and undertaking the activities required by the statutory criteria ( see § 312.20( e)). The objectives and performance factors must be followed when conducting the activities required to meet each criteria. They serve to guide the conduct of all activities required by the statutory criteria and ensure that all activities are conducted with clear objectives and to a standard of high quality.

Commenter Organization Name: Belaire, Kent Comment Number: 0267 Excerpt Number: 2 Excerpt Text: The AAI rule allows for an environmental assessment to be conducted " under the supervision or responsible charge of, an EP." The AAI rule places an enormous importance on professional judgment and experience, however, the rule permits individuals who are not qualified EPs to conduct site visits, interviews, or visual inspections. This compromises the high standards for EPs ultimately responsible for the quality and results of the work. Allowing personnel who do not meet the qualifications of an EP to conduct most of the work required for Phase I under the supervision of a qualified EP dilutes the quality of the assessment. Halff Associates only allows individuals who meet the education, training, and experience requirements to practice as environmental professionals. The rule should include minimum education requirements consistent with the requirements for an EP, for those who perform AAI studies under the supervision of an EP.

Response: Please see response to comment number 0140, excerpt 3.

Commenter Organization Name: Congressmen Dingell, Boxer, et al Comment Number: 0332 Excerpt Number: 4 Excerpt Text: Section 101( 35)( B) of the Comprehensive Environmental Response, Compensation, and 351 Liability Act ( CERCLA) as amended by section 223 of the Brownfields law requires that the standards and practices established in the AAI rule shall include the results of an inquiry by an environmental professional. The law clearly requires that the inquiry be conducted by an environmental professional in accordance with generally accepted good commercial and customary standards and practices. Even under the interim standard established in the Brownfields law, the American Society for Testing and Materials Standard E 1527 97, the key elements of an inquiry, including the site inspections and critical interviews, must be conducted by an environmental professional.

Under Section 312.21 of the proposed AAI rule, an environmental professional is not required to conduct the inquiry. In fact, none of the detailed qualifications for an environmental professional established in the proposed rule are necessary for the person actually conducting the inquiry. This includes site inspections and interviews with hazardous materials experts associated with the site. An environmental professional need not participate directly in the inquiry at all, but need only supervise or have the person conducting the inquiry under his or her charge. This is inconsistent with the intent of the Brownfields law and with the generally accepted good commercial and customary standards and practices codified in the interim requirements.

The probability of missing an environmental problem becomes unacceptably high when the person conducting the inquiry on the ground does not have the experience or judgment of an environmental professional. The consequences are serious.

It is worth noting that EPA itself recognizes the importance of having an environmental professional actually conduct critical elements of the inquiry in the preamble to the proposed AAI rule. " EPA believes that the professional judgment of an individual meeting the proposed definition of environmental professional is vital to ensuring that all circumstances at the property indicative of environmental conditions and potential releases or threatened releases are properly identified and analyzed" ( 67 Federal Register 52565). EPA recognizes and recommends that an environmental professional conduct this portion of the inquiry, but does not require it. EPA must require it as provided in the Brownfields law.

Response: The final rule assures that a highly qualified environmental professional manages the conduct of all of the required all appropriate inquiries activities by:

1. Establishing a definition of environmental professional that sets stringent qualifications for the individual responsible for all activities conducted during the all appropriate inquiries investigation ( see § 312.10). These qualifications are significantly more stringent than the requirements of the ASTM E1527 97 standard and will serve to raise the standard of quality of environmental site assessments. 2. Requiring that the environmental professional, after reviewing the results of all inquiries and data searches required by the regulation, provide a written report of findings that includes an opinion of the environmental conditions of the property and documents 352 all conditions indicative of releases and threatened releases of hazardous substances on, at, in or to the property ( see § 312.21( c)). 3. Requiring that the environmental professional sign the written report that documents all results of the all appropriate inquiries investigation. When signing the report, the environmental professional must include two statements with the signature block. One must state that the person signing the report meets the required qualifications of an environmental professional and the other must state that the all appropriate inquiries investigation was completed in compliance with the final regulations ( see § 312.21( d)).

The final rule retains the allowance for individuals not meeting the definition of an environmental professional to contribute to and participate in the all appropriate inquiries on the condition that such individuals are conducting inquiries activities under the supervision or responsible charge of an individual that meets the regulatory definition of an environmental professional. EPA determined that some activities required by the final rule may be conducted effectively and efficiently by individuals who may not necessarily meet the definition of environmental professional. For example, research regarding past owners of a property may best be performed by a title search expert or an attorney. Data base searches to determine past uses of a property may be conducted by a research assistant or a librarian.

This provision of the final rule allows for a team of individuals working for the same firm or organization ( e. g., individuals working for the same government agency) to share the workload for conducting all appropriate inquiries for a single property, provided that one member of the team meets the definition of an environmental professional and reviews the results and conclusions of the inquiries and signs the final report. All activities conducted during the course of the inquiries must be conducted under the supervision or responsible charge of an environmental professional. The final rule requires that the final review of the all appropriate inquiries and the conclusions that follow from the inquiries rest with an individual who qualifies as an environmental professional, as defined in § 312.10.

In addition to establishing who must oversee the conduct of the all appropriate inquiries activities and prescribing the types of activities that must be conducted to address each of the statutory criteria, the final rule establishes clear objectives for the inquiries and a set of performance factors that must be met in carrying out the requirements of each criteria. The objectives clearly establish the types of information that must be collected during the conduct of the inquiries ( see § 312.20( d)). The performance factors establish quality parameters that must be met when collecting the information and undertaking the activities required by the statutory criteria ( see § 312.20( e)). The objectives and performance factors must be followed when conducting the activities required to meet each criterion. They serve to guide the conduct of all activities required by the statutory criteria and ensure that all activities are conducted with clear objectives and to a standard of high quality. 353 Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 3 Excerpt Text: We understand that professionals who do not meet the proposed definition can still perform AAIs under the supervision of those who do meet the definition; however, we contend that we will derive neither benefit nor improvement in thoroughness and accuracy to the AAI process. Additionally, organizations will incur additional costs due to the need to review an individual's work and AAIs often have short deadlines that could easily be impacted due to the unavailability of a " qualified" reviewer.

Response: Please see response to comment number 0140, excerpt 3.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 15 Excerpt Text: Non  EP Supervised Work under EP a) Page # 52555 b) View: The Goal of AAI is to increase quality of the Phase I, not to shortcut the process. All non clerical portions of the Phase I should be conducted by the EP.

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

d) Burden: Having EP's conduct the non clerical aspects of the Phase I will increase quality and cost.

Response: Please see response to comment number 0140, excerpt 3.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 17 Excerpt Text: All Non clerical tasks to be done by EP. 354 a) Page # 52571 b) View: The Goal of AAI is to increase quality of the Phase I, not to shortcut the process. All non clerical portions of the Phase I should be conducted by the EP.

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

d) Burden: Having EP's conduct the non clerical aspects of the Phase I will increase quality and cost.

Response: Please see response to comment number 0140, excerpt 3.

Commenter Organization Name: Sierra Club & NET Comment Number: 0419 Excerpt Number: 2 Excerpt Text:  The Proposed AAI Rule Allows Unqualified Personnel To Conduct Key Elements Of The Environmental Inquiry Under Section 312.21 of the proposed AAI rules, non professionals can conduct the environmental inquiry at a site, including site inspections and interviews, as long as they are under the charge or supervision of an environmental professional. Section 223 of the Brownfields Law expressly requires that an Environmental Professional conduct the inquiry, and the interim 97 ASTM Standard makes clear there are many instances where there is no substitute for an environmental professional's experience and judgment and it expressly requires the environmental professional to conduct the site inspection and the interviews.

Mere oversight of unqualified personnel provides very little protection when only a trained eye is likely to find environmental problems during a visual inspection. Interviews are also of limited value when the person conducting the interview does not have the experience to know what follow up questions to ask. When key portions of the inquiry are not conducted by qualified personnel, the likelihood of missing serious environmental threats rises dramatically. The proposed AAI rule allows this result.

Response: Please see response to comment number 0332, excerpt 4. 355 Commenter Organization Name: Sierra Club & NET Comment Number: 0419 Excerpt Number: 4 Excerpt Text:  The Proposed AAI Rule Allows Unqualified Personnel To Conduct Interviews And Eliminates Specific Requirements in the Interim 97 ASTM Standard That Ensure A Consistent Standard Is Maintained For Conducting And Documenting Interviews Sections 312.21 ( results of an inquiry by an environmental professional) and 312.23 ( interviews) of the proposed AAI rule allow unqualified personnel to conduct interviews. As discussed above, inexperienced interviewers are far less likely to ask the appropriate follow up questions and identify environmental conditions of concern. Given the dynamic nature of an interview and the technical expertise required in this area, " supervision" does not mean a great deal if the supervisor is not present for and does not participate in the interviews.

Response: The final rule assures that a highly qualified environmental professional manages the conduct of all of the required all appropriate inquiries activities by:

1. Establishing a definition of environmental professional that sets stringent qualifications for the individual responsible for all activities conducted during the all appropriate inquiries investigation ( see § 312.10). These qualifications are significantly more stringent than the requirements of the ASTM E1527 97 standard and will serve to raise the standard of quality of environmental site assessments. 2. Requiring that the environmental professional, after reviewing the results of all inquiries and data searches required by the regulation, provide a written report of findings that includes an opinion of the environmental conditions of the property and documents all conditions indicative of releases and threatened releases of hazardous substances on, at, in or to the property ( see § 312.21( c)). 3. Requiring that the environmental professional sign the written report that documents all results of the all appropriate inquiries investigation. When signing the report, the environmental professional must include two statements with the signature block. One must state that the person signing the report meets the required qualifications of an environmental professional and the other must state that the all appropriate inquiries investigation was completed in compliance with the final regulations ( see § 312.21( d)).

The final rule retains the allowance for individuals not meeting the definition of an environmental professional to contribute to and participate in the all appropriate inquiries on the condition that such individuals are conducting inquiries activities under the supervision or responsible charge of an individual that meets the regulatory definition of an environmental professional. Interviews are conducted for the purpose of attaining information on present and past uses and ownerships of the property. Many types of individuals may be skilled interviewers and may be able to obtain this type of information from property owners. EPA maintains that it is important that a person meeting the qualifications of an environmental professional review the results of all activities 356 conducted during the all appropriate inquiries investigation and render an opinion with regard to the potential environmental conditions of a property based upon all results. However, EPA maintains that it is not essential that the environmental professional conduct every activity. In fact, some activities may best be performed by persons with specific skills not held by the environmental professional. 357 2.3.5 The Rule Should Provide Examples of Relevant Experience Commenter Organization Name: Leech Lake Ojibwe Comment Number: 0125 Excerpt Number: 2 Excerpt Text: Comment # 2: The Time Period during Which " Relevant Experience" Must Have Been Obtained is Unclear and Should Be Clarified.

The definition of an EP under the proposed rule includes a reference to " relevant experience." While EPA defines this term in § 312.10( b), it leaves unclear the time period during which relevant experience must have been accumulated. For example, must an individual have acquired the relevant experience  whether for three, five or ten years  in the years immediately before the promulgation of the final rule? If not, is there a maximum period during which such experience must have been obtained?

By way of example, if a person has an undergraduate degree in geology and five full time years of relevant experience, but acquired that experience 15 years earlier without having performed any subsequent work in the field, would that person still qualify as an EP? The Band is concerned that while an individual might qualify as an EP under the letter of the rule in this scenario, he or she may lack an understanding of recent developments in the field or of the latest technological advancements during the intervening time period. Such a deficiency has the potential of putting Tribes, including the Band, and other parties at risk.

Response: To qualify as an environmental professional for the purpose of the final rule on all appropriate inquiries, individuals must simply meet the qualifications of the definition of an environmental professional. The final rule does not include restrictions on when a person accumulates the required years of full time relevant experience. However, the final rule does require that environmental professionals remain current in their field of expertise. Also, the final rule requires that environmental professionals " possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases ( per ' 312.1( c)) to the surface or subsurface of a property, sufficient to meet the objectives and performance factors in ' 312.20( e) and ( f)." 358 2.3.6 Revise the Proposed Rule to Allow Individuals to Accumulate the Required Ten Years of Experience after the Promulgation of the Rule Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 2 Excerpt Text: Also, DEQ appreciates EPA's willingness to " grandfather" in as environmental professionals people without a science degree and a number of years of experience as of the date the rule is promulgated. However, DEQ believes this option should also be considered for people that acquire a number of years of experience past the promulgation date. If a person has attended environmental trainings and educational courses and has enough experience to successfully conduct AAI investigations, it should not be important what their degree is in. In addition, a person may work under an environmental professional as a team member being trained and educated about AAI's for several years but may never be considered an " Environmental Professional" because he or she does not have the appropriate degree. Having a degree in something other than a science field may be beneficial to conducting AAI investigations because AAI investigations are primarily research based. During an AAI investigation, design work and sampling are typically not involved. DEQ believes that a bachelor's degree with five years of relevant full time experience is more appropriate as part of the definition of an " Environmental Professional" for a person to be " grandfathered." Also, the person should not need to have the five years of experience as of the date of the rule. The proposed AAI rule excludes from future consideration people who have the knowledge and experience to conduct AAI investigations but do not have a degree in the sciences. We ask EPA to reconsider the number of years of experience required to perform AAI without a science degree and to allow people who meet the requirements after rule promulgation to be considered environmental professionals.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause." 359 The Agency made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out all appropriate inquiries.

Commenter Organization Name: Greenwood, Harriet Comment Number: PM 0127 0008 Excerpt Number: 5 Excerpt Text: The best existing training for environmental professionals is relevant on the job experience, building on a solid academic background. 312.10 ( B)( 2)( IV) would be strengthened by removing the phrase, as of the date of the promulgation of this rule, and simply read, have a bachelor or higher degree from an accredited institution of higher education and the equivalent of ten years with a full time relevant experience.

The value of a degree in any field, plus a significant amount of on the job experience will not expire as of the date of this rule. A potential environmental professional with nine years of experience, as of that date, should have the chance to gain the status when the ten years have been achieved.

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

The Agency made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high 360 standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out all appropriate inquiries. 361 2.3.7 Ramifications/ Penalties for an Unqualified Non EP Signing an AAI Statement Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 8 Excerpt Text: 8 Steve Myers EP Penalties if Wrong/ Unqualified 312.21( d), 312.24( b), 312.26( d), and 52561 62 What is the penalty for an environmental professional for signing such a statement if they are not qualified and who will determine if the environmental professional's judgment was appropriate? If, in the end, the qualification standards of an environmental professional and an owner's ability to claim an ' Innocent Landowner' defense will be ruled on by the courts, why set narrow arbitrary standards for who may be an environmental professional in the first place?

Response: EPA determined, through the discussions of the negotiated rulemaking committee during the development of the proposed rule and through an analysis of public comments received in response to the proposed rule, that the final rule should include a definition of environmental professional. The statute requires that all appropriate inquiries include an inquiry conducted by an environmental professional. EPA determined that to effectively implement the statute and define the intent of the law it is essential to define who should oversee the conduct of the inquiry.

The marketplace and ultimately the courts will determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. Ultimately, the penalty for undertaking an all appropriate inquiries investigation that is not overseen or managed by an individual who qualifies as an environmental professional is disqualifying the owner or grantee from receiving liability protection under the law. This is the ultimate incentive for property owners to be active participants in the process and to seek out the best, most qualified individuals to conduct all appropriate inquiries assessments.

See also the response to comment number 0353, excerpt 4.

Commenter Organization Name: IPEP Comment Number: 0266 Excerpt Number: 6 Excerpt Text: Personal Liability of Environmental Professionals Another issue of concern expressed in EPA's October 2003 NODA, which is not addressed in the subject proposed CERCLA regulation, is the personal liability of those 362 who would be allowed to perform AAIs for real property. Although state ( and territorial) licensing boards have the authority to investigate complaints of negligence or incompetence, and may impose fines or take other disciplinary actions against those determined to have improperly practiced as a professional engineer or professional geologist, such disciplinary action is rarely demanded or taken against licensed professional engineers, professional geologists, etc. This is because it is difficult to prove that an individual is negligent or incompetent to practice in the field of his/ her licensure. It is much more frequent that other remedies are embraced to address alleged negligence or incompetence. Both individuals and organizations that perceive they have been so compromised typically enforce contractual terms and conditions first, where financial penalties carry enormous weight with licensed individuals. If these measures fail, relief and damages may be sought through arbitration, a practice that is being used ever more frequently. If such matters still cannot be resolved, civil or criminal legal action can be taken against an individual practitioner and/ or the organization that employs him/ her. And such claims typically seek to recover damages available from insurance carriers who provide professional liability insurance for licensed practitioners and their employers.

However, it is not the threat of action by a state licensing board or potential civil or criminal legal actions that empowers the professional licensure system to function effectively across the country. Professional engineers, professional geologists, licensed surveyors, licensed medical practitioners, etc. are all required to abide by a code of ethical behavior that places public safety, health, and welfare above their individual or employers' interests, and the vast majority of licensed professionals recognize the seriousness of maintaining their personal credibility and integrity in the marketplace of their profession. They understand that any action they take that may cast doubt on their professional competence or integrity threatens their professional reputation and financial security or ability to practice their chosen profession.

Similarly, those individuals who have earned credentials from certification programs that are compliant with ASTM E1929 98 for environmental professionals are required to abide by code of ethics that are essentially equivalent to those established by state licensing boards. Furthermore, ASTM E1929 98 mandates that for a certification program to maintain its accreditation, it must include a recertification component. This component must require that for certificants to maintain their credential, they must engage in continuing professional development activities suitable to their profession. Such a mandate has been in place for only a limited number of state licensure programs in the past for professional engineers, but most states are expected to have incorporated this requirement for professional license renewal by the end of this decade. Thus, the perception that threat of state licensure board actions has significant impact as a policing mechanism to discourage negligence or incompetence is a less than compelling basis for limiting the definition of Environmental Professional to the definition in § 312.10( b)( 1) of the proposed rule.

Response: The marketplace and ultimately the courts will determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be 363 challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. Ultimately, the penalty for undertaking an all appropriate inquiries investigation that is not overseen or managed by an individual who qualifies as an environmental professional is disqualifying the owner or grantee from receiving liability protection under the law. This is the ultimate incentive for property owners to be active participants in the process and to seek out the best, most qualified individuals to conduct all appropriate inquiries assessments.

The final rule does not recognize or reference any private party professional certification standards. Such an approach would require that EPA review the certification requirements of individual organizations to determine whether or not each organization's certification requirements meet or exceed the regulatory qualifications for an environmental professional. Given that there may be many such organizations and given that each organization may review and change its certification qualifications on a frequent or periodic basis, we conclude that such an undertaking is not practicable. EPA does not have the necessary resources to review the procedures of each private certification organization and review and approve each organization's certification qualifications. Therefore, the final rule includes within the regulatory definition of an environmental professional, general performance based standards or qualifications for determining who may meet the definition of an environmental professional for the purposes of conducting all appropriate inquiries. These standards include particular education and experience qualifications. The final rule does not recognize, or reference, any private organization's certification program within the context of the regulatory language. However, the Agency notes that any individual with a certification from a private certification organization where the organization's certification qualifications include the same or more stringent education and experience requirements as those included in today's final regulation will meet the definition of an environmental professional for the purposes of this regulation.

Commenter Organization Name: OSBGE Comment Number: 0291 Excerpt Number: 3 Excerpt Text: EPA's proposed definition of an " environmental professional" is very broad and may result in sending confusing messages to unregistered " environmental professionals" and to the public in general, who may unknowingly hire unregistered " environmental professionals" to in fact conduct geologic work. As such, the public may not be properly protected from the consequences of geologic work performed by non qualified, unregistered " environmental professionals". EPA needs to clearly articulate that " environmental professionals" must comply with State laws before seeking to conduct work under the CERCLA provisions.

Response: The commenter's concern is addressed in the final rule. The final rule states, " The definition of environmental professional provided above does not preempt state 364 professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work, a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in ' 312.21( b)."

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 10 Excerpt Text: 1) What will the penalty be for someone who signs an AAI report if he or she does not meet the definition of an environmental professional ( EP)? Who will determine whether the EP's judgment was appropriate? Will EPs be liable for any errors or omissions in information from third party AAI reports if that information meets the proposed requirements for using previous information?

Response: The marketplace and ultimately the courts will determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. Ultimately, the penalty for undertaking an all appropriate inquiries investigation that is not overseen or managed by an individual who qualifies as an environmental professional is disqualifying the owner or grantee from receiving liability protection under the law. This is the ultimate incentive for property owners to be active participants in the process and to seek out the best, most qualified individuals to conduct all appropriate inquiries assessments.

The Agency does not want to speculate on liability based upon contractual obligations between parties. The parties are free to negotiate these issues as they deem appropriate.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 18 Excerpt Text:  Environmental Professional: delete all after paragraph ( 1). It would be nice if there was a real penalty for violators.

Response: Please see response to comment number 0336 ( excerpt 1) and comment number 0334 ( excerpt 10). 365 2.3.8 To Ensure that EPs are Qualified, a National Test and/ or Training Should Be Established Commenter Organization Name: Gaugler, Earl Comment Number: 0327 Excerpt Number: 3 Excerpt Text: I propose that the best way to resolve the issue of qualification is to identify the specific skills and knowledge areas required of an assessor, and to develop an appropriate verification ( registration) system that is fair to all current and future environmental assessors / inspectors. There are many professionals, with diverse backgrounds and varied employment histories, who truly qualify for this type of work. A formal qualification, if eventually mandated, should be rated like a job application, e. g. provision for an appropriate evaluation, in lieu of an academic degree and/ or license, which demonstrates the required background necessary for the position.

Response: EPA agrees with the commenter's statement that many professionals with diverse backgrounds and varied employment histories may qualify as environmental professionals for the purposes of overseeing all appropriate inquiries investigations. Given the potential diversity in qualifications, EPA is finalizing general education and experience qualifications for environmental professionals, rather than specifying specific skills. The final rule does not include a registration or verification process.

The final rule requires that an environmental professional sign the written report that documents all results of the all appropriate inquiries investigation. When signing the report, the environmental professional must include two statements with the signature block. One must state that the person signing the report meets the required qualifications of an environmental professional and the other must state that the all appropriate inquiries investigation was completed in compliance with the final regulations ( see § 312.21( d)).

The marketplace and ultimately the courts will determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. Ultimately, the penalty for undertaking an all appropriate inquiries investigation that is not overseen or managed by an individual who qualifies as an environmental professional is disqualifying the owner or grantee from receiving liability protection under the law. This is the ultimate incentive for property owners to be active participants in the process and to seek out the best, most qualified individuals to conduct all appropriate inquiries assessments.

Commenter Organization Name: DWR Consultants Comment Number: 0349 Excerpt Number: 1 366 Other Sections: NEW  2.1.1  Support of the proposed minimum requirements Excerpt Text: I fully support the enhancement for qualificaitons of Environmental Professionals. However, I think some sort of national test should be integrated into the process to ensure the " professionals" are qualified.

Response: The final rule requires that an environmental professional sign the written report that documents all results of the all appropriate inquiries investigation. When signing the report, the environmental professional must include two statements with the signature block. One must state that the person signing the report meets the required qualifications of an environmental professional and the other must state that the all appropriate inquiries investigation was completed in compliance with the final regulations ( see § 312.21( d)).

The marketplace and ultimately the courts will determine whether this criterion is sufficiently satisfied, should the credentials of an environmental professional be challenged or otherwise become an issue in regard to a property owner's CERCLA liability status. Ultimately, the penalty for undertaking an all appropriate inquiries investigation that is not overseen or managed by an individual who qualifies as an environmental professional is disqualifying the owner or grantee from receiving liability protection under the law. This is the ultimate incentive for property owners to be active participants in the process and to seek out the best, most qualified individuals to conduct all appropriate inquiries assessments.

Commenter Organization Name: EAA Comment Number: 0366 Excerpt Number: 2 Excerpt Text: The EAA objects to the minimum requirements set forth herein as they apply to the environmental professional. While we feel a science degree and professional license as a geologist or engineer are valuable, they may or may not always fit the skill set needed to properly complete a Phase I ESA. Experience and skill are gained through proper specialized training time spent actually completing the projects. As most EAA members are from " one man shops", we are confident that these individuals have, many times, been through the entire process of the project in a " hands on" capacity. This would include all the marketing, project development, technical aspects of the project, report writing, and liability issues, to name a few. To offer a proposed solution to this objection, it is the opinion of the EAA membership that, in lieu of requirements based strictly on education and background in non specific science, that training designed to directly address the regulation and requirements be conducted by EPA approved providers. This could be accomplished in much the same way as currently implemented in the EPA asbestos program. The goal of this direct, intense, and well designed training would simply be the allowance of experienced qualified individuals who have been providing this service for years to be able to continue their enterprise without being unfairly and instantly banned from their vocation. 367 Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. Given the variety of property types and uses that an environmental professional may encounter when conducting all appropriate inquiries investigations, EPA has determined that a minimum of three years of relevant full time experience is essential to ensuring a high level of expertise on the part of environmental professionals.

At this time, EPA does not have the resources to establish a national training and certification program for environmental professionals. Training on the essential elements of conducting environmental site assessments may best be achieved by meeting the educational and experience qualifications including in the definition of environmental professional in the final rule. Other training opportunities may be available from private organizations.

Commenter Organization Name: Dean, Frank Comment Number: 0411 Excerpt Number: 2 Excerpt Text: Second, in Section 312.10 the requirement that the Environmental Professional must have a degree in geology, engineering or hard science will put a number of current providers out of business, as many of us do not have these science related degrees. If one looks at 368 the skill sets needed to do a Phase I Environmental Audit, you will find that " hard science" is not needed at this level, but is most certainly required in many of the Phase II testing protocols. As a business owner, I can hire these specialists if and when needed to handle the projects requiring these skill sets.

I would much prefer to see a well designed training program developed to mirror the actual requirements of the Phase I, rather than a non related science or engineering degree as the qualifying criterion for this work. This training program can be modeled after the current EPA asbestos program with accredited course providers delivering the approved training. This way, those with the proper knowledge of the regulations and procedures can do the work and one is not limited by arbitrary education requirements that could deprive one of his lively hood. And, you as a regulator would have more confidence that the people in the field actually know what they are supposed to be doing. I am always a promoter of demonstrated competence over arbitrary requirements.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. Given the variety of property types and uses that an environmental professional may encounter when conducting all appropriate inquiries investigations, EPA has determined that a minimum of three years of relevant full time experience is essential to ensuring a high level of expertise on the part of environmental professionals.

At this time, EPA does not have the resources to establish a national training and 369 certification program for environmental professionals. Training on the essential elements of conducting environmental site assessments may best be achieved by meeting the educational and experience qualifications including in the definition of environmental professional in the final rule. Other training opportunities may be available from private organizations. 370 2.3.9 The Rule Should Specifically Address Subsurface Investigations as a Separate Component of AAI Commenter Organization Name: Ferguson, Jim Comment Number: 0203 Excerpt Number: 2 Excerpt Text: However, the proposed definitions should be revised by adding " geologist" in addition to that of " Environmental Professional" ( EP) and defining a procedure for that specific component of AAI dealing with impact from adjoining properties whereby that component is done only by a " geologist".

EPA's rationale for its broad definition of EP, while an improvement, appears to be based on the recommendations of a Negotiated Rulemaking Committee ( NRC) composed of individuals from a variety of backgrounds but lacking members of the geology profession such as The American Institute of Professional Geologists ( AIPG). EPA claims to have taken a " middle of the road" approach in which the technical quality for Phase I's is ensured while at the same time " grandparenting" those individuals with the required years of experience in the practice. This approach contains a contradiction. Phase I's have not been technically rigorous by tradition. Many have been done only as a formality with very little concern over technical substance by either the buyer or the seller. Thus, a scientist with any common sense has been able to walk the site, access the ASTMrequired databases, conduct interviews and draw conclusions. In fact, those individuals and firms who have not properly addressed the issue of adjoining properties have been retained solely on the basis of price by buyers and sellers ignorant of the importance of adjoining properties. In many instances, serious oversights have occurred based on improper or no consideration of the impact of contamination migrating from adjacent sites to the subject site. This decision requires specialized knowledge and appropriate interpretation of the subsurface conditions and hydrogeologic properties of the area. These hidden properties control the rate and direction of groundwater flow, contaminant attenuation, groundwater vulnerability and the radius of concern. Man made impacts from such as underground utilities and pumping wells must also be properly considered. EPA included recognition of this specialized discipline when it defined " qualified groundwater scientist" and specified his/ her roles in the Subtitle D Municipal Solid Waste Landfill Regulations. AAI is no different.

Many (~ 28) States have boards of registration for geologists with the responsibility to restrict the making of these decisions to qualified, duly registered professional geologists. This is but one component of the many issues in AAI, but it is a very important one and it requires specific knowledge. It appears that EPA considered a rigorous definition of EP but opted not to follow through. It should. This concept, dealing with the interpretation of subsurface conditions, was apparently not discussed in detail by the NRC or in the rationale in the proposed rule. It takes on a greater importance also in that the proposed rule allows more judgment by the EP and is not as prescriptive as ASTM 1527. 371 Adding also to the importance of this issue is the proliferation of automated, Internetbased platforms for creating data summaries and maps of the subject area. These give the erroneous impression of thoroughness to the point of even showing groundwater flow direction and the relative elevation of surrounding sites that have the potential to impact the subject site. These presentations can be very misleading and, if used by an unqualified EP, may lead to serious oversights with significant consequences. The judgment of a qualified " geologist", taking advantage of all available geologic and hydrogeologic information sources, is necessary for this purpose. The AAI process, therefore, should specifically define a separate component in and of itself dealing with interpretations of the subsurface and of determining which, if any, adjoining properties may have contaminated or might contaminate the subject property. The rule should specifically require that individuals licensed as professional geologists or individuals meeting equivalent qualifications such as the Certified Professional Geologist in AIPG make these decisions in a specifically defined component of AAI.

Response: EPA appreciates the commenter's concerns. However, EPA has determined, after reviewing and considering all public comments received in response to the proposed rule, that the activities required to complete a rigorous all appropriate inquiries investigation do not necessarily always require the skills of a professional geologist. In the final rule, EPA adopted a definition of environmental professional that describes the qualifications that EPA determined are necessary for an individual who oversees or manages all appropriate inquiries investigations. Should the assessment of a particular property require the skills of a professional geologist, the environmental professional overseeing the conduct of the site investigation will most likely identify this need and consult with a professional geologist prior to rendering an opinion regarding the environmental conditions of a property. 372 2.3.10 The Agency Should Define the Term " Full Time"

Commenter Organization Name: Lind, Peter Comment Number: 0107 Excerpt Number: 2 Excerpt Text: Which brings me to the definition for " relevant experience". The proposed regulations consistently state the equivalent of " full time" relevant experience. What is meant by " full time". As a licensed architect, or engineer, or geologist, or any other professional the term full time must be defined.

In Illinois, I currently hold ten professional licenses. Seven of the Illinois professional licenses are in the environmental field: asbestos, lead, air monitoring, project management, design professional, etc. Illinois does not currently license individuals as an " Environmental Professional", nor firms as " Environmental Consultants". For the most part, I have held current and continuously all seven licenses since 1988... or a total of 16 years.

My design firm also serves public and institutional clients offering licensed architectural and engineering for facility needs. If my design firm spends 50% of the time on architecture and 50% on AAI related projects, then my total relevant experience may be viewed by the opposing lawyer as only 8 years ( 16 years times 50% relevant experience), even though I held, maintained, and offered the AAI service to clients and holding all relevant state environmental licenses for the entire duration. In Illinois, each environmental license requires relevant EPA refresher training to maintain the annual license.

Response: The use of the phase " full time" within the definition of environmental professional and the definition of relevant experience is meant to require that an individual has accumulated the equivalent of 3, 5, or 10 years of experience. An individual may accumulate such experience over a longer length of time than the 3, 5, or 10 years, as long as the total time of accumulated experience would be the equivalent of 3, 5, or 10 years of full time experience. Even after an individual accumulates the required number of years of full time experience, that individual does not have to conduct environmental site assessments, or all appropriate inquiries investigations, on a full time basis to qualify as an environmental professional.

Commenter Organization Name: Lind, Peter Comment Number: 0107 Excerpt Number: 4 Excerpt Text: 3. Define the term " full time" as an individual holding current an annual state license in an equivalent environmental consultant role. 373 Response: The use of the phase " full time" within the definition of environmental professional and the definition of relevant experience is meant to require that an individual has accumulated the equivalent of 3, 5, or 10 years of experience. An individual may accumulate such experience over a longer length of time than the 3, 5, or 10 years, as long as the total time of accumulated experience would be the equivalent of 3, 5, or 10 years of full time experience. Even after an individual accumulates the required number of years of full time experience, that individual does not have to conduct environmental site assessments, or all appropriate inquiries investigations, on a full time basis to qualify as an environmental professional. 374 SECTION 3: Requirements for Conducting All Appropriate Inquiries Commenter Organization Name: Baker Petrolite Comment Number: 0352 Excerpt Number: 6 Excerpt Text: 4. The proposed performance factors listed in Section 312.20( e) state that the Environmental Professional should obtain information " from its source within reasonable time & cost constraints." BPC requests that the agency provide some clarification in the rule on what it considers " reasonable time and cost constraints."

Response: The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. The performance factors included in the final rule are meant to provide guidelines for the conduct of the inquiry activities, not to draw absolute boundaries around the performance of the data collection activities. It is in the prospective property owner's best interest to conduct the inquiries as thoroughly as possible to ensure his or her ability to comply with all of the statutory criteria for the CERCLA liability protections. The Agency has embraced the performance standard approach to the final rule because it allows flexibility for a variety of circumstances and unique properties. This standard does not lend itself to bright line interpretation. Rather, the Agency is comfortable allowing for judicial interpretation of this standard.

Commenter Organization Name: CONNOR Comment Number: 0398 Excerpt Number: 3 Excerpt Text:  Subpart C  Standards and Practices, Part 312.20 ( All Appropriate Inquiries), Subpart d ( Objectives)

"  threatened releases  "  please define " threatened releases".

"  of hazardous substances "  please define " hazardous substances". Specifically address the inclusion/ exclusion of lead based paint, asbestos containing materials, and radon gas in the definition.

"  on, at, in, or to the subject property"  please clarify/ further define " subject property" to identify if this term includes structures or other improvements, or if it is limited to the land only. 375 Response: The term " threatened release" is included in the definition of " release" in the National Contingency Plan ( NCP) at 40 CFR 300.5. For the purposes of the NCP, " release also means threat of release." Under CERCLA, owners and operators of vessels and facilities may be found liable for both releases ( also defined in Section 101( 22) of CERCLA) of hazardous substances and threatened releases of hazardous substances.

The term " hazardous substance" is defined in CERCLA Section 101( 22).

Although the term " subject property" is not defined, the term is used in the final rule and the preamble to distinguish between the property that is the subject of the all appropriate inquiries investigation, or the property that the prospective landowner who is undertaking the all appropriate inquiries is potentially acquiring and surrounding or adjoining properties. When undertaking an all appropriate inquiries investigation, the prospective purchaser and the environmental professional should investigate all portions of the property where there potentially could be a release or threatened release of a hazardous substance, including structures and improvements.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 17 Excerpt Text: SEQUENCE OF AAI ACTIVITIES 1) FAA believes that it should be left up to the EP to determine the correct sequence to conduct the AAI activities. Although EPA does not require the EP or purchaser to conduct the AAI activities in a specific sequence, EPA does recommend that certain activities take place before others. This recommendation could hold the strength of a requirement if examined in a court of law. Therefore, FAA believes that EPA should remove references to a preferred AAI activity sequence from the preamble to the proposed rule.

Response: The final rule includes no requirements with regard to the sequence in which the all appropriate inquiries activities must be conducted. The few instances in the preamble to the proposed rule where EPA made recommendations regarding the sequence of activities were provided as guidance and because the Agency believes the sequence may be important in many instances. For instance, a visual inspection of the property may be much more effective if it is informed by other aspects of all appropriate inquiries such as interviews with past and present owners and operators. Nothing in the final rule precludes the environmental professional from choosing to conduct the all appropriate inquiries activities in whatever order that he or she determines is best. 376 3.1 Interview Requirements for Non Abandoned Properties Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 5 Excerpt Text: The wording of § 312.23( a) requires the environmental professional to interview the past and present owner, operator, and occupant of the subject property. I believe the intent of § 312.23( a) is to identify potential people to interview not required people to interview. In addition, § 312.23( c) states that one or more of the following people ( manager, past or present owner/ occupant employees) should be interviewed to the extent necessary to achieve the AAI objectives This contradicts the requirements in § 312.23( a).

Response: The intent of § 312.23( a) is to conduct interviews of past and present owners and occupants of a property. The requirement assumes that the persons to be interviewed will be identified prior to the conduct of interviews. The rule does not specify the number of owners and occupants to be interviewed. The environmental professional must perform this function in the manner that best fulfills the objectives and performance factors for the inquiries in ' 312.20( e) and ( f). Environmental professionals may use their professional judgment to determine the specific occupants to be interviewed and the total number of occupants to be interviewed in seeking to comply with the objectives and performance factors for the inquiries. Interviews must be conducted with individuals most likely to be knowledgeable about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property. The Agency sees no contradiction between the requirements of § 312.23( b) and § 312.23( c). They are separate requirements and build on the general requirement of § 312.23( a), to interview past and present owners and occupants, a restating of the statutory criteria. Interviews must be conducted with the current owners and occupants of a property. In addition, to the extent necessary to meet the objectives and performance standards of the rule, interviews must be conducted with past owners and occupants of the property.

Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 5 Excerpt Text: Regarding interviews with occupants or adjoining property owners, performing those interviews can sometimes be against the owner's or purchaser's wishes during a business transaction involving the ESA preparation.... not because of the hiding of environmental issues, but due to sales/ purchases of property which need to be kept confidential. Under criteria which " requires" occupant or neighbor interviews, the preparer may be ask by the client to " not be totally frank" who they are or for what purpose they are collecting data. This creates a position that the EP does not need to be legally placed. The only recourse for the EP is to state it is a requirement on the proposal to the client, and if disallowed by that client, documented in the ESA. 377 Response: In response to issues raised by commenters, we point out that the statutory criteria in CERCLA 101( 35)( B)( iii) include Ainterviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility.@ EPA asserts that it was clearly congressional intent that the all appropriate inquiries investigation include the conduct of interviews with current and past owners and occupants. We also assert that current and past owners and occupants of a property may be excellent sources of information regarding past and on going uses of the property as well as the types of waste management activities that were undertaken at the property. Given that the ASTM E1527 Phase I Environmental Site Assessment Standard, the interim standard for the conduct of all appropriate inquiries, includes requirements for conducting interviews with the current owners and occupants of a property and provides that other owners and occupants are good additional sources of information about property uses and potential contamination at a property, we disagree with commenters who asserted that the proposed and final requirements for conducting interviews will be overly burdensome.

With regard to the requirement to interview owners or occupants of neighboring properties if the subject property is abandoned, EPA believes that the benefit of obtaining information with regard to previous ownerships and uses of the subject property from these individuals outweighs the potential burdens of disclosing that the subject property may be purchased. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 Excerpt Number: 2 Excerpt Text: Language should be included in the section pertaining to conducting interviews with current and past owners, operators, and/ or occupants that such interviews must be conducted only to the extent that past owners, operators, and/ or occupants are available, reasonably accessible, and cooperative.

REASON: In some cases owners, operators, and/ or occupants ( current and past) are not available for interview, or refuse to cooperate.

Response: All of the all appropriate inquiries activities included in the final rule are subject to the objectives 378 and performances standards of ' 312.20( e) and ( f).

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 7 Other Sections: NEW  3.2  Interview requirements for abandoned properties Excerpt Text: We suggest the following text revision: " Interviews should be conducted with an appropriate knowledgeable party."

Response: All of the all appropriate inquiries activities included in the final rule are subject to the objectives and performances standards of ' 312.20( e) and ( f). In addition, the regulatory language in ' 312.23( b) clearly indicates that interviews should be conducted with individuals " likely to use, store, treat, handle or dispose of hazardous substances  or those who have likely done so in the past."

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 8 Excerpt Text:  The proposed standards for conducting interviews of past and present owners and occupants of a property.

 Intertox supports the proposed requirements to interview the current owner and occupant of the subject property as well as other parties with relevant property knowledge. However, the requirement should state that interviews with additional individuals be conducted to the extent that these additional individuals can be reasonably contacted and interview dates established within reasonable timeframes.

Response: All of the all appropriate inquiries activities included in the final rule are subject to the objectives and performances standards of ' 312.20( e) and ( f).

Commenter Organization Name: CONNOR Comment Number: 0398 Excerpt Number: 4 Excerpt Text:  Use of written interview format ( i. e. questionnaire) should be specifically allowed. Interviewee should be required to sign and date upon completion. This provision would allow for completion of interviews where time/ distance/ schedules might normally make it difficult or even impossible to conduct oral interviews. 379 Response: All of the all appropriate inquiries activities included in the final rule are subject to the objectives and performances standards of ' 312.20( e) and ( f). Nothing in the final rule precludes the use of written questionnaires in fulfilling the requirements to interview current and past owners and operators.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 2 Excerpt Text: Proposed Rule § 312.23( a c) requires that the Environmental Professional ( EP) interview past and present owners, operators and occupants of the subject property. However, it does not specifically address the effects of uncooperative current operators/ occupants or prior owners/ operators/ occupants of the subject property. Particularly in the case of long term leases, current owners may not be able to proved prospective purchasers the access required to satisfy the Proposed Rule without the cooperation of the current occupants. It is unclear under the Proposed Rule how a User faced with such circumstances could ever avail itself of the CERCLA liability defenses. One would assume that such lack of cooperation could be simply labeled a " data gap" and that the EP could seek out other means to fill that gap; however, this issue should be clarified in the final Rule.

Response: If the prospective property owner, grantee or environmental professional is unsuccessful in obtaining interviews with current or past owners, the inability to obtain the required information should be noted as a data gap and the significance of the data gap noted in the written report.

Commenter Organization Name: Sierra Club & NET Comment Number: 0419 Excerpt Number: 5 Excerpt Text: In addition, the proposed AAI rule eliminates the requirements that are included in the interim 97 ASTM Standard that establish objective requirements on how the interview process should be conducted, including how interviews should be pursued and documented, making it likely that there will be wide variation in the adequacy of the interview process. Interviews are required by the Brownfields Law and a potentially weak and subjective interview process undermines a key tool in the effort to uncover environmental problems in the environmental inquiry.

Response: The final rule does not prescribe particular questions that must be asked during the interview. The type and content of any questions asked during interviews will depend upon the site specific conditions and circumstances and the extent of the environmental professional= s ( or other individuals under the supervision or responsible charge of the environmental professional) knowledge of the property prior to conducting the interviews. Therefore, the final rule does not 380 include specific questions for the interviews, but requires that the interviews be conducted in a manner that achieves the objectives and performance factors. Persons conducting the interviews of current and past owners and occupants may want to spend some time during the interviews requesting information on the locations of operations or units used to store or manage hazardous substances on the property. It would be inconsistent with the performance standards to require a certain process and content to be used in each interview.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 6 Excerpt Text: § 312.23 Interviews with past and present owners, operators, and occupants ( a)

In § 312.23 Interviews with past and present owners, operators, and occupants ( a), it is unclear exactly who must be interviewed. A suggested modification is:

( a) " Interviews with past and present owners, operators, and occupants of the subject property must be conducted for the purposes of achieving the objectives and performance factors of § § 312.20( d) and ( e)

Rationale:

 The way the language of the Proposed AAI Rule is written, it was unclear if past and present modifies owners, occupants, and operators.

 If past was intended to modify owner, operator, and occupant in this paragraph, then it is inconsistent with paragraph ( c) ( 2) which suggests that the EP should include, to the extent necessary to achieve the objective and performance factors, an interview with one or more of three categories of persons including past owners, occupants, or operators. Whereas, paragraph ( a) stated that the EP must interview these individuals.

 The concept of being required to interview past owners, operators, and occupants is a significant departure from current ASTM standards and will certainly increase the time and cost to complete an assessment.

 At a minimum, the preamble should clarify that it is within the EP's judgment who to interview within these categories and that it may not be necessary to interview a person or persons from each of these categories.

Response: The intent of § 312.23( a) is to conduct interviews of the present owner and occupants of the property and, as necessary, past owners and occupants of the subject property. The rule does not specify the number of owners and occupants to be interviewed. The environmental professional must perform this function in the manner that best fulfills the objectives and performance factors 381 for the inquiries in ' 312.20( e) and ( f). Environmental professionals may use their professional judgment to determine the specific occupants to be interviewed and the total number of occupants to be interviewed in seeking to comply with the objectives and performance factors for the inquiries. Interviews must be conducted with individuals most likely to be knowledgeable about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property. The Agency sees no contradiction between the requirements of § 312.23( b) and § 312.23( c). They are separate requirements and build on the general requirement of § 312.23( a), to interview past and present owners and occupants, a restating of the statutory criteria. Interviews must be conducted with the current owners and occupants of a property. In addition, to the extent necessary to meet the objectives and performance standards of the rule, interviews must be conducted with past owners and occupants of the property.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 8 Excerpt Text: § 312.23 Interviews with past and present owners, operators, and occupants ( preamble comment)

On page 52561 of the Proposed AAI Rule, the preamble points out that data gathered during the interviews may provide valuable information for the on site visual inspection. While this may certainly be the case, the preamble should also clarify that the AAI Rule is not requiring that the interviews must be conducted before the on site inspection.

Response: In the preamble to the proposed rule the Agency merely suggests that the interviews should be conducted before the on site visual inspection to maximize the benefit of such an inspection. The final rule includes no requirements with regard to the sequence in which the all appropriate inquiries activities must be conducted. The few instances in the preamble to the proposed rule where EPA made recommendations regarding the sequence of activities were provided as guidance and because the Agency believes the sequence may be important in many instances. For instance, a visual inspection of the property may be much more effective if it is informed by other aspects of all appropriate inquiries such as interviews with past and present owners and operators. Nothing in the final rule precludes the environmental professional from choosing to conduct the all appropriate inquiries activities in whatever order that he or she determines is best. 382 3.1.1 Interview of the Current Owners, Occupants, Employees, and/ or Managers of the Subject Property Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 13 Other Sections: NEW  3.11.1  De minimis conditions or releases of hazardous substances Excerpt Text: The proposed § 312.23( b) requires that the EP's inquiry include interviews with " major occupants" and " occupants likely to use, store, treat, handle or dispose of hazardous substances." Under this proposed rule, an environmental professional must interview all occupants of a property who are likely to " use, store, treat, handle or dispose hazardous substances  " This could be interpreted to include any residence, as they typically have ammonia, chlorine bleach, various pesticides, etc. This requirement would create additional cost and difficulty in conducting inquiries, while providing only a minimal benefit, if any at all. For example, if a property contains an apartment complex, the EP could be required to interview every tenant in the building. R& W requests that the EPA clarify this requirement to specifically exclude de minimis use, storage, and disposal of hazardous substances that are typically associated with residential dwellings and commercial offices.

Response: The intent of § 312.23 is to conduct interviews of past and present owners and occupants of a property " for the purposes of achieving the objectives and performance factors." The rule does not specify the number of owners and occupants to be interviewed, not does it require that all owners and occupants be interviewed. The environmental professional must perform this function in the manner that best fulfills the objectives and performance factors for the inquiries in ' 312.20( e) and ( f). Environmental professionals may use their professional judgment to determine the specific occupants to be interviewed and the total number of occupants to be interviewed in seeking to comply with the objectives and performance factors for the inquiries. Interviews should include individuals most likely to be knowledgeable about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property.

Commenter Organization Name: Grand Rapids C of C Comment Number: 0345 Excerpt Number: 4 Excerpt Text: The proposed § 312.23( b) requires that the Environmental Professional's inquiry include interviews with " major occupants" and " occupants likely to use, store, treat, handle or dispose of hazardous substances." Under the proposed rule, an environmental professional must interview all occupants of a property. This requirement would create additional cost and difficulty in conducting inquiries while providing only a minimal benefit if any at all. For example, if a 383 property contains an apartment complex, the environment professional would be required to interview every tenant in the building. The Grand Rapids Area Chamber of Commerce recommends that the EPA strike the word " shall" in the second sentence of § 312.23( b) and replace it with the word " may." The Grand Rapids Area Chamber of Commerce believes that limiting the interview requirements to the current owner and operating manager of the property in question would be a reasonable requirement.

Response: Please see response to comment 0320, excerpt 13.

Commenter Organization Name: Geomatrix Consultants Comment Number: 0433 Excerpt Number: 2 Excerpt Text: Commonly, the owner of a property does not want employees or tenants to know that they are interested in selling and will not allow interviews with anyone else. This can limit the numbers of interviews the EP is able to conduct, and could thereby create a data gap. In such a case, the EP must be allowed to acknowledge that limitation in the report without the report's entire credibility called into question. Clarification on the wording that the EP should use in such a case, particularly in the final two statements above the signature, should be included in the preamble.

Response: If the prospective property owner, grantee or environmental professional is unsuccessful in obtaining interviews with current or past owners, the inability to obtain the required information should be noted as a data gap and the significance of the data gap noted in the written report. The specific language included in the written report will depend upon whether the information that could have been collected during the interviews was available from other sources, the exact nature of the missing information, and the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of the property. 384 3.1.2 Interview of the Past Owners, Occupants, Employees, and/ or Managers of the Subject Property Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 8 Excerpt Text: As a practical matter it is usually difficult and frequently impossible to locate former owners and occupants. Any such requirement would greatly increase the cost of preparing a report. Similar to the data gaps issue, the discussion needs to be framed in the context of the principles incorporated in current commercial practice. As currently worded it would seem to offer the flexibility to the EP to decide if there was any need to contact former owners or occupants.

Response: The final rule does not specify the number of owners and occupants to be interviewed. The environmental professional must perform this function in the manner that best fulfills the objectives and performance factors for the inquiries in ' 312.20( e) and ( f). Environmental professionals may use their professional judgment to determine the specific owners and occupants ( both current and past) to be interviewed in seeking to comply with the objectives and performance factors for the inquiries. Interviews are to be conducted with individuals most likely to be knowledgeable about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property. In addition, to the extent necessary to meet the objectives and performance standards of the rule, interviews must be conducted with past owners and occupants of the property.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 6 Excerpt Text: Some qualifying language is necessary for ( c) ( 1) through ( 3) since interviews with former occupants are required. It would be unreasonable to obtain contact information from former occupants of a property and even more unreasonable to expect the former occupants to speak with a consultant. Again, either a qualifier for information provided by municipal offices would replace interview requirements for former occupants or qualifying language about " when available" or " when contact information is reasonable ascertainable" or " when previous site investigations do not provide interviews or adequate historical operations information"

Response: Please see response to comment 0256, excerpt 8.

Commenter Organization Name: ENSR International Comment Number: 0314 385 Excerpt Number: 3 Excerpt Text: § 312.23 ( a) and ( c) require the interview of one or more of the following people: past facility managers; past owners, occupants, or operators; or employees of past owners ( in addition to current use interview targets).

Comment: As in the case of interviews of abutters, ENSR has strong reservations about the practicality of this requirement, particularly when the proposed transaction is confidential, as is often the case.

If you are going to have this requirement, we recommend modifying the language such that these interviews are required only if needed to fill data gaps regarding past site use, and that past site use is reasonably likely to include processes or activities which could have contributed to a release. If this is not the case, much time ( and money) would be needlessly spent attempting to track down and interview prior residential property owners, past farmers, office tenants, etc.

Response: Please see response to comment 0256, excerpt 8.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 12 Excerpt Text: The proposed § 312.23( c), conditional requirement to interview past owners, occupants, employees, and/ or managers of the subject property creates a significant concern if any data gaps exist without such interviews. While interviews with these parties may well provide useful information, conducting such interviews could disclose confidential business information. If, for example, the seller of the property is a publicly traded company, the de facto disclosure of the potential sale is disclosure of inside information and would constitute a securities law violation. The EP cannot be placed into a situation in which he/ she may be in the position of such a violation. R& W requests the EPA to specifically acknowledge such situations. The EP may then use professional judgement to assess if other mechanisms are more appropriate to address the data gap.

Response: Please see response to comment 0256, excerpt 8. The commenter appears to be overstating the consequences of disclosing the mere fact that a property will potentially be purchased. Interviews with past owners and occupants must only be conducted as necessary to meet the objectives and performance standards of the final rule. If information that could be gained from past owners and occupants can be obtained from other sources, then interviews with these parties need not be conducted. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed 386 continuing obligations. It is in the prospective property owner's best interest to conduct the inquiries as thoroughly as possible to ensure his or her ability to comply with all of the statutory criteria for the CERCLA liability protections.

Commenter Organization Name: Baker Petrolite Comment Number: 0352 Excerpt Number: 5 Excerpt Text: 3. Some properties may have had multiple leasing tenants prior to the performance of an All Appropriate Inquiry. BPC respectfully requests that EPA clarify in the rule the extent to which environmental professionals must pursue former occupants of a property for the purpose of obtaining historical information and that EPA specify the legal standard of due care and case law that may be relied upon for interpreting achievement of the performance standard.

Response: Please see response to comment 0256, excerpt 8.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 14 Excerpt Text:  Interviews with Past Owners, Operators, and Occupants Proposed § 312.23 provides that the " inquiry of the environmental professional must include interviewing the current owner and occupant of the subject property, and further that "[ t] he inquiry of the environmental professional should include, to the extent necessary to achieve the objectives and performance factors. . . interviewing one or more of the following [ including past owners, occupants, or operators]." The new rule, then, makes a distinction between interviewing current owners, which is mandatory, and interviewing past owners, which is discretionary within the schema of the new rule. The environmental professional might consult sources other than past owners to obtain information that would be obtained if he interviewed them. Before moving on to show that ASTM E1527 also provides for interviewing past owners in a similar discretionary way within its schema, we would like to note that obtaining useful information through interviewing past owners is likely to prove a chimerical exercise. What possible incentive would a past owner have for disclosing that hazardous waste was handled, stored or disposed of while she owned the property? It is the rare individual indeed who volunteers to be a CERCLA responsible party. Current owners, on the other hand, presumably are interested in answering because they want to sell the property ( at least in many cases) and have an interest in being truthful because withholding information that could affect the value of the property in the context of a sale would expose them to contract and tort liability. However, we, like the committee, recognize that Congress applied the adjective " past" to the noun " owner" in reciting the criteria for All Appropriate Inquiry. 387 ASTM E1527 00 § 3.3.25 defines " other historical sources" to include " any source or sources  that are credible to a reasonable person and that identify past uses of the property." " Any source" no doubt includes interviewing past owners. The purpose of consulting historical sources is to identify " recognized environmental conditions," ASTM E1527 00 § 7.3.1, and the environmental professional may consult " other historical sources" to satisfy this requirement. ASTM E1527 00 § <IP_ADDRESS>. Other sources also include " personal knowledge" of individuals. ASTM E1527 00 § 3.3.25. ASTM E1527 therefore includes interviewing past owners as discretionary within its schema and complies with the statutory criteria to " include" interviews with " past and present owners." 42 U. S. C. § 9601 ( 35)( B)( iii)( II).

We see no bar here to adopting ASTM E1527 00 verbatim. EPA's mandate was to " clarify the obligations" of prospective purchasers Since Congress explicitly used the word " past" in connection with owner, EPA could, if it desires extra comfort, add the clarifying words " past or present" before the words " property owner" in the last sentence of ASTM E1527 § 3.3.25.

Response: EPA maintains that although the ASTM E1527 2000 standard states that " other sources" of information may include " personal knowledge" of individuals, the ASTM standard does not require or advise environmental professionals to interview past owners or occupants of the subject property. Interviews with past owners and occupants must only be conducted as necessary to meet the objectives and performance standards of the final rule. If information that could be gained from past owners and occupants can be obtained from other sources, then interviews with these parties need not be conducted. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. It is in the prospective property owner's best interest to conduct the inquiries as thoroughly as possible to ensure his or her ability to comply with all of the statutory criteria for the CERCLA liability protections.

Commenter Organization Name: CONNOR Comment Number: 0398 Excerpt Number: 5 Excerpt Text:  The difficulty of contacting past facility managers, owners, occupants, operators and employees should be addressed. Entities seeking" Innocent Landowner" status should be responsible for provision of these contacts to the Environmental Professional.

Response: Interviews with past owners and occupants must only be conducted as necessary to meet the objectives and performance standards of the final rule. If information that could be gained from past owners and occupants can be obtained from other sources, then interviews with these parties need not be conducted. Environmental professionals may request that the prospective landowner or grantee assist with identifying and locating past owners and occupants. The primary objective 388 of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. It is in the prospective property owner's best interest to conduct the inquiries as thoroughly as possible to ensure his or her ability to comply with all of the statutory criteria for the CERCLA liability protections.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 4 Other Sections: NEW  3.6.3  Visual inspection of adjoining properties Excerpt Text: The Proposed Rule notably increases the content requirements under Phase I ESAs. An environmental professional ( EP) must interview past owners, operators and occupants of the property, not just the current owner, and if the property is abandoned, the EP must interview owners or occupants of adjacent properties. What if the adjacent property is abandoned? How far must the EP go to track down past owners, operators and occupants? How far back in a line of owners, operators and occupants must the EP go?

Response: In response to issues raised by commenters, we point out that the statutory criteria in CERCLA 101( 35)( B)( iii) include Ainterviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility.@ EPA asserts that it was clearly congressional intent that the all appropriate inquiries investigation include the conduct of interviews with current and past owners and occupants. We also assert that current and past owners and occupants of a property may be excellent sources of information regarding past and on going uses of the property as well as the types of waste management activities that were undertaken at the property. Given that the ASTM E1527 Phase I Environmental Site Assessment Standard, the interim standard for the conduct of all appropriate inquiries, includes requirements for conducting interviews with the current owners and occupants of a property and provides that other owners and occupants are good additional sources of information about property uses and potential contamination at a property, we disagree with commenters who asserted that the proposed and final requirements for conducting interviews will be overly burdensome.

With regard to the requirement to interview owners or occupants of neighboring properties if the subject property is abandoned, EPA believes that the benefit of obtaining information with regard to previous ownerships and uses of the subject property from these individuals outweighs the potential burdens of disclosing that the subject property may be purchased. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining 389 as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information. If all neighboring properties also are abandoned, then it will be impossible to conduct the interviews. If information necessary to meet the objectives and performance standards cannot be obtained, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the data gaps to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 21 Excerpt Text: WHAT COMPELS COOPERATION?

1) Assuming that the EP can identify and contact the past owners and operators and past facility managers of a subject property, what would compel them to discuss potential past environmental regulations violations that may have resulted from their past actions?

Response: Interviews must be conducted with the current owners and occupants of a property. In addition, to the extent necessary to meet the objectives and performance standards of the rule, interviews must be conducted with past owners and occupants of the property. EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance standards can not be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the data gaps to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted. 390 3.2 Interview Requirements for Abandoned Properties Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 6 Excerpt Text: 6 Steve Myers What Compels Cooperation? 312.20( b)( 2)( i) and 312.23( a), ( c)( 2)( 3) and 52560 61 Assuming that past owners or operators of a subject property can be identified and contacted, what is there that will compel them to discuss potential past environmental regulation violations which could have been the result of those activities discussed in 312.20 ( d)( 1)( i iv) with an Environmental Professional?

Response: See response to comment 0334, excerpt 21.

Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 11 Excerpt Text: 11 Steve Myers What Compels Cooperation? 312.23( c)( 1) Assuming that past facility managers of a subject property can be identified and contacted, what is there that would compel them to discuss potential past environmental regulation violations which could have been the result of those activities discussed in 312.20( d)( 1)( i iv) with an Environmental Professional?

Response: See response to comment 0334, excerpt 21.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 7 Other Sections: NEW  3.1  Interview requirements for non abandoned properties Excerpt Text: We suggest the following text revision: " Interviews should be conducted with an appropriate knowledgeable party."

Response: The final rule at 312.23 ( b) requires that interviews be conducted with individuals most likely to be knowledgeable about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property. 391 Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 15 Excerpt Text: 312.10( b)  Abandoned property: A better indicator that a property is abandoned would seem to be if taxes have been paid. This information is easy to obtain and is commonly included in title reports ( not chains of title).

Response: The final rule defines an abandoned property as a Aproperty that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property.@ EPA contends that a rightful and legitimate owner of a property may be delinquent in paying property taxes.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 12 Excerpt Text: We also believe that the proposed definition of " abandoned property" in proposed section 312.10( b) will result in unnecessary confusion due to the reference to " general disrepair or lack of activity", two phenomena that are not necessarily indicative of an abandoned property. What is critical to identifying a parcel of property as abandoned is the absence of an identifiable owner. It is not uncommon to find property in a state of general disrepair or lack of activity due to an identified owner's inability or disinterest in maintaining the property. We would not describe such a property as abandoned. We suggest that the definition of " abandoned property" be modified to read:

Abandoned property means: property that can be presumed to be deserted based on the inability to identify the property owner, or an intent to relinquish possession or control can be inferred from the denial of ownership thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property.

Response: Please see response to comment 0347, excerpt 15. " The general lack of disrepair or lack of activity" must be indicative of an intent to relinquish possession or control as viewed by a reasonable person.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 6 Excerpt Text: Proposed requirements to interview owners or occupants of neighboring properties in the case of 392 abandoned properties.

a) Page # 52579 b) View: This proposal is supported. Too often no persons are available to interview and provide information on the Subject. Neighbors often have a plethora of information about the Subject Property. Specifically, neighbors will historically observe exterior operations such as waste storage, disposal, dumping, and/ or remediation projects.

c) Assumptions: The interview process is critical to gathering information about the Subject Property that would not be available from Regulatory Files and/ or onsite inspection.

d) Burden: The EP would need to expand interview inquiries to surrounding properties. However the additional time involved is immaterial.

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

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 1 Excerpt Text: In § 312.10 Definitions, the Abandoned property definition needs clarification. The definition should be revised to reflect the intent of the requirement to interview one or more neighboring or nearby property owners when the property is abandoned. A suggested modification is:

" property that can be presumed to be deserted based on the inability to identify the property owner, or an intent to relinquish possession or control can be inferred from the denial of ownership general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property."

Rationale:

 Properties that appear to be in general disrepair or have a lack of activity are not strong indicators that the property is abandoned. The way the definition is worded literally requires the EP to interview neighbors at every site that is in a state of general disrepair or lack of activity. Rather, the definition of abandoned property should include the concept of the missing or truant property owner either through the inability to identify the property owner or through a denial of ownership.

Response: Please see response to comment 0367, excerpt 12. 393 Commenter Organization Name: Geomatrix Consultants Comment Number: 0433 Excerpt Number: 3 Excerpt Text: We also believe that the time ( and costs) for interviewing under an AAI compliant ESA will increase due to challenges with tracking down neighboring property owners.