Response: The final rule requires that certain aspects of the all appropriate inquiries investigation be updated if the investigation was completed more than 180 days prior to the date of acquisition of the property ( or the date on which the prospective landowner takes title to the property). EPA chose this period of time to ensure that an all appropriate inquiries investigation accurately reflects the current environmental conditions at a property. The Agency also believes that requiring the investigation to be updated within that timeframe increases the potential that information collected about the conditions of a property will be accurate, as well as increases the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report will be based on current and relevant information.

EPA is unsure what the commenter is suggesting exactly. If the commenter is providing suggestions for how certain aspects of the investigation may be updated, the Agency agrees that the procedures listed by the commenter are sufficient. If the commenter is suggesting that only the interviews, government records searches, and documentation of on going releases portions of the all appropriate inquiries investigation should be updated, EPA disagrees with the commenter. EPA believes that the following types of information must be updated within 180 days of the date of acquisition to ensure that the investigation is current and accurate:   interviews with past and present owners, operators, and occupants ( § 312.23);   searches for recorded environmental cleanup liens ( § 312.25);   reviews of federal, tribal, state, and local government records ( § 312.26);   visual inspections of the facility and of adjoining properties ( § 312.27); and   the declaration by the environmental professional ( § 312.21( d)).

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 3 Excerpt Text:  The proposal to establish the date on which title is transferred on a property as the date on which the property is acquired.

 Intertox agrees that property acquisition should be considered as the date on which a title document is recorded at the county assessor's office ( or similar agency as may differ from state to state). We believe there is general consensus among environmental professionals that property acquisition begins when a title document is recorded as previously stated. 639 Response: The Agency continues to believe that the event that most closely reflects the Congressional intent of the date on which the defendant acquired the property is the date on which a purchaser received title to the property. EPA notes that this is not the same as the date of recordation. They are two very distinct occurrences.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 12 Excerpt Text: Age of Report:

a) Page # 52577 b) View: A standard on how/ when a Phase I is considered current is strongly supported. The Phase I AAI Standard is proposed to increase the quality and value of a Phase I report. To preserve quality of the AAI process the Phase I reports should be current. Reports being considered valid and current for up to 180 days is supported. With certain aspects of the reports being updated, reports can be considered current up to 365 days. c) Assumptions: Site conditions change and a re inspection of the property may show materially different conditions then the original report detailed. Specifically if the property is a suspect operation, onsite operations and property conditions can change rapidly. d) Burden: The purchasers of real estate will be required to obtain current reports, and not rely on existing reports from 2 or 3 years ago. Costs of real estate transactions will increase, as new reports will be required on a greater frequency.

Response: To increase the potential that the information collected for the all appropriate inquiries accurately reflects the proposed objectives and performance factors, as well as to increase the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report are based on current and relevant information, the Agency is retaining the proposed provision that all appropriate inquiries be conducted within one year prior to the date on which the property is acquired. Such inquiries may include information collected for previous all appropriate inquiries that were conducted or updated within one year prior to the acquisition date of the property. In addition, the final rule retains the requirement that several of the components of the inquiries be updated within 180 days prior to the date on which the property is acquired ( i. e., the date the landowner obtains title to the property).

Commenter Organization Name: Greenwood, Harriet Comment Number: PM 0127 0008 Excerpt Number: 6 640 Excerpt Text: Additionally, I would like to commend the EPA and the negotiated rule making committee, for clearly allowing the use of previous assessments, provided they're in compliance with existing standards or practice, and updated within one year.

This will do a great deal to keep the commercial real estate market place operating efficiently and avoid what might be high additional costs if duplicate efforts were required by this rule.

Response: EPA thanks the commenter for the stated support of the provision. 641 3.13.1 Use of Information Collected for Previous Inquiries Completed for the Same Property Commenter Organization Name: Pike, Kenneth R Comment Number: 0116 Excerpt Number: 1 Excerpt Text: Transfer of AAI to Another Party ( Preamble pg. 52557) The proposed rule allows for a " second party" acquiring a property to use the results of inquiries   conducted by a " first party". The proposed rule would also require that the " second party" update the inquiries and the report to include any relevant specialized knowledge held by the current purchaser and the environmental professional.

Comment: The Environmental Consultant would potentially be exposed to undue liability if the second party did not obtain the Consultant's permission ( or provide remuneration) for reliance on the AAI Report. Also, if an adverse environmental condition not recognized in the AAI Report was identified by the second party subsequent to purchase, the Consultant could be held liable to both the first party and the second party for the adverse environmental condition because they both relied on the contents of the AAI Report. If the second party, for whatever reason, litigated against the first party ( as a previous owner) because of the adverse environmental condition, and both parties relied on the Consultant's AAI Report, the Consultant would have a conflict as to which party to represent in the litigation. This could potentially leave both parties/ purchasers without representation in litigation because the Consultant could not represent both sides in such an argument.

Recommendation: Because adverse environmental conditions can escape detection in even the most thorough and comprehensive property assessments and a purchaser's only recourse is often litigation, it is recommended that second party purchasers not be allowed to rely on the contents of a Consultant's AAI Report performed for a previous purchaser. Even if the Consultant can prove that the adverse environmental condition could not have been detected during the AAI and should therefore not be held liable for not detecting it, the legal costs to defend against such claims could be damaging. The second party/ purchaser should afford to conduct its own AAI using a Consultant of its choosing. The second Consultant would have information from the first Consultant's AAI Report to review, disseminate and incorporate into their own AAI Report on which the second party may fully rely upon without exceptions.

Response: The final rule allows for the use of previously conducted all appropriate inquiries, as long as the previously conducted inquiries were conducted in compliance with the statute and the all appropriate inquiries for the current purchase are updated to include a summary of any relevant changes to the conditions of the property and any specialized knowledge of the prospective landowner. EPA continues to recognize that it is not sufficient to wholly adopt previously conducted all appropriate inquiries for the same property without any 642 review. Certain aspects of the all appropriate inquiries investigation are specific to the current prospective landowner and the current purchase transaction. Therefore, the final rule requires that each all appropriate inquiries investigation include current information related to:   any relevant specialized knowledge held by the current prospective landowner and the environmental professional responsible for overseeing and signing the all appropriate inquiries report ( i. e., requirements of § 312.28); and   the relationship of the current purchase price to the value of the property, if the property were not contaminated ( i. e., requirements of § 312.29)

With regard to the commenter's concern regarding liability issues associated with using the results of an all appropriate inquiries investigation performed by another party, these issues are beyond the scope of today's rulemaking and are best addressed by the parties involved. Whenever using results provided by another party, an environmental professional should evaluate the accuracy and usefulness of the information prior to using it or incorporating such information into a current investigation.

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 10 Excerpt Text: The proposed provisions for using previously conducted all appropriate inquiries ( page 52556 52557).

It is NSPE's recommendation that EPA continue to require the previously conducted title searches, as well as all other data relative to the all appropriate inquiries requirement, be updated on a regular basis. EPA should also emphasize the requirement that the data be collected within 180 days prior to the acquisition of the property. Many prospective purchasers, in an effort to save time and cost, obtain previously performed data and reports, and force environmental professionals to sign " reliance letters," thereby allowing these third parties to rely upon the data. This data may be more than 180 days old and prepared for a different client. The liability implications on the environmental professional are extremely important and this part of the proposed rule will go far in protecting the environmental professional from third party liability.

Response: Please see response to comment number 0116, excerpt 1.

Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 4 Excerpt Text: 4 Steve Myers Previous Phase I's 312.20( b)( 1) Is the intent of this paragraph to invalidate all previous Phase I 643 work done previously to this proposed rule becoming official if the proposed rule does become official? That is how it reads.

Response: It is not the Agency's intent to disallow the use of information contained in previous inquiries, if the environmental professional and the prospective landowner find the previously collected information to be accurate and valid. However, EPA continues to believe that information collected as part of a prior all appropriate inquiries investigation for the same property should be updated to reflect current environmental conditions at the property and to include any specific information or specialized knowledge held by the prospective landowner. The regulatory language in today's final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation. This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule.

Commenter Organization Name: Myers, Steve Comment Number: 0242 Excerpt Number: 5 Excerpt Text: 5 Steve Myers Previous Phase I's 312.20( b)( 2) Will soil or groundwater sampling data performed for previous ' All Appropriate Inquiries' reports also be invalid after one year? For example, if previous tests have shown conclusively that the soil is well above the regulatory limit for lead, an element that doesn't leach out very fast, what would be the point of re sampling the soil 13 months later?

Response: Since sampling and analysis is not required when conducting all appropriate inquiries, the use of the results of previous sampling and analysis events may be used by the environmental professional without being updated to comply with the provisions of the final rule. However, the environmental professional should use his or her professional judgment in determining the adequacy of such information. 644 It is important for the all appropriate inquiries investigation to be completed within one year prior to the date the purchaser acquires the property. We point out that the final regulation, as did the proposed regulation, allows for information from an older investigation to be used in a current investigation, however, if the all appropriate inquiries investigation was completed more than a year prior to the property acquisition date, all parts of the investigation must be reviewed and updated. We believe that a year is sufficient time for conditions at a property to change. In particular, in cases where there is a release or threatened release at a property, significant changes to the environmental conditions of a property could change during the course of a year. In addition, dependent upon the ongoing uses and ownership of a property during the course of a one year time period, overall conditions at a property could change and new evidence of a release or threatened release could appear over that length of time. Therefore, the final rule requires that all appropriate inquiries completed for a particular property more than one year prior to the date of acquisition of that property, must be updated in their entirety. The final rule does allow for the use of information contained in previous inquiries, even when the inquiries were completed more than a year prior to the property acquisition date, as long as all information collected and all aspects of investigation be updated to included any changes that may have occurred during the interim.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 3 Excerpt Text: In theory there is no problem with the rule as drafted. In practice however several issues need to be recognized. Most practicing EP's are reluctant to rely on information previously collected by another practitioner. Part of this is liability related and part of it is the simple fact that the quality of reports varies widely. Most EP's would certainly review the previous work and use it to the extent possible.

Response: Please see response to comment number 0116, excerpt 1.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 5 Excerpt Text: The subsequent use of a report by a third party not involved in the initial transaction would usually require a reliance letter from the EP. That is an important concept to maintain. The report, especially one involving a Brownfield site, may have risk tolerance issues associated with its preparation that are not directly transferable for one party to another. While this shouldn't prohibit the subsequent use of a report, such use should not be allowed without considered thought and discussion about the efficacy of the report to 645 the new player.

Response: Please see response to comment number 0116, excerpt 1.

Commenter Organization Name: Hahn and Associates Comment Number: 0296 Excerpt Number: 1 Excerpt Text: I support Mr. Kenneth Pike's edocket comment ( SFUND 2004 0001 0116) with regard of transfer of AAI ( report) to another party. I am in agreement with Mr. Pike's recommendation as stated, including that subsequent purchasers ( e. g. second party purchasers) not be allowed to rely on the contents of an AAI report prepared for another party (" first party").

Response: Please see response to comment number 0116, excerpt 1.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 10 Excerpt Text: The Band agrees with the proposed permitted use of previously conducted all appropriate inquiries according to the proposed provisions. Again, such a practice allows for the maximized use of tribal resources and is cost efficient.

Response: The regulatory language in today's final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation. This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule. 646 Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 6 Excerpt Text: Use of Prior Reports. The proposed approach seems very adequate but could be clarified by specifically allowing the re use of information older than one year that will not have changed. Even if a report does not completely qualify as an AAI document, current industry practice recognizes that parts of a prior report may meet AAI requirements adequately and be used, while other sections of the report may not meet AAI requirements and should not be used, or not used without further investigation. The proposed rule does recognize this better than is explained in the preamble.

Response: The regulatory language in today's final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation. This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 3 Excerpt Text: A. Limited Shelf Life of Previously Collected Information. Proposed section 312.20( b) limits the circumstances under which previously collected information maybe used in a subsequent AAI. As written, this section is quite confusing and can be simplified without undermining the goal of a site assessment contemporaneous with the property acquisition.

First, EPA proposes that the earlier information must have been collected as part of an AAI conducted in compliance with this regulation as well as various CERCLA provisions. Proposed § 312.20( b)( l). Does this mean that information obtained in the course of a prior site assessment conducted in accordance with ASTM 1527 97 or  00 as the authorized interim standards cannot be used, subject to the updating provisions later 647 in the section? If that is EPA's intent, that is unnecessarily wasteful. Second, proposed section 312.20( b)( 2) requires that the information have been updated within one year of the purchase of the property and proposed section 312.20( b)( 3) goes even further by requiring that five important components of the inquiries be updated within 180 days of the property purchase. See 69 Fed. Reg. at 52556. There is no danger that AAI will be based on stale information. EPA needs to simplify its discussion of this issue and, particularly, clarify that relevant and reliable information obtained in the course of a prior site assessment can be used to satisfy AAI, subject to the updating provisions in the rule. It is not unusual for property transactions to take a long time to closing, and imposing unrealistic constraints on the shelf life of previously collected information is unwarranted.

Response: EPA agrees that the regulatory language in the proposed rule was a bit confusing. EPA made some clarifications to the final rule. The regulatory language in the final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation ( i. e., 40 CFR 312). This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 5 Excerpt Text: Proposed Rule § 312.20( b)( 2) clarifies that AAI must be conducted or updated within one year prior to taking title to the subject property, and Proposed Rule § 312.20( b)( 3) further clarifies that certain elements of AAI ? i. e., interviews with property owners, operators and occupants, searches for recorded environmental liens, reviews of government records, visual inspections of the property and the EP's declaration be conducted or updated within 180 days prior to taking title. This addresses a grey area in the ASTM standard, which merely specified that the Phase I reports were presumptively valid for 180 days, after which time it was up to the User in its " reasonable judgment" to determine whether conditions changed at the subject property to render the Phase I 648 invalid. This clear direction will allow the User to know with a higher degree of confidence whether its AAI is valid or " stale".

Nonetheless, it should be recognized that the proposed AAI Rule requires additional updates that are unnecessary under the ASTM standard at properties where the conditions remain unchanged and that such unnecessary updates will increase the costs of AAI.

Response: The cost analysis conducted for the final rule does not account for the cost savings that some prospective property owners may enjoy because they have previously conducted all appropriate inquiries reports that provided some of the necessary historical information. The cost analysis assumes that all prospective property owners must undertake the all appropriate inquiries investigation without the benefit of previously conducted inquiries. Therefore, the cost estimate provided with the proposed rule represents an over estimate of potential costs, rather than an underestimate, as the commenter suggests.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 3 Excerpt Text: § 312.20 All Appropriate Inquires, ( b) ( 1)

In § 312.20 All Appropriate Inquires, ( b) ( 1) should be changed to read:

 b) All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on the behalf of, persons identified under § 312.1( b) and who are responsible for the inquiries for the subject property, provided:

( 1) Such information was collected during the conduct of all appropriate inquiries in full or partial compliance with the requirements of this part ( 40 CFR Part 312) and with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii);

Rationale:

 Any information obtained during previous environmental site assessments should be made available to persons in § 312.1( b) regardless of whether the information was collected in full or partial compliance with the requirements of this part. For example, if a previous environmental assessment was conducted in partial compliance with ASTM 1527 or AAI because local government records were not reviewed, then it should not render all other information obtained during the previous environmental assessment ( such as Sanborns, interviews, visual inspections, etc.) as unavailable for reuse.

Response: It is appropriate to use the information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory 649 provisions for all appropriate inquiries and is updated as required in § 312.20. In all cases, the environmental professional should review the previously obtained or collected information and assess its accuracy and applicability to the current investigation. 650 3.13.2 AAIs Conducted by Third Parties Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 2 Other Sections: NEW  6.6  Impact of the rule on the cost of liability insurance Excerpt Text: Allowing ( by regs) the transfer or reliance of the original ESA to any person besides the one it was originally prepared for creates an undue liability which will likely be reflected in some companies by increased prices and/ or by the company ceasing to provide this ESA service because of the excessive liability versus revenue the reports generate. Most companies want to reduce liability, but by allowing anyone to use the original ESA.... you increase that liability exposure. Perhaps a re write of the proposed rule that would state it is " allowable under the judgment of the EP to provide reliance" would be more acceptable.

Response: Please see response to comment number 0116, excerpt 1.

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 11 Excerpt Text: The proposed requirements for using all appropriate inquiries conducted by third parties ( page 52557 52558).

The all appropriate inquiries issue, as it pertains to third parties, seems somewhat inconsistent with the " previously conducted all appropriate inquiries" issue discussed above. Under the proposed rule the information and data developed by third parties may be used so long as it was updated or collected within one year of the purchaser acquiring the property. In the requirements for " previously conducted title searches," there is a 180 day timeframe. This inconsistency could lead to confusion since it is possible for previously conducted inquiries to be performed by a third party. Under that circumstance, it seems unclear as to whether the 180 day or one year timeframe would apply. In an effort to minimize this potential confusion, we suggest that the 180 day timeframe be applied to both circumstances. We also suggest that the proposed rule be amended to prohibit post contractual reliance letters ( i. e., any attempt by a party to require an environmental professional to provide a reliance letter shall be void and unenforceable as a matter of law).

Response: It is appropriate to use the information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory 651 provisions for all appropriate inquiries and is updated as required in § 312.20. In all cases, the environmental professional should review the previously obtained or collected information and assess its accuracy and applicability to the current investigation.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 11 Other Sections: NEW  6.6  Impact of the rule on the cost of liability insurance Excerpt Text: The proposed rule § 312.20 ( c) states that all appropriate inquiries conducted by or for other persons can be used ( which could be interpreted as relied on) in a report for a third party. The preamble ( page 52557, first paragraph under ( 4)) also states that all appropriate inquiries can be conducted by one party and transferred to another.

Comment: While likely not the intent, this language implies that numerous parties can rely on a report prepared by a consultant for their client, without any need to obtain a release from the consultant. This would set an unfortunate precedent in the assessment industry, and increase the overall business risk to consultants as a whole. ( Thereby reducing their willingness to perform this type of work or greatly increasing the price of an assessment to cover the added risk)

Response: Please see response to comment number 0116, excerpt 1. Ownership rights to previous reports and whether or not previous all appropriate inquiries reports can legally be transferred between parties is beyond the scope of this rulemaking.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 7 Excerpt Text: Use of AAIs conducted by third parties. The proposed approach seems very adequate.

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

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 4 Excerpt Text:  The proposed requirements for using all appropriate inquiries conducted by third parties.

 Intertox supports the proposal to allow all appropriate inquires conducted by one party 652 to be transferred to another party, however, we believe that an all appropriate inquiry should be valid for one year only, thereafter; the environmental professional should be required to update all aspects of the inquiry, including historical resources review, government database and records review, and site visit.

Response: The final rule requires that all information in a previously conducted all appropriate inquiries report be updated if the report, or previous investigation, was completed more than a year prior to the date of acquisition of the property. 653 3.13.3 The Agency Should Clarify whether the Results of the Reports that Have Been Prepared in Accordance with ASTM E1527 2000 Can Be Included in Updated AAI Reports Commenter Organization Name: Prevatte, Chad M Comment Number: 0093 Excerpt Number: 4 Excerpt Text: In § 312.20.4( c) 1 it states. " All appropriate inquiries can include the results of report( s) specified in § 312.21 ( c), that have been prepared by or for other persons, provided that the reports meet the objectives and performance factors of this regulation, as specified in paragraphs ( d) and ( e) of this section. Can the results of reports that have been prepared in accordance only with ASTM E 1527 00 be included in updated AAI reports?

Response: The regulatory language in the proposed rule was a bit confusing. EPA made some clarifications to the final rule. The regulatory language in the final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation ( i. e., 40 CFR 312). This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule. 654 3.13.4 Shelf Life Should Be Extended beyond 180 Days/ One Year Commenter Organization Name: Zutz Comment Number: 0104 Excerpt Number: 4 Excerpt Text: The 180 day shelf life of a report is too short.

We believe the current industry standard of a 180 days shelf life ( ASTM 1527 00) is also too short. Complicated real estate transactions can take extended periods of time, especially when there is an actual or perceived risk of environmental liability as would be the case with most brownfields sites. For example, it took about a decade to complete the real estate transaction for a brownfields site in my city. In that the activities that may have caused environmental liabilities are usually related to historic land use ( not current land use), the most recent time period may not be as much of a concern as earlier periods.

We suggest a shelf life of at least one to two years.

Response: Although commenters may be correct in their assertions that some property transactions may take more than a year to close, EPA continues to believe that it is important for the all appropriate inquiries investigation to be completed within one year prior to the date the purchaser acquires the property. We point out that the final regulation, as did the proposed regulation, allows for information from an older investigation to be used in a current investigation, however, if the all appropriate inquiries investigation was completed more than a year prior to the property acquisition date, all parts of the investigation must be reviewed and updated. We believe that a year is sufficient time for conditions at a property to change. In particular, in cases where there is a release or threatened release at a property, significant changes to the environmental conditions of a property could change during the course of a year. In addition, dependent upon the ongoing uses and ownership of a property during the course of a one year time period, overall conditions at a property could change and new evidence of a release or threatened release could appear over that length of time. Therefore, the final rule requires that all appropriate inquiries completed for a particular property more than one year prior to the date of acquisition of that property, must be updated in their entirety. The final rule does allow for the use of information contained in previous inquiries, even when the inquiries where completed more than a year prior to the property acquisition date, as long as all information collected and all aspects of investigation be updated to include any changes that may have occurred during the interim.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 4 Excerpt Text: 655 The rule does not allow using reports over a year old and require updates if over 6 months. Large commercial purchases of the type contemplated to include complicated Brownfield issues rarely are completed in six months. The draft rule would seem to impose a need for constant update as the transaction progresses. I am not sure that is necessary or productive so long as the same parties are involved in the transaction. I am recommending that you remove the strict one year limitation and make provisions for updates as appropriate. The specified level of effort for the six month update could easily be applied to any update six months or six years.

Response: Please see response to comment number 0104, excerpt 4.

Commenter Organization Name: Kane Environmental Comment Number: 0317 Excerpt Number: 6 Excerpt Text: The Phase I ESA should be available for updating after one year if the Phase I was completed for the same property and the same client. For example, client A purchases a commercial property and 18 months later, client A wants to refinance the same property. It is sufficient that the Phase I be updated for such purposes Response: The commenter is correct. EPA points out that the final regulation, as did the proposed regulation, allows for information from an older investigation to be used in a current investigation, however, if the all appropriate inquiries investigation was completed more than a year prior to the property acquisition date, all parts of the investigation must be reviewed and updated. We believe that a year is sufficient time for conditions at a property to change. In particular, in cases where there is a release or threatened release at a property, significant changes to the environmental conditions of a property could change during the course of a year. In addition, dependent upon the ongoing uses and ownership of a property during the course of a one year time period, overall conditions at a property could change and new evidence of a release or threatened release could appear over that length of time. Therefore, the final rule requires that all appropriate inquiries completed for a particular property more than one year prior to the date of acquisition of that property, must be updated in their entirety. The final rule does allow for the use of information contained in previous inquiries, even when the inquiries where completed more than a year prior to the property acquisition date, as long as all information collected and all aspects of investigation be updated to include any changes that may have occurred during the interim.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 15 Excerpt Text: 656 1) Please explain the difference between the 180 days and the one year data expiration dates more clearly.

2) Although FAA believes that it may be appropriate to update some AAI information if it was collected more than 180 days prior to acquisition of the property, the requirement to update certain information may be excessively burdensome and costly in some instances. The information FAA believes the EP should not have to update if older than 180 days includes the following:

 Interviews with previous owners/ operators: Information collected from previous owners or operators, or from historical sources, will not change over time and EPA should not require the EP to update this information. The only exception to this would be if any additional previous owners or operators were identified since the initial AAI information collection. FAA believes that the requirement to re interview previous owners and operators and historical source information is excessive.

 Database searches: Some of the information may not be updated by the data source within 180 days. For example, some federal, tribal, state, and local government records ( such as the National Priorities List ( NPL)) are only updated semi annually. Other databases are only updated annually. Therefore, FAA believes that the EP should only have to update these records if there is evidence that conditions at the property have changed within the 180 days.

 Site visits: FAA has many remote properties in Alaska and other sparsely populated areas where site visits are not possible at all times during the year. FAA property transfers often take longer than 180 days after an AAI report is finished to complete. In these remote and inaccessible areas, requiring a new site visit every 180 days is excessively burdensome. If an EP must spend a day or more traveling to and from a facility to conduct a new site visit, and that professional charges at least $ 150 per hour, the additional cost would be roughly $ 400, not $ 41$ 47 as stated on page 52571 of the proposed rule.

Response: The final rule retains the requirement that certain aspects of the all appropriate inquiries investigation be updated if the investigation was completed more than 180 days prior to the date of acquisition of the property ( or the date on which the purchaser takes title to the property) to ensure that an all appropriate inquiries investigation accurately reflects the environmental conditions at a property. To increase the potential that information collected is accurate, as well as increase the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report are based on current and relevant information, the final rule requires that many of the components of the inquiries be updated within 180 days prior to the date of acquisition of the property. The components of the all appropriate inquiries that must be updated within 180 days prior to the date of acquisition of the property are: 657 $ interviews with past and present owners, operators, and occupants (' 312.23);

$ searches for recorded environmental cleanup liens (' 312.25);

$ reviews of federal, tribal, state, and local government records (' 312.26);

$ visual inspections of the facility and of adjoining properties (' 312.27); and $ the declaration by the environmental professional (' 312.21( d)).

Also, the final rule retains the proposed requirement that in all cases where a purchaser is using previously collected information, the all appropriate inquiries for the current purchase must include a summary of any changes to the conditions of the property that occurred since the previous inquiries were conducted.

In today= s final rule, we continue to recognize that it is not sufficient to wholly adopt previously conducted all appropriate inquiries for the same property without any review. Certain aspects of the all appropriate inquiries investigation are specific to the current purchaser and the current purchase transaction. Therefore, the final rule requires that each all appropriate inquiries investigation include current information related to:

$ any relevant specialized knowledge held by the current purchaser and the environmental professional responsible for overseeing and signing the all appropriate inquiries report ( i. e., requirements of ' 312.28); and $ the relationship of the current purchase price to the value of the property, if the property were not contaminated ( i. e., requirements of ' 312.29)

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 7 Excerpt Text: The environmental professional and the purchaser are charged with meeting the performance objectives and performance factors of the proposed rule. The Agency is asked to recognize that environmental professionals ( and the purchasers) are better positioned to make a judgment call on the use of previous AAI information on a case bycase basis. The Agency should note that the environmental professional and the purchaser retain the liability of using data obtained in the performance of an inquiry.

It is suggested that the Agency consider that the environmental professional ( and purchaser where appropriate) is best poised to determine the reliability and accuracy of past AAI information as it pertains to the AAI being performed. As proposed, the Agency could limit the environmental professional's use of existing information that could be, on a case by case basis, valid data. The professional judgment of the environmental professional should not be encumbered by a time limiting provision. Based on this, it is recommended that the Agency strike the 1 year/ 180 day limiting provisions as proposed. The Agency may find it beneficial to retain these limiting provisions and designate them as guidelines. 658 Response: Please see response to comment number 0334, excerpt 15.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 12 Excerpt Text: The Proposed Rule mandates an extremely rigid schedule for validation of Phase I ESAs. AAIs will only be valid if the report has been updated within one year prior to the date of acquisition of the subject property. In addition, certain elements of the AAI must be updated within 180 days of acquisition. This is unreasonable and in some cases may be infeasible. As discussed above, the Proposed Rule makes several significant changes to the content of the information that must be gathered as part of the new AAI standards. Most of these changes require more extensive record searches and some may lead to sampling, testing and analyses. Even without these major new aspects, property purchases, particularly industrial property purchases, can lake well over a year to finalize. Given the goal of the Act, to promote cleanup and redevelopment of brownfield sites, the Proposed Rule's timeframe is not adequate.

While it maybe important to update certain aspects of the AA1, such as relevant changes in the condition of the property and any new specialized knowledge of the EP or user, other aspects, particularly with abandoned and closed sites, are unnecessary. Repeating interviews of past owners, visual inspections of the property, and government records searches arc a few examples, where updates would yield little to no additional AAIs information, but are required within 180 days of acquisition. Often, these activities occur early in Phase I ESAs, so it is almost certain that these activities would have to be done more than once before acquisition in order to comply with the standards as written. In addition, a potential purchaser will now be required to pay not only for the AAI report, but contract for the required updates as well. While yielding no environmental benefit, duplication of these activities will increase the time and cost of AAIs considerably. Thus, the prescribed schedule for completion and update should by increased dramatically or eliminated altogether.

Response: Please see response to comment number 0334, excerpt 15.

The requirement to update certain aspects of the all appropriate inquiries if the inquiries were completed more than 180 days prior to the date of acquisition of the property is not a change from the current ASTM E1527 2000 standard, which requires such information to be updated after 180 days. Further, the Agency believes that updating reports for certain information is critical to understanding the current conditions of the property and protecting the environment and human health. 659 Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 19 Excerpt Text: Furthermore, NPCA requests that the schedule for completion and update of AAIs be eliminated, or substantially increased.

Response: Please see response to comment number 0334, excerpt 15.

Commenter Organization Name: TXDOT Comment Number: 0410 Excerpt Number: 1 Excerpt Text: Regardless of acquisition method, either purchase or condemnation, as mentioned earlier, TxDOT follows the requirements outlined in NEPA to evaluate the impacts to the environment by the development and construction of a transportation facility. However, the time between the completion of the initial NEPA assessments and evaluation and the acquisition of the property can be considerable, and usually not within the one year and 180 days outlined within § 312.20( b)( 2) and ( 3) of the proposed rules. Additionally, the development of most transportation facilities, such as new roadways on new right of way or road widening and intersection developments involve the acquisition of property from multiple landowners. The process to acquire property itself can take considerable time, considering the time spent to appraise, negotiate and close on each parcel, this does not count the extra time required for an eminent domain acquisition. Although, TxDOT makes every effort to complete " All Appropriate Inquiry," by performing a Phase I Environmental Site Assessment, through the use of standards such as ASTM E1527 97 and E1527 00 and through compliance with the National Environmental Policy Act ( NEPA), some aspects of the inquiry cannot be completed by the time of acquisition, since the landowner in possession of the property may refuse access or information concerning the property even when acquisition is not conducted through the exercise of eminent domain.

With this in mind, TxDOT recommends that DOTs as well as other government entities be exempted from the requirement to have the components of the inquiry updated within 180 days prior to the purchase. On any number of TxDOT projects, this would require the continuous use of one or several environmental professionals through the one to three or more years required to acquire the necessary right of way.

Therefore, TxDOT recommends the following change in § 312.20 § 312.20 All Appropriate Inquiries ( a) " All appropriate inquiries" pursuant to CERCLA § 101( 35)( B) must include: 660 ( 1) an inquiry by an environmental professional ( as defined in § 312.10), as provided in § 312.21;

( 2) the collection of information pursuant to § 312.22 by persons identified under § 312.1( b); and ( 3) searches for recorded environmental cleanup liens, as required in § 312.25.

( b) All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on the behalf of, persons responsible for the inquiries for the subject property identified under § 312.1( b), provided:

( 1) such information was collected during the conduct of all appropriate inquiries in compliance with the requirements of this part ( 40 CFR Part 312) and with § § 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii);

( 2) such information was collected or updated within one year prior to the purchase date of the subject property;

( 3) not withstanding § 312.20( b)( 2) above, the following components of the inquiries were conducted or updated within a 180 days of and prior to the date of purchase of the subject property.

( 4) such updates to information required under § 312.20( b)( 2)&( 3) above are not required should the inquiry be conduct by or on behalf of a government entity acquiring multiple properties for a project to construct a transportation facility, should the inquiry be completed and updated as part of the National Environmental Policy Act ( NEPA) process.

Response: EPA disagrees with the commenter. The statute provides no basis for treating government purchasers of property differently from other prospective landowners or grantees. Please see responses to comment numbers 0242 ( excerpts 4 and 5) and 0104 ( excerpt 4).

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 3 Excerpt Text: The rule does not allow for the use of prior reports, or portions thereof, that are older than one year. Updated reports are common in the commercial real estate market and generally cost approximately one half of the cost of a Phase I ESA. The historical information such as aerial photographs, fire insurance rate maps, historical topographic maps, street directories, chain of title ownership, etc. do not have to be repurchased, but simply updated. The EPA rule, as currently proposed, appears to require repurchase of 661 these documents, which do not change from year to year.

Response: The regulatory language in the proposed rule was a bit confusing. EPA made some clarifications to the final rule. The regulatory language in the final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation ( i. e., 40 CFR 312). This allows for the use of information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 6 Other Sections: NEW  4.1  The impact of the rule is underestimated Excerpt Text: Age of Due Diligence  The rule does not allow for the use of prior reports that are older than one year. Some industry publications have suggested that this means a Phase I ESA literally expires after one year and a completely new inquiry is required. The specified level of effort to be conducted within 6 months is precisely the scope of work that would need to be conducted if the report were six months old or six years old. The rule should 1) remove the one year requirement, 2) specifically state that reports older than one year can be used, or 3) the economic analysis must account for the thousands of reports that will need to be re created.

Response: The regulatory language in the proposed rule was a bit confusing. EPA made some clarifications to the final rule. The regulatory language in the final rule ( at § 312.20( c)( 1)) allows for the use of information collected as part of prior all appropriate inquiries investigation for the same property provided that the prior information was collected " during the conduct of all appropriate inquiries in compliance with CERCLA Sections 101( 35)( B), 101( 40)( B) and 107( q)( A)( viii)." We have deleted the proposed language that would have required the previously conducted investigation to have been done in compliance with the final regulation ( i. e., 40 CFR 312). This allows for the use of 662 information collected as part of previous all appropriate inquiries, as long as the information was collected in compliance with the statutory provisions for all appropriate inquiries. For property purchased on or after May 31, 1997, therefore, any information collected as part of an assessment in compliance with the ASTM E1527 97 standard or the ASTM E1527 2000 standard may be used as part of a current all appropriate inquiries investigation. For property purchased before May 31, 1997, information from assessments completed and in compliance with the statutory provisions at CERCLA Section 101( 35)( B)( iv)( I) may be used as part of a current all appropriate inquiries investigation. However, this prior information may only be used if updated in accordance with § § 312.20( b) and ( c) of today's rule.

The final rule retains the requirement that certain aspects of the all appropriate inquiries investigation be updated if the investigation was completed more than 180 days prior to the date of acquisition of the property ( or the date on which the purchaser takes title to the property) to ensure that an all appropriate inquiries investigation accurately reflects the environmental conditions at a property. To increase the potential that information collected is accurate, as well as increase the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report are based on current and relevant information, the final rule requires that many of the components of the inquiries be updated within 180 days prior to the date of acquisition of the property. The components of the all appropriate inquiries that must be updated within 180 days prior to the date of acquisition of the property are:

$ interviews with past and present owners, operators, and occupants (' 312.23);

$ searches for recorded environmental cleanup liens (' 312.25);

$ reviews of federal, tribal, state, and local government records (' 312.26);

$ visual inspections of the facility and of adjoining properties (' 312.27); and $ the declaration by the environmental professional (' 312.21( d)).

Also, the final rule retains the proposed requirement that in all cases where a purchaser is using previously collected information, the all appropriate inquiries for the current purchase must include a summary of any changes to the conditions of the property that occurred since the previous inquiries were conducted.

In today= s final rule, we continue to recognize that it is not sufficient to wholly adopt previously conducted all appropriate inquiries for the same property without any review. Certain aspects of the all appropriate inquiries investigation are specific to the current purchaser and the current purchase transaction. Therefore, the final rule requires that each all appropriate inquiries investigation include current information related to:

$ any relevant specialized knowledge held by the current purchaser and the environmental professional responsible for overseeing and signing the all appropriate inquiries report ( i. e., requirements of ' 312.28); and $ the relationship of the current purchase price to the value of the property, if the property were not contaminated ( i. e., requirements of ' 312.29) 663 Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 4 Excerpt Text: § 312.20 All Appropriate Inquires, ( b)( 3)( i)

In § 312.20 All Appropriate Inquires, ( b)( 3)( i) should be changed to read:

 i) Interviews with past and present owners, operators, and occupants ( see § 312.23);

Rationale:

 It should not be required that past owners be re interviewed for the purposes of updating the assessment within 180 days of the purchase of the subject property because past owners generally would not be expected to have new information or knowledge of the property from the original interview to within 180 days of the purchase of the property ( provided the past owner was initially interviewed as a past owner).

Response: The interviews portion of the all appropriate inquiries investigation is one aspect of the investigation that must be updated if the previously conducted all appropriate inquiries was completed more than 180 days prior to the date of acquisition of the property. Exactly which interviews must be updated, beyond the current owner( s) and occupants, is best left to the professional judgment of the environmental professional. EPA agrees with the commenter, in that the views of previous owners may not change over the 180 day time period. However, the environmental professional may want to ask additional questions of previous owners and occupants or verify new information with such persons when updating a previously conducted investigation.

Commenter Organization Name: Alizadeh, Ed Comment Number: PM 0127 0001 Excerpt Number: 2 Other Sections: NEW  <IP_ADDRESS>  Adopt the rule as proposed Excerpt Text: Lastly, I think the rule  By extending the time period that the inquiries were good from six months to a year will result in being a benefit for developers. Frequently developers from start to finish take much longer than six months before the deal is finalized, and by extending that to a year, will provide a benefit to developers who are trying to redevelop brownfield properties. In summary, the rule makes redeveloping brownfields sites more attractive to potential developers. It sets minimum criteria for environmental professionals, which enhances the public confidence, and although through the AAI studies, the fees will potentially increase due to the added research requirements, it will enhance the confidence and will be protective of human health and the environment. 664 Response: EPA thanks the commenter for the stated support of the provision.

Commenter Organization Name: Dismukes, James Comment Number: PM 0127 0012 Excerpt Number: 2 Excerpt Text: The second issue is that on the usage of an environmental report dated greater than one year, the history of a property does not change. The photographs do not change, the ownership of record does not change, and the rate maps do not change. I do not see any avenue of which we can actually take these out of a prior report without having to go back and re get the information, if you will, the way the current standard is proposed.

Response: The final rule retains the requirement that certain aspects of the all appropriate inquiries investigation be updated if the investigation was completed more than 180 days prior to the date of acquisition of the property ( or the date on which the purchaser takes title to the property) to ensure that an all appropriate inquiries investigation accurately reflects the environmental conditions at a property. To increase the potential that information collected is accurate, as well as increase the potential that opinions and judgments regarding the environmental conditions at a property that are included in an all appropriate inquiries report are based on current and relevant information, the final rule requires that many of the components of the inquiries be updated within 180 days prior to the date of acquisition of the property. The components of the all appropriate inquiries that must be updated within 180 days prior to the date of acquisition of the property are:

$ interviews with past and present owners, operators, and occupants (' 312.23);

$ searches for recorded environmental cleanup liens (' 312.25);

$ reviews of federal, tribal, state, and local government records (' 312.26);

$ visual inspections of the facility and of adjoining properties (' 312.27); and $ the declaration by the environmental professional (' 312.21( d)).

Also, the final rule retains the proposed requirement that in all cases where a purchaser is using previously collected information, the all appropriate inquiries for the current purchase must include a summary of any changes to the conditions of the property that occurred since the previous inquiries were conducted.

In today= s final rule, we continue to recognize that it is not sufficient to wholly adopt previously conducted all appropriate inquiries for the same property without any review. Certain aspects of the all appropriate inquiries investigation are specific to the current purchaser and the current purchase transaction. Therefore, the final rule requires that each all appropriate inquiries investigation include current information related to: 665 $ any relevant specialized knowledge held by the current purchaser and the environmental professional responsible for overseeing and signing the all appropriate inquiries report ( i. e., requirements of ' 312.28); and $ the relationship of the current purchase price to the value of the property, if the property were not contaminated ( i. e., requirements of ' 312.29) 666 3.14 The AAI Report Must Be Signed by an EP Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 6 Excerpt Text: We are in agreement with the signature and attestation language requirements provided in the rule.

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

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 7 Excerpt Text: NSPE believes that the environmental professional should be required to provide a signature as well as the two statements provided as part of the proposed rule. However, the importance of the signature, in and of itself, is not inherently obvious and does not afford the owner or the public with any increased protection. It is NSPE's point of view that these protections must be provided at the outset of the project? when the owner is looking for a qualified environmental professional1. In order to provide these protections and information, it is NSPE's opinion that this post project signature requirement should be coupled with an objective pre project licensure requirement, similar to that required for the professional engineer or professional geologist. By using the already existing licensure infrastructure and rules, as established by the individual states, the public would be provided with an objective and searchable database, which they could use to verify the qualifications of the environmental professional and to track the environmental professionals location/ employer should questions arise. These two previously mentioned professions, engineering and geology, provide objective and rational bases for identifying those individuals who possess the requisite minimum knowledge and experience ( i. e., qualifications) needed to perform certain activities. These bases can also serve the public as a resource from which the public can obtain available information related to the environmental professional. Although NSPE focuses on the protection of the professional engineer's license, we also acknowledge that we share specific market niches with other qualified professions. Our concern with the signature is that it, in and of itself, will not provide the public with the objective professional protections that can be provided if a different and more controlled approach were to be employed.

Response: The final rule provides a definition of environmental professional that sets minimum qualifications for the person who supervises the all appropriate inquiries investigation and signs the final report. EPA believes that individuals who meet the minimum qualifications included in the definition have sufficient education and experience to 667 conduct and oversee the activities necessary to complete the investigation and render the opinions necessary regarding environmental conditions and the potential need for further investigation. Prospective landowners and grantees are always free to hire professionals with stronger qualifications than the minimum qualifications provided in the definition of environmental professional.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 1 Excerpt Text:  The proposed requirements for an all appropriate inquiries report, including the signature requirements for the all appropriate inquiries report.

 Intertox supports the proposed requirements for an all appropriate inquiry report. The report is the culmination of the review of historical sources of information, review of government records, and site inspection. Therefore, documentation of approach, results, and identification of environmental liabilities is essential to the purchaser.

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

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 2 Excerpt Text: ) Requirements for an AAI Report including EP Signature a) Page # 5278 b) View: I support the EP Signature. The EP signature signifies that the report is complete, not in draft form. Draft Reports are not considered acceptable. Furthermore it provides assurance and/ or certification the EP has completed the AAI process.

c) Assumptions: Reports without signature are in draft form d) Burden: None.

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

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 18 668 Excerpt Text: Results of Inquiry by an Environmental Professional.

a) Page 52578 b) View: All of the requirements below taken directly from the proposed AAI standard are supported. It clearly defines that the Professional completing the Phase I must meet the definition AAI EP, certification that the Phase I report itself meets the performance standards of the AAI Phase I, provides a professional opinion and identifies relevant data gaps. There are tremendous increases in quality over the current standard, which many professionals argue is not intended require a written opinion. When reviewing a Phase I report we are searching for sound and thorough investigation followed by the Professional's judgment whether or not additional investigation should be conducted.

The proposed AAI standard would require the EP document in a written Phase I report: ( 1) Professional Opinion; ( 2) identification of data gaps and their significance; ( 3) qualifications of the EP.

Furthermore the proposed standard requires the written report include the following language and signature of the EP:

[ I, we ] declare that, to the best of [ my, our] professional knowledge and belief, [ I, we] meet the definition of Environmental Professional as defined in § 312.10 of this part.

[ I, we] have the specific qualifications based on education, training, and experience to assess a property of the nature, history and setting of the subject property. [ I, we] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR part 312.

The above two mandatory statements are to be followed by an EP signature.

c) Assumptions: n/ a d) Burden: This should not place an unreasonable burden on an AAI EP. The certification that AAI has been accomplished, content of the written report, including the EP's professional judgment are critical to the AAI process, preserving the CERCLA defenses, and evaluating the real estate from a Lender's perspective.

Response: EPA thanks the commenter for the stated support of the provisions. 669 3.14.1 The Agency Should Clarify whether the Seal of the Licensed Professional Engineers and Professional Geologists Will Be Required on the AAI Report Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 10 Excerpt Text: It is understood that a new AAI " statement of qualifications" within the ESA is necessary, and that the EP and/ or preparer will need to be sign the ESA. However, will the " seal" of the licensed PE or PG or other registered professional be required on the document?

Response: The final rule does not require that a P. E. or a P. G. apply his or her seal to an all appropriate inquiries report. 670 3.14.2 Review of Information Ordered Closed by Courts Commenter Organization Name: Roeser, Daniel Comment Number: 0249 Excerpt Number: 6 Excerpt Text: Results of inquiry by an environmental professional.

Since the validity of the AAI as defined in the proposed rules is so highly dependent on performance of the inquiry by, or under the supervision of, an EP, I recommend that the proposed rules be modified to require inclusion of documentation of the EP's credentials in the AAI report.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." When hiring an environmental professional, a prospective landowner or grantee may always ask an environmental professional to provide copies of his or her credentials or otherwise prove that he or she meets the minimum qualifications provided in the definition of environmental professional.

Commenter Organization Name: Andrews, Douglas Comment Number: 0399 Excerpt Number: 5 Excerpt Text: 3. 312.21 Results of inquiry by an environmental professional.

Since the validity of the AAI as defined in the proposed rules is so highly dependent on performance of the inquiry by, or under the supervision of, an EP, I recommend that the proposed rules be modified to require inclusion of documentation of the EP's credentials in the AAI report.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." When hiring an environmental professional, a prospective landowner or grantee may always ask an environmental professional to provide copies of his or her credentials or otherwise prove that he or she meets the minimum qualifications provided in the definition of environmental professional. 671 Commenter Organization Name: Hoskins, Herbert Comment Number: 0428 Excerpt Number: 4 Excerpt Text: Since the validity of the AAI as defined in the proposed rules is so highly dependent on performance of the inquiry by, or under the supervision of, an EP, I recommend that the proposed rules be modified to require inclusion of documentation of the EP's credentials in the AAI report.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." When hiring an environmental professional, a prospective landowner or grantee may always ask an environmental professional to provide copies of his or her credentials or otherwise prove that he or she meets the minimum qualifications provided in the definition of environmental professional. 672 3.14.3 The Signature Requirement Should Be Modified Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 9 Other Sections: NEW  3.16  Division of responsibilities ( tasks performed by EP vs. landowner/ purchaser) Excerpt Text: The Proposed Rules allow the landowner or prospective purchaser to perform certain activities. The Proposed Rules do not state how this information is to be incorporated into the AAI process. Is it to be provided to the EP to include in his/ her report? If so, this could make the EP responsible for the accuracy of this information. While R& W supports disclosure from a prospective purchaser/ landowner to the EP and including this information in a single document, R& W requests modifying the signature requirements to explicitly state that the EP cannot comment on the accuracy and is not qualified to assess of the significance of information provided by a prospective purchaser/ landowner.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional is not required to certify the results. In addition, the environmental professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 7 Excerpt Text: The declaration requires the language ' I have developed and performed the all appropriate inquires in conformance with the standards and practices set forth in 40 CFR part 312' to be signed off on by the EP although four areas of 312 requires actions by other parties and not the EP. These are detailed in 312.22 and summarized here as lien search, specialized knowledge or experience, relationship of purchase price to market, and commonly known information about the property. The EP is not responsible for this information and cannot declare that all appropriate inquires was performed if this information is not provided.

Response: The final rule only requires that the environmental professional acknowledge that he or 673 she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional is not required to certify the results. In addition, the environmental professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

Commenter Organization Name: Tramm, Kenneth Comment Number: 0425 Excerpt Number: 2 Excerpt Text: 40 CFR part 312.21( d) requires the environmental professional to make a statement in the written report that ".[ I, We] have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property." This statement implies that in order for an environmental professional to assess a property, they must have specific experience of a property with similar nature, history and setting. For example, if an assessment were conducted at a property located on the Austin Chalk and two weeks into the project, it is determined that a nickel plating facility was formerly located on the property, the environmental professional must evaluate if they had prior experience assessing a nickel plating facility on the Austin Chalk. Given that it is not normal practice for environmental Professionals to keep detailed records of every assessment they have been involved in, the literal interpretation of the proposed declaration is extremely onerous.

Furthermore, the declaration imposes requirements on the environmental professional that are not stated elsewhere in the regulation. We recommend that the declaration language mirror the requirements of an environmental professional as stated in 321.10( b)( 1). As such, we recommend the declaration be modified to the following.."[ I, We] have the 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 the subject property." Alternatively, the EPA should clarify what specific qualifications would be necessary for an environmental professional to conduct an assessment and make a declaration.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional is not required to certify the results. In addition, the environmental 674 professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

The individual carrying out the all appropriate inquiry must acknowledge that he or she meets the requirements of an environmental professional. That is the intent of the signature requirement.

Commenter Organization Name: Westward Environmental Comment Number: 0429 Excerpt Number: 1 Excerpt Text: Regarding the heading of What Are the Proposed Requirements for Reviews of Historical Sources of Information? on page 52561 of the proposed rule:

 it states " The proposed rule would not require that any specific type of historical information be collected " as "  any list of specific documents could result in undue burdens ".

 We agree that a rigid listing of specific sources can be a problem for some areas/ property types.

 However, this reluctance to recommend specific sources gives us concern as it relates to the following statements  "[ I, We] have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [ I, We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." The preceding statements are too open to challenge as they are written.

 We would suggest that the same " qualifier" for declaring conformance with the definition of Environmental Professional be included in the preceding statements as follows  "[ I, We], to the best of [ my, our] professional knowledge and belief, have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [ I, We], to the best of [ my, our] professional knowledge and belief, have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312."

Response: EPA believes the current wording for the signature statement is appropriate. The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional 675 is not required to certify the results. In addition, the environmental professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances. 676 3.15 Suggestions for Including Additional Requirements or Revising the Proposed Requirements Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 21 Excerpt Text:  The identification of voluntary consensus standards that are applicable to and compliant with today's proposed standards and practices for all appropriate inquiries.

 Voluntary consensus standards that may be applicable and compliant to the proposed rule are listed below. We offer these as evidence that all appropriate inquiry standards have been debated and formalized by several organizations since the late 1980s. We suggest that the U. S. EPA and its negotiated rule making committee review these indepth and adapt those elements that would create an all appropriate inquiry rule that is specific, measurable, actionable, and realistic.

 ASFE. 1995. Phase I and Phase II Environmental Site Assessments: RecommendedManagement Procedures for Consultants and Clients, 2nd edition. Silver Spring, MD.  ASFE. 1989. Preacquistion Site Assessments: Recommended Management Procedures for Consulting Engineering Firms. Silver Spring.  American Society of Civil Engineers. 1996. Environmental Site Investigation Guidance Manual ( ASCE Manuals & Reports on Engineering Practice No. 83). New York.  Association of Ground Water Scientists & Engineers. 1992. Guidance to Environmental Site Assessments. Dublin, OH.  California Department of Toxic Substances Control. 2001. Phase I Environmental Site Assessment Advisory: School Property Evaluations. Sacramento.  Canadian Standard Association. 2001. Phase I Environmental Site Assessments ( Z768). Ontario.  Colangelo R. V. and Miller R. D. 1995. Environmental Site Assessments and Their Impact on Property Value: The Appraiser's Role. Chicago: The Appraisal Institute.  Colten C. E. and Mulville Friel D. 1990. Guidelines and Methods for Conducting Property Transfer Site Histories ( HWRIC RR 049). Champaign: Illinois State Museum Hazardous Waste Research & Information Center.  Consulting Engineers Council of Metropolitan Washington. 1992. Environmental Site Assessments: Guidance for Users and Providers The Mid Atlantic Standard of Care. Washington, D. C.  Environmental Assessment Association. 1992. Basic Guide for Environmental Inspection. Scottsdale, AZ.  Environmental Assessment Association. 1992. Environmental Site Assessments Regulations & Guidelines. Scottsdale, AZ.  Federal Aviation Administration. 2003. Environmental Site Assessment ( AIP Guide No. 1310).  Hejzlar Z. 1999. Technical Aspects of Phase I/ II Environmental Site Assessments. West 677 Conshohocken, PA: ASTM.  International Standards Organization. 2002. Environmental Assessment of Sites and Organizations ( ISO 14015). New York.  National Park Service. 1999. Level 1 Pre Acquisition Environmental Site Assessment Guidance Manual. Washington, D. C.  New York State. 2004. Environmental Real Estate Assessment Guide. Governor's Office of Regulatory Reform.  Ohio EPA. 2002. Phase I Property Assessment for the Voluntary Action Program.  South/ Southwest Hazardous Substance Research Center. 2001. Conducting Environmental Site Assessments for Brownfield Properties. Atlanta: Georgia Tech Research Institute.

Response: EPA thanks the commenter for this list of standards that may be applicable to the conduct of all appropriate inquiries. EPA did not receive requests to review potentially applicable standards from any other standards development organization other than ASTM International. ASTM International updated its E1527 environmental site assessment standard to be consistent with the all appropriate inquiries provisions of CERCLA, as amended. EPA is referencing the updated, E1527 05 standard as compliant with the final rule. In the future, if other standards development organizations request that EPA review their standards for consistency with the final rule, the Agency will do so.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 3 Excerpt Text: One size fits all  The completion all appropriate inquiry is required in order to qualify for many defenses to CERCLA liability. In defining AAI, however, EPA has established a one size fits all approach. That the same level of inquiry should be required in order to qualify for defenses as an innocent landowner, adjacent property owner, or one subject to institutional controls seems illogical. Study of the legislation does not reveal a rationale for this uniform requirement.

Institutional Controls  As written, the legislation does not require specific actions to qualify for this exemption. Logically, one should be exempt from liability simply by virtue of abiding by institutional controls. This can occur by design, after careful study or by accident, simply as a result of failure to take actions which violate institutional controls. In order to proactively avoid violation of institutional controls, a more active investigation would be required, however the scope of such an investigation could be significantly less than the scope of work as currently defined.

Adjacent Properties  As a result of the legislation and one size fits all rule, the requirements for defense as an innocent overlier have become more stringent. In the past, no due diligence was required. Under the proposed rule, however, innocent parties who have not performed due diligence will have theoretical liability for groundwater 678 contamination over which they have no control.

Response: In the Brownfields Amendments to CERCLA all of the references to the all appropriate inquiries provisions are the same without qualification regarding the type of liability protection or type of property. EPA sees no reason to vary the standards based upon the type of liability protection ( e. g., bona fide prospective purchaser, contiguous property owner, innocent landowner).

The statute requires that property owners comply with all land use restrictions and not impede the integrity of institutional controls. As part of the final rule for all appropriate inquiries, prospective landowners and grantees must search for institutional controls in place or applicable to the subject property.

The commenter is correct in asserting that Congress did establish that landowners asserting the contiguous property owner liability protection must have conducted all appropriate inquiries prior to acquiring the property. This is a change over the EPA's previous " Contaminated Aquifer Policy."

Commenter Organization Name: Wohlers Environ Svcs Comment Number: 0435 Excerpt Number: 1 Excerpt Text: Does the EPA intend to specify which tasks of the All Appropriate Inquiries ( AAI) investigation should be performed by a designated Environmental Professional ( EP), and which tasks can be performed by a non EP under supervision of an EP? If not, can firms conducting AAI investigations make this determination?

Response: It is left to the discretion of the environmental professional overseeing the conduct of the all appropriate inquiries as to who performs each aspect of the inquiries. An individual meeting the definition of environmental professional must review and sign the written report. EPA also recommends that a person meeting the definition of environmental professional conduct the on site visual inspection of the property. 679 3.15.1 Information Considered by the EP in Reaching an Opinion Regarding the Environmental Condition( s) of the Subject Property Should Be Included in the AAI Report as an Appendix Commenter Organization Name: Katz, William B Comment Number: 0049 Excerpt Number: 1 Excerpt Text: It seems to me that one thing is missing, unless I missed it. That is a requirement that a report must have an appendix containing all the data of whatever kind that has been considered in leading to the opinion of the environmental professional as set forth in the main body of the report. I have reviewed too many reports that do not include all the data, merely the conclusions of the person writing the report. That makes it impossible to consider the information leading to those conclusions and decide if it is correct, complete, or questionable.

Response: The type of background information and documentation to include with the written report of the all appropriate inquiries investigation is left to the discretion of the environmental professional. 680 3.15.2 The AAI Report Should Be Submitted to the Agency or the Appropriate State Agency Commenter Organization Name: Rynders, Dustin, et al Comment Number: 0076 Excerpt Number: 2 Excerpt Text: The agency's proposed rule does not require that a written report be submitted to EPA or another government agency or that a written report be maintained on the subject property for any length of time. § 312.22( c). This seems insufficient in our analysis. We propose the following language be added:

Recording requirement ( a) An entity wishing to assert this defense shall submit a sealed copy to either the Agency or the appropriate state environmental agency to ensure the reliability of the documents.

( b) The copy on file would be unsealed only in the event that an enforcement action concerning the same property was pursued by the Administrator or Agency, and the defendant asserted the " all necessary inquiries" defense.

( c) Until these two conditions are met, the sealed report will be considered as entirely privileged material, with the privilege belonging to the persons who originally filed the sealed copy with the Agency or state environmental agency.

Response: The final rule does not include any new reporting or disclosure obligations and there is not requirement to submit final reports of all appropriate inquiries investigations to EPA or any other government entity. The rule only applies to those property owners who may seek the landowner liability protections provided under CERCLA for innocent landowners, contiguous property owners or bona fide prospective purchasers. The documentation requirements included in this rule are primarily intended to enhance the inquiries by requiring the environmental professional to record the results of the inquiries and his or her conclusions regarding conditions indicative of releases and threatened releases on, at, in, or to the property and to provide a record of the environmental professional's inquiry.

Although today's rule does not include any new disclosure requirements, CERCLA Section 103 does require persons in charge of vessels and facilities, including on shore and off shore facilities, to notify the National Response Center of any release of a hazardous substance from the vessel or facility in a quantity equal to or greater than a " reportable quantity," as defined in CERCLA Section 102( b). Today's rule includes no changes to this reporting requirement nor any changes to any other reporting or disclosure requirements under federal, tribal, or state law. 681 3.15.3 Require EPs to Incorporate Existing Tribal Standards and Regulations into the AAI Process Commenter Organization Name: Leech Lake Ojibwe Comment Number: 0125 Excerpt Number: 1 Excerpt Text: Comment # 1: Require Environmental Professionals to Incorporate Existing Tribal Certification Standards into the AAI Process.

In an effort to protect the health of the Reservation Population and the quality of the Reservation Environment, the Leech Lake Band adopted Tribal environmental laws and, in 2003, formally established a Brownfields Response Program. This program is part of an ongoing multi year effort to assert the Band's inherent sovereignty and civil regulatory authority, expand the Band's environmental enforcement capabilities, and develop a dynamic and responsive approach to the cleanup of contaminated properties.

A key element of this program is the Band's Hazardous Substances Control Act (" HSCA"). The main purpose of this Tribal Hazardous Waste Ordinance is two fold: ( 1) to provide for the cleanup of sites on the Reservation containing hazardous substances; and ( 2) to prevent the creation of future hazards due to the improper disposal of hazardous substances on or into the Reservation's air, land, surface water or groundwater. The HSCA imposes an obligation on all persons residing on or conducting business within the exterior boundaries of the Reservation to comply with the terms of the Act.

Critical to the successful implementation of the HSCA is the Band's enforcement of its Tribal clean up standards, which were designed to be protective of the Reservation Population and the Reservation Environment. These certification standards apply to all lands located within the Reservation's exterior boundaries and supplement the federally mandated requirements of the proposed rule as well as other relevant federal regulations.

EPA's proposed rule, however, makes no mention of the need for environmental professionals (" EPs") to either recognize or consider the existence of applicable Tribal regulatory requirements when undertaking AAI analyses. This absence of regulatory language is surprising in light of EPA's Indian Policy. Based on the requirements of federal law and policy, therefore, EPs who investigate properties on Reservation lands must afford the Band's enforcement standards the same deference and respect as they would to the federal government and its applicable standards.

To ensure that an EP fully complies with the requirements of EPA's proposed rule while simultaneously fulfilling obligations imposed by the Band's Brownfields Response Program and its HSCA, the Band makes the following recommendations:

( 1) EPs must meet informally with Tribal environmental regulatory officials before commencing AAI investigations on properties located within a Reservation's exterior 682 boundaries ( 2) EPs must become familiar with applicable Tribal laws, ordinances, practices, and procedures related to the actual or potential presence of hazardous substances within the Reservation Environment; and ( 3) EPs must structure their AAI analyses and investigations so as to incorporate applicable Tribal standards into the overall AAI process. Furthermore, the Band believes that an EP's failure to integrate Tribal standards into the AAI analysis would result in an invalid certification. Accordingly, the Band suggests strongly that EPA include within its final rule a statement to the effect that any failure by an EP to incorporate Tribal standards into the larger AAI process will be deemed a failure by the EP to conduct AAI in conformance with the standards and practices set forth in EPA's rule. Only by including such language into the final rule will Tribes, including the Leech Lake Band, be able to continue their effective implementation of Tribal laws, ordinances, and related Brownsfield Response Programs.

Response: The commenter's request is beyond the scope of today's rule. Parties conducting business within the jurisdiction of a state or tribal government always are required to comply with all applicable state and tribal regulations. EPA cannot modify a federal regulation to include all applicable provisions of all states and all tribes. 683 3.15.4 The EP's Report Should Only Include Data Necessary for the Judgment of the EP Commenter Organization Name: Koch, Donald Comment Number: 0234 Excerpt Number: 6 Excerpt Text: The regulations misconstrue the meaning of CERCLA ( 101)( 35)( B) in that the report of the environmental professional was meant to be just one component of the all appropriate inquiries rule, not the entire rule. The environmental professional's report should only include the data necessary for the judgement of the environmental professional.

Response: The provisions governing the requirements for the all appropriate inquiries written report are included in 40 CFR 312.21( c) and represent only one aspect of the final rule. These requirements include documentation of the environmental professional's findings, his or her opinion regarding conditions indicative of releases or threatened releases of hazardous substances, the identification of data gaps and comment on their significance, and the signature requirements. 684 3.15.5 The Agency Should Specify a Required Format/ Outline for the AAI Report Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 6 Excerpt Text: The Proposed Rules do not include a suggested outline or format for the AAI report. R& W strongly suggests that a standard outline be required ( as in the E 1527 00). This will facilitate review and use of AAI reports by the marketplace. The lack of a standard reporting format poses significant inconsistencies in the marketplace, similar to the situation prior to the 1993 implementation of E 1527 93.

Response: The purpose of the written report is to ensure that any person claiming one of the CERCLA landowner liability protections be able to show documentation that all appropriate inquiries were conducted in compliance with the federal regulations, should such documentation be required. 1 The Agency notes that while today's final regulation does not require parties conducting all appropriate inquiries to retain the written report or any other documentation discovered, consulted, or created in the course of conducting the inquiries, the retention of such documentation and records may be helpful should the property owner need to assert protection from CERCLA liability after purchasing a property.

The final rule requires that a written report documenting the results of the all appropriate inquiries include an opinion of an environmental professional as to whether the all appropriate inquiries conducted identified conditions indicative of releases or threatened releases of hazardous substances on, at, in or to the subject property. The rule also requires that the report identify data gaps in the information collected that affect the ability of the environmental professional to render such an opinion and that the environmental professional comment on the significance of the data gaps. Given that the type and extent of information available on a particular property may vary greatly with its size, type, past uses, and location, and the type and extent of information necessary for an environmental professional to render an opinion regarding conditions indicative of releases or threatened releases of hazardous substances associated with any property may vary, we decided not to include in the final rule specific requirements governing the content of all reports.

The provisions of the final rule allow for the property owner ( or grantee) and any environmental professional engaged in the conduct of all appropriate inquiries for a specific property to design and develop the format and content of a written report that will meet the prospective landowner's ( or grantee's) objectives and information needs in 1 Nothing in this regulation or preamble is intended to suggest that any particular documentation prepared in conducting all appropriate inquiries will be admissible in court in any litigation where a party raises one of the liability protections, or will in any way alter the judicial rules of evidence. 685 addition to providing documentation that all appropriate inquiries were completed prior to the acquisition of the property, should the landowner ( or grantee) need to assert protection from liability after purchasing a property.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 7 Excerpt Text: Proposed Rule § 312.21( c) requires that the EP prepare a written report; however, aside for the certification statement, it provides no guidance for the format of that report. While we support the discretion the AAI Rule vests in the EP, without clearer guidance from USEPA it will be difficult for the User ( especially a new User or a User unfamiliar with AAI) to determine the adequacy of the EP's report. Consider including sample EP report outlines, similar to that which the ASTM Standard E 1527 provides in its Appendix X2, Recommended Table of Contents and Report Format, which USEPA would consider acceptable in satisfying the Rule's requirements.

Response: Please see response to comment number 0320, excerpt 6. 686 3.15.6 Explicitly State that Due Diligence According to the Standard Will Not Address Significant Compliance Related Liabilities Commenter Organization Name: Auditing Roundtable, BEAC Comment Number: 0363 Excerpt Number: 4 Excerpt Text: The standard should explicitly recognize that conducting " all appropriate inquiry" and qualifying for CERCLA liability defenses does not guarantee the lack of conditions which could give rise to liability to purchasers of property. The standard is expressly aimed at satisfying requirements related to specific CERCLA liability defenses ( innocent landowner, bona fide prospective purchaser, contiguous property owner). These defenses may or may not exist under applicable state law, and where they do not exist under state law, liability may attach to parties taking title notwithstanding performance of " all appropriate inquiry." Similarly, although " all appropriate inquiry" includes an evaluation of operations having the potential to have been a source of releases to the environment, and thus Superfund type liability, conducting due diligence pursuant to the proposed standard will not address regulatory compliance related liability exposures that are of enormous significance. Clarity in this regard is helpful in establishing realistic expectations for users of the standard, and to reduce the potential for liability disputes between users and sendee providers.

Response: The preamble to today's rule clearly states that the requirements of the final rule apply only to prospective property owners who are seeking protection from liability under the federal Superfund Law ( CERCLA). Prospective property owners wishing to establish protection from, or a defense to, liability under state superfund or other related laws must comply with the all criteria established under state laws, including any criteria for conducting site assessments or all appropriate inquiries established under applicable state statutes or regulations. 687 3.15.7 Clarify That, Although the Rule Requires No New Reporting or Disclosure, These May Be Required under Other Existing Standards ( e. g., Release Reporting)

Commenter Organization Name: Auditing Roundtable, BEAC Comment Number: 0363 Excerpt Number: 5 Excerpt Text: 5. The proposed standard should clarify that while no new reporting or disclosure obligations are imposed by the proposal, in the course of performing due diligence under the standard conditions may be detected which require reporting or disclosure under existing legal requirements. Many states and some federal reporting requirements are triggered by " any person having knowledge" of a release or spill, and in some state law7 cases, if certain threshold storage requirements have been met, the reporting obligation is triggered by a spill of " any amount" To avoid any misunderstanding that the proposed standard does not obligate reporting, a clear statement should be made that this standard does not revoke or override underlying state and federal requirements in connection with release reporting.

Response: The preamble to the final rule clearly states that although the final rule does not include any new disclosure requirements, CERCLA Section 103 does require persons in charge of vessels and facilities, including on shore and off shore facilities, to notify the National Response Center of any release of a hazardous substance from the vessel or facility in a quantity equal to or greater than a " reportable quantity," as defined in CERCLA Section 102( b). Today's rule includes no changes to this reporting requirement nor any changes to any other reporting or disclosure requirements under federal, tribal, or state law. 688 3.16 Division of Responsibilities ( Tasks Performed by EP vs. Landowner or Purchaser)

Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 9 Excerpt Text: Allowing by rule certain data to be furnished by the owner, purchaser, client, etc. for use within the ESA may be somewhat questionable by the preparer due to liabilities and confidence the preparer has that the information furnished is accurate, or more so, unbiased. Regulatory data typically obtained for sites from third party database companies are a different scenario, and deemed to be reliable and unbiased in my opinion.

Response: Based upon comments received from the public concerning proposed § 312.22( a), requiring land owners/ grantees provide the environmental professional with certain information in the following situations,

  Searches for environmental cleanup liens against the subject property that are filed or recorded under federal, tribal, state, or local law, as required by proposed § 312.25.   Assessments of any specialized knowledge or experience on the part of the purchaser or landowner, as required by § 312.28.   An assessment of the relationship of the purchase price to the fair market value of the subject property, if the property was not contaminated, as required by § 312.29.   An assessment of commonly known or reasonably ascertainable information about the subject property, as required by § 312.29.

the Agency proposes a change. In today's final rule § 312.22( a) will read:

( a) Persons identified under § 312.1( b) MAY provide the following information to the environmental professional responsible for conducting the activities listed in § 312.21:

As a result of this change from " must" to " may," the environmental professional should note as a data gap any of the four types of information that is not disclosed from the above list. Also, please keep in mind that specialized knowledge is always a factor in a court's decision as to whether to grant liability protection to an owner or grantee.

Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 Except Number: 3 Other Sections: NEW  3.4  Recorded environmental cleanup liens searches Excerpt Text: This section should more clearly indicate that it is NOT the responsibility of the Environmental Professional to search for environmental cleanup liens. Searching and analyzing title and deed records is not generally within the scope of expertise of an Environmental Professional, and is best 689 left to a title company or title insurance company. It should be solely the responsibility of the person defined in § 312.1 to provide any information regarding liens to the Environmental Professional.

Response: The final rule allows that the search for recorded environmental cleanup liens be performed either by the prospective landowner or grantee, or through the inquiry of the environmental professional. The search for such liens may not necessarily require the expertise of an environmental professional and therefore may be more efficiently or more cost effectively performed by the prospective landowner or grantee, or his or her agent. Such liens may be included as part of the chain of title documents or may be recorded in some other manner or format by state or local government agencies. If such information is collected by the prospective landowner or grantee, or other agent who is not under the supervision or responsible charge of the environmental professional, the final rule allows for, but does not require, the information that is collected by or on the behalf of the prospective landowner or grantee to be provided to the environmental professional. If the information is provided to the environmental professional, he or she can then make use of such information during the conduct of the all appropriate inquiries and when rendering conclusions or opinions regarding the environmental conditions of the property. If such information is not provided to the environmental professional and the lack of such information affects the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances on, at, in or to the property, the lack of information should be noted as a data gap ( per the requirements of § 312.21( b)( 2)).

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 8 Excerpt Text: Under the language of the proposed rule, the division of responsibilities pertaining to all appropriate inquiries allows the prospective owner or the landowner to perform certain investigatory activities. It is NSPE's position that the landowner or the prospective purchaser should be allowed to perform these activities, but should not be allowed, under any circumstances, to be protected under the innocent purchaser defense unless the party can show that 1. They possess the minimum educational and experiential requirements as set forth in the final rule, and 2. The author and relationship to the instant property is clearly defined in any and all documentation so that a third party will know of the potential conflicts of interest that may exist.

Response: The entire all appropriate inquiries rule requires good faith compliance. The Agency believes anything less will not be considered compliant with the rule.

Commenter Organization Name: Rose and Westra Comment Number: 0320 690 Excerpt Number: 9 Other Sections: NEW  3.14.3  The signature requirement should be modified Excerpt Text: The Proposed Rules allow the landowner or prospective purchaser to perform certain activities. The Proposed Rules do not state how this information is to be incorporated into the AAI process. Is it to be provided to the EP to include in his/ her report? If so, this could make the EP responsible for the accuracy of this information. While R& W supports disclosure from a prospective purchaser/ landowner to the EP and including this information in a single document, R& W requests modifying the signature requirements to explicitly state that the EP cannot comment on the accuracy and is not qualified to assess of the significance of information provided by a prospective purchaser/ landowner.

Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional is not required to certify the results. In addition, the environmental professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

The individual carrying out the all appropriate inquiry must acknowledge that he or she meets the requirements of an environmental professional. That is the intent of the signature requirement.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 14 Excerpt Text: 1) FAA believes that some of the activities the proposed rule identifies as those the landowner or purchaser might conduct and be responsible for require special knowledge and are not appropriate for a landowner or purchaser to conduct ( 69 FR 52556). For example, the requirement to determine the significance of the relationship between the purchase price of the property and the value of the property if it wasn't contaminated could require specialized knowledge that the landowner or purchaser wouldn't have. FAA believes that the EP should be required to conduct these activities.

Response: Many commenters asserted that an environmental professional should not be required to consider the relationship of the purchase price to the value of the property as part of the all appropriate inquiries investigation. Concerns raised by commenters include whether environmental professionals are qualified to assess the fair market value of a property.

The final rule allows for this criterion to be conducted by the prospective landowner or the grantee or undertaken as part of the inquiry by an environmental professional. If an environmental 691 professional is not qualified to consider the relationship of the purchase price to the value of the property, the prospective landowner or grantee may undertake the task or hire another third party to make the comparison of price and fair market value and consider whether any differential is due to potential environmental contamination.

Commenter Organization Name: CBPA Comment Number: 0344 Excerpt Number: 6 Excerpt Text:  The New Rule Appears to Make the Purchaser ( as Opposed to the Environmental Professional) Significantly Responsible for Discerning Contamination.

ASTM El 527 distinguishes between the responsibilities of the " user", that is the purchaser, and the responsibilities of the environmental professional hired by the user to conduct the site assessment. The structure of ASTM El527 recognizes that purchasers hire environmental professionals to issue Phase I reports and that purchasers will rely on those reports as a defense to CERCLA liability should any contamination problem subsequently come to light. The role of the user in ASTM El527 is minimal. The user may supply certain records to the environmental professional. ASTM El527 00 § 5.1. Users often engage title companies to perform title searches and report environmental liens or use limitations to the environmental professional performing the site assessment. These records are then used in the preparation of the environmental professionals report.

The new rule takes an entirely different approach, appearing to make the user significantly responsible for discerning contamination. Rather than relying on a report prepared by a professional, a purchaser may find himself facing a plaintiffs accusations that he is responsible for ensuring the completeness and accuracy of the Phase I report.

For example, proposed § 312.30 states that "[ throughout the inquires," the user " must take into account commonly known or reasonably ascertainable information. . . and consider such information when seeking to identify conditions indicative of releases or threatened releases." This language appears to make the user responsible for identifying contamination. This appears nonsensical. The user hires an environmental professional to conduct an investigation, and the user should be able to rely on the professional's report without herself analyzing information. This requirement is unclear and increases uncertainty by appearing to increase responsibilities of the user in vague and undefined ways that might be open to any number of interpretations by plaintiffs ( including EPA) in cost recovery actions.

Response: CERCLA places liability for releases and threatened releases of hazardous substances upon owners and operators of facilities and vessels. Owners and operators seeking protection from liability as innocent landowners, bona fide prospective purchasers, or contiguous property owners must comply with the criteria provided in the statute for attaining such protections, including conducting all appropriate inquiries. The statute requires that all appropriate inquiries include an inquiry conducted by an environmental professional. However, the responsibility for conducting the all 692 appropriate inquiries as well as the responsibility for complying with all the other statutory criteria required to obtain protection from liabilities rests with the owner or operator.

A prospective landowner may hire an environmental professional to identify the environmental conditions of a property, but ultimate responsibility for complying with the statutory criteria rests with the property owner.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 5 Excerpt Text: Division of Responsibilities. The proposed approach seems very adequate.

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

Commenter Organization Name: Auditing Roundtable, BEAC Comment Number: 0363 Excerpt Number: 2 Excerpt Text: The assessment report is required to include discussion of activities that the rule recognizes may be outside the purview of the site assessor.

The purchaser or the landowner ( or presumably other experts working on behalf of the landowner) may conduct inquiries relating to; ( i) lien searches, ( ii) an assessment of the specialized knowledge of the purchaser/ landowner, ( iii) an assessment of the reasonably ascertainable information, and ( iv) assessing the relationship between the fair market value of the property and the purchase price. The proposed rule then requires the environmental professional to include such information within the report and to include it as part of the opinions being rendered.

Although these elements should go into a purchaser's ability to demonstrate whether it qualifies for the liability defenses under CERCLA, it should not be a requirement that discussion of these elements be included in the auditor's report if the auditor has not participated in these tasks. Requiring the report prepared by the site assessor to contain discussion of tasks performed by others not employed by the assessor or working at his or her direction could be an unnecessary source of potential liability. Further, in only rare instances will an environmental professional be trained and able to render meaningful opinions on the above four subjects. Thus, most opinions rendered in these areas will be so limited by qualifying language as to render them of little use to those relying on the all appropriate inquiry process.

We recommend that for auditor liability reasons, the environmental professional be required in the report only to disclose the information made available to them during the course of their inquiries, but not to require this information to be a part of the opinions given by the environmental professional. 693 Response: The final rule only requires that the environmental professional acknowledge that he or she meets the requirements to qualify as an environmental professional and " to declare that: [ I/ We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312." This statement would apply only to the statement and information contained in the report. The environmental professional is not required to certify the results. In addition, the environmental professional may always identify as data gaps any information not received from the prospective landowner or grantee that may affect the environmental professional's ability to render an opinion regarding the presence of conditions indicative of releases or threatened releases of hazardous substances.

The individual carrying out the all appropriate inquiry must acknowledge that he or she meets the requirements of an environmental professional. That is the intent of the signature requirement.

Commenter Organization Name: Eden Housing Comment Number: 0380 Excerpt Number: 7 Excerpt Text: The New Rule Appears to Make the Purchaser ( as Opposed to the Environmental Professional) Significantly Responsible for Discerning Contamination ASTM E1527 distinguishes between the responsibilities of the " user", that is the purchaser, and the responsibilities of the environmental professional hired by the user to conduct the site assessment. The structure of ASTM E1527 recognizes that purchasers hire environmental professionals to issue Phase I reports and that purchasers will rely on those reports as a defense to CERCLA liability should any contamination problem subsequently come to light. The role of the user in ASTM E1527 is minimal. The user may supply certain records to the environmental professional. ASTM E1527 00 § 5.1. Users often engage title companies to perform title searches and report environmental liens or use limitations to the environmental professional performing the site assessment. These records are then used in the preparation of the environmental professionals report. The new rule takes an entirely different approach, appearing to make the user significantly responsible for discerning contamination. Rather than relying on a report prepared by a professional, a purchaser may find himself facing a plaintiff's accusations that he is responsible for ensuring the completeness and accuracy of the Phase I report.

For example, proposed § 312.30 states that "[ t] hroughout the inquires," the user " must take into account commonly known or reasonably ascertainable information. . . and consider such information when seeking to identify conditions indicative of releases or threatened releases." This language appears to make the user responsible for identifying contamination. The user hires an environmental professional to conduct an investigation, and the user should be able to rely on the professional's report without herself analyzing information. This requirement is unclear and increases uncertainty by appearing to increase responsibilities of the user in vague and undefined ways that might be open to any number of interpretations by plaintiffs ( including EPA) in cost recovery actions. Eden, its staff, and most purchasers contemplating redevelopment, are not 694 scientists. We cannot be held responsible for identifying contamination ourselves. We must be able to rely on environmental professionals to identify contamination.