The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 246 Commenter Organization Name: Appleby, Mark Comment Number: 0098 Excerpt Number: 1 Excerpt Text: I am making only one objection to this proposed regulation which is the arbitrary decision to define the background and education needed by persons who conduct the reviews. To regulate the many possible backgrounds and educational experiences which many professionals in this field have is unreasonable and invalid as a standard. I believe it will have an opposite effect from the one desired and open less ethical actions in many cases. I have had my own business which conducts Phase I field assessments for just under 9 years. Prior to that more than 20 years managing persons and fact checking environmental assessments. My company has the highest confidence of my clients and we pursue all avenues of review as a matter of ethical business. This element of an otherwise good regulation will effectively remove my company ( as it now operates) from Phase I work. We do not now match the selected educational/ background standard listed.

As an aside, and more pointed to my contention this background stipulation will have the opposite of the desired effects; I have had several Public Engineers who have offered to simply sign my reports for $ 500. I suggest you are limiting business and offering opportunities for unethical behaviors with the needless attempts to define " competent professionals" who would conduct reviews under the guidelines in AAI.

As a matter of business, those companies who conduct environmental reviews that are not ethical, competent or otherwise effective in their review diligence and format will not receive the confidence or business from customers who require these services. Uniform guidelines are a good step, but unifying background and experience is not only impossible but is detrimental to good effective businesses such as my own.

Response: Please see response to comment number 0046, excerpt 1.

Commenter Organization Name: EAI Comment Number: 0109 Excerpt Number: 1 Other Sections: NEW  <IP_ADDRESS>  The proposed minimum requirements will have a negative impact on the ESA industry, small businesses, and the real estate market Excerpt Text: I think you should expand on the proposed grandfathering of current environmental inspectors, the way i understand the current rule proposed , would put a lot of professionals out of business, this is contrary to what the government should do!

Response: Please see response to comment number 0046, excerpt 1. 247 Commenter Organization Name: TXU Comment Number: 0268 Excerpt Number: 2 Excerpt Text: However, one portion of the proposed rule is vague. EPA has defined the term " environmental professional" in such a way that may preclude many of TXU's corporate environmental staff from meeting the definition. TXU's environmental specialists are well qualified and knowledgeable in the environmental issues surrounding real estate transactions and many have been involved in the environmental field for 20 or more years. TXU should be able to continue to utilize its qualified corporate environmental staff to handle all appropriate inquiries in order to qualify for the CERCLA liability protections. The part of EPA's environmental professional definition that should be revised is the term " full time relevant experience." EPA defines " relevant experience" as " participation in the performance of environmental site assessments that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of releases or threatened releases to the subject property."

TXU's environmental specialists fulfill the intent of the proposed requirements because they have the necessary relevant experience. Many have detailed knowledge and experience of environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions. However, environmental site assessments are not their sole responsibility, which is troublesome given the implications of the term " full time". By including this term, EPA will prevent qualified individuals from signing all appropriate inquiries reports. TXU requests that EPA remove the term " full time" from the proposed regulation and allow qualified environmental professionals to supervise all appropriate inquiries, even if environmental site assessments are not their sole responsibility. Very few people perform environmental site assessments on a full time basis and implementing such a requirement will only drive up the cost of environmental site assessments for companies such as TXU, who have qualified environmental experts on staff.

Response: The use of the phase " full time" within the definition of environmental professional and the definition of relevant experience is meant to require that an individual has accumulated the equivalent of 3, 5, or 10 years of experience. An individual may accumulate such experience over a longer length of time than the 3, 5, or 10 years, as long as the total time of accumulated experience would be the equivalent of 3, 5, or 10 years of full time experience. Even after an individual accumulates the required number of years of full time experience, that individual does not have to conduct environmental site assessments, or all appropriate inquiries investigations, on a full time basis to qualify as an environmental professional. 248 Also see response to comment number 0046, excerpt 1.

Commenter Organization Name: Baker Petrolite Comment Number: 0352 Excerpt Number: 4 Excerpt Text: Second, does the definition of " full time, relevant experience" exclude environmental professionals who are currently working in a managerial position overseeing the work of other environmental professionals and having experience conducting Phase I ESAs, but who no longer participate in the performance of ESAs or All Appropriate Inquiries? BPC believes that the definition should include those professionals who are currently working in a managerial role.

Response: Please see response to comment number 0268, excerpt 2.

If individuals are currently working in a managerial position overseeing the work of other environmental professionals, it is EPA's hope that these individuals have previous work experience that will satisfy the requirements of the final rule. If this is not the case, they are not qualified to be in a managerial position overseeing the work of others.

Commenter Organization Name: Kammeraad, Norman Comment Number: 0357 Excerpt Number: 1 Other Sections: NEW  <IP_ADDRESS>  The proposed minimum requirements will have a negative impact on the ESA industry, small businesses, and the real estate market Excerpt Text: The langauge being used in 312.10 does not provide for Grand fathering of all ready existing indivuduals who have practiced in the field of environmental assessments for years. If this rule was to take effect, much like the Michigan Act 451, Part 213 QC, CP rules of 1994 which has similar langauge, EPA will forcefully remove the conduct of 1000' s of individuals. This would be a violation of Federal Law U. S. C. A. Const. Amend. 1 Further, there is a requirement to be met by the legislature and Agency in the promulgation and enforcement of legislation which is known as a ? compelling state interest test? that would in turn provide the Agency ( EPA) authorization to eliminate the free exercise of an individual? s conduct. A statutory classification or rule that infringes on a person's exercise of a fundamental right must be justified by a compelling state interest and achieved by narrowly drawn means. Carey v. Population Services Int'l, 431 U. S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 ( 1977); A Compelling State Interest must be truly compelling, " threatening safety or welfare of the state in a clear and present manner", for restriction to survive free exercise challenge under the First Amendment. Thus, only the States have the right to enforce and remove a persons conduct via threat to Health and welfare. Many firms ( including mine) throughout the US, have worked with either SBA, USDA and Brownfields programs either directly or indirectly. To remove 249 their conduct by not providing Grandfatherization rules, is the same as removing their conduct and thus income. Thus, language is needed in Section 312.10 of the AAI rules that also includes them by definition to protect them.

Response: The Agency believes that it is essential that the person overseeing an all appropriate inquiries investigation have sufficient education and experience to recognize adverse environmental conditions and render sound opinions with regard to the potential for environmental concerns at a property or the need for further investigation. In the preamble to the final rule, EPA clarifies that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 250 2.1.8 Comments on the Proposed Minimum Requirements Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 4 Excerpt Text: In the Federal Register ( August 26, 2004, Vol. 69, Page 52554), the record indicated that the Negotiated Rulemaking Committee performed a balancing test between the need for " a high standard of excellence" and the need to ensure that competent individuals are not displaced. When the issues relate to hazardous wastes, it is NSPE's belief that the only prudent path for EPA would be to base its rules squarely on objective public health and safety issues. If this rule, in fact, is based upon a societal need to protect the careers of certaan individuals, the rulemaking process is flawed. The balancing tests that come out of the rulemaking process must be kept in proper perspective. The proposed rulemaking, however, does not appear to make that objective distinction, and instead it states that this balancing test was for the protection of " competent individuals." NSPE takes issue with the fact that there are no objective methodologies in place that can be used to determine and police the competency of a particular individual. If EPA really wants to protect the public and ensure that only competent professionals provide this service, then it is NSPE's recommendation that EPA:

1. Employ objective criteria to evaluate, discipline, and regulate these individuals ( i. e., similar to professional engineers and professional geologists), or 2. Develop a national database that includes experience and qualifications so that objectivity can be used to determine the competency of the environmental professional.

Response: The Agency believes that it is essential that the person overseeing an all appropriate inquiries investigation have sufficient education and experience to recognize adverse environmental conditions and render sound opinions with regard to the potential for environmental concerns at a property or the need for further investigation. In the preamble to the final rule, EPA clarifies that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional.

Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or 251 engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

The environmental professional overseeing the conduct of the all appropriate inquiries investigation must indicate when he or she signs the report of findings for the all appropriate inquiries investigation that he or she meets the definition of environmental professional included in the final rule ( see final rule section 312.21( d)). EPA is not going to collect, evaluate, or verify the credentials or qualifications of individual environmental professionals, nor is EPA going to develop a data base of information on qualified individuals. If a prospective property owner needs advice on how to find a qualified environmental professional, the prospective property owner may want to request advice from a private professional certification organization or a state licensing board for P. E. s and P. G. s.

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 9 Excerpt Text: 1 Most of the 50 states and the District of Columbia require that Professional Engineer candidates submit a " Supplemental Engineering Record," which discusses in detail the types of projects that the candidate worked on during their internship. In addition, candidates must obtain references from their licensed, and unlicensed, co ¬ workers and outside persons who provide information pertaining to the candidate's professional and technical capabilities as well as their moral and ethical framework. This rigorous process does not seem to be too much to ask for those persons seeking to work on hazardous waste projects.

Response: The environmental professional overseeing the conduct of the all appropriate inquiries investigation must indicate when he or she signs the report of findings for the all 252 appropriate inquiries investigation that he or she meets the definition of environmental professional included in the final rule ( see final rule section 312.21( d)). EPA is not going to collect, evaluate, or verify the credentials or qualifications of individual environmental professionals, nor is EPA going to develop a data base of information on qualified individuals. Should a prospective property owner need advice on how to find a qualified environmental professional, the prospective property owner may want to request advice from a private professional certification organization or a state licensing board for P. E. s and P. G. s.

Commenter Organization Name: IPEP Comment Number: 0266 Excerpt Number: 2 Excerpt Text: What Constitutes An AAI Environmental Professional?

IPEP is pleased to see that EPA's CERCLA/ Superfund program feels that for AAIs to be valid tools which can shield perspective purchasers from liability, these inquiries must be overseen by appropriately qualified, experienced professionals. We also agree with the concept of a two tier definition, the first based on attainment of a license ( or similar certification) and the second by meeting a set of established criteria. We do think however, that it may be prudent to strengthen the proposed definition language to make sure that in order to qualify as an AAI Environmental professional, the individual must meet not only the criteria in item ( 2) in the proposed definition, but also have " sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases " . We feel this link between educational and experience criteria ( degree, licenses, certifications years worked etc.) and the performance standard of being able to develop the necessary opinions and conclusions is one that some of the other emerging regulatory and credentialing programs are lacking.

A number of states have developed and promulgated regulations pertaining to environmental practice credentials for the purpose of identifying individuals who are deemed pre qualified to perform particular tasks in the environmental management field. The programs existing in four states  DE, MA, NJ, and NC  are presented as examples of how licensure and certification have been applied in the field of environmental management. In each case, registered professional engineers and professional geologists licensed at the state level are among but not necessarily the only recognized credentials. Although the programs are similar in many respects, they are significantly different in others, with a common denominator that there is no uniform set of criteria, such as ASTM E1929 98, Standard Practice for the Assessment of Certification Programs for Environmental Professionals: Accreditation Criteria, used to determine the acceptable qualifications and experience for professionals allowed to oversee and approve the environmental management programs that are covered by the particular regulatory program. The lack of such object criteria in many of the emerging regulations illustrate the issues summarized below regarding the need to set objective, " bright line" 253 qualification and credentialing requirements for environmental professionals.

In each of these instances, just as in the proposed rule, the qualifications and experience of the applicants are not compared to a set of objective criteria that meets ASTM E1929 98 with respect to nationally accepted credentialing program guidelines and independent third party accreditation. Additionally, in each of these examples, there is no requirement that the persons employed by the state agency, who review and render judgment on the acceptability of the applications received for the designated credential, have appropriate qualifications, experience, and licensure or certification relevant to the area of environmental professional practice of the applications received for review. Lacking such credentials, the state agency review typically serves primarily as an administrative exercise comparing the information contained in an application to a checklist of requirements. Such an administrative review is not comparable to the rigorous process of licensure or certification used by the states [ to register professional engineers, surveyors, and geologists] or by ASTM compliant environmental certification programs.

Greater detail about the four illustrative programs, their scope, and the details of professional credentialing are included in Appendix C.

Response: The definition of environmental professional in the final rule ( as did the proposed rule) includes a performance standard such as that recommended by the commenter at 40 CFR 312.10, in paragraph ( 1) of the definition of environmental professional [" ( 1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases  on, at, in or to a property, sufficient to meet the objectives and performance factors in § 312.20( e) and ( f))."]

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

EPA is not recognizing in the regulatory language of the final rule private, nongovernmental organizations whose certification requirements meet the environmental professional qualifications included in the final rule. The final rule does not reference any private party professional certification standards. Given the performance based 254 qualifications provided in the final definition of an environmental professional, such an approach is not necessary. Therefore, there is no need to reference or depend upon an independent standard such as the ASTM E1929 standard that assesses professional certification standards. The final rule does not recognize, or reference, any private organization's certification program within the context of the regulatory language. However, the Agency notes that any individual with a certification from a private certification organization where the organization's certification qualifications include the same or more stringent education and experience requirements as those included in today's final regulation will meet the definition of an environmental professional for the purposes of this regulation.

Commenter Organization Name: Anonymous Comment Number: 0273 Excerpt Number: 1 Excerpt Text: After some 30 years of professional practice as a qualified environmental professionsl, I feel that it is important that the AAI Definition of Environmental Professional be broadened and strenghtened as recommended by the Institute of Professional Environmental Practice in their comments on this rulemaking.

Response: Please see response to comment number 0266, excerpt 2.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 3 Excerpt Text: The Band agrees with the proposed language that allows an Environmental Professional to hold a current license and registration from a tribe ( where such tribe has the capacity to license or certify).

Response: EPA is retaining the proposed provision to include within the definition of an environmental professional individuals who are licensed to perform environmental site assessments or all appropriate inquiries by the Federal government ( e. g., the Bureau of Indian Affairs) or under a state or tribal certification program, provided that these individuals also have three years of full time relevant experience. We contend that individuals licensed by state and tribal governments to perform all appropriate inquiries or environmental site assessments, should be allowed to qualify as an environmental professional under today's regulation. State and tribal agencies may best determine the qualifications defining individuals who " possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases... to the surface or 255 subsurface of a property, sufficient to meet the rule's objectives and performance factors" within any particular state or tribal jurisdiction.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 4 Excerpt Text: The Band agrees with the proposed language to allow an Environmental Professional who performs environmental inquiries to be licensed or certified with a tribe. Although some tribes like the Mille Lacs Band do not currently license or certify Environmental Professionals, the Band and many other tribes want the authority to license or certify in the future when capacity allows.

Response: Please see response to comment number 0330, excerpt 3.

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 3 Excerpt Text: In addition, under the currently proposed rules, DEQ will not have the resources to have someone considered an " Environmental Professional" under the proposed rules conduct all of the work necessary. DEQ will need to contract brownfields AAI investigations to an outside contractor, which is an unnecessary expenditure of funds. DEQ personnel who would be excluded from the definition of an " Environmental Professional" can perform the same work as a contractor but at a lower cost. DEQ only receives a limited amount of funds each year through the 128( a) grant and prefers to make the most of those funds.

DEQ also has concerns that the definition of " Environmental Professional" will reduce project officers' credibility who do not meet the proposed definition of " Environmental Professional." Project officers provide comments on documents, conduct oversight, testify in court and conduct many other professional tasks. DEQ believes the AAI rule should clearly state that the definition of an " Environmental Professional" may not be used in any other context.

Response: In the preamble to the final rule, EPA clarifies that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional. In today's final rule, the Agency is retaining the recommendation that an individual who qualifies as an 256 environmental professional conduct, or closely oversee the conduct of, the required onsite visual inspection of the property.

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

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

The definitions provided in § 312.10( b) of the final rule are applicable only to the all appropriate inquiries regulation in 40 CFR Part 312, as indicated at the beginning of that section.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 4 Excerpt Text: The inclusion of individuals with a degree in a scientific field results in more quandaries. What is a scientific field? Math? Astrophysics? Biology? Which better prepares an individual to perform Phase Is? I think that what you are really looking for is the individual that understands and can apply the scientific principle, which is really a philosophic endeavor, and that may or may not be one of the individuals in the acceptable categories. Anyone with a modicum of training and experience can recognize stains or improper use of hazardous materials. In my role as a trainer of new personnel, I found geography majors to be quickest learners and best all round individuals to perform Phase Is. As far as PEs and PGs being disciplinable by their respective state boards, how many 257 are actually disciplined? Code of ethics  many disciplines have codes of ethics that are more commonly ignored than observed. I do agree that investigations involving sampling of soil or ground water ( in Phase IIs) should properly be under the supervision of a PG or applicable PE. I think that the rule should just list generalities, e. g. " possess sufficient specific education, training and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases [ does one have to qualify as a soothsayer to identify threatened releases?] of hazardous substances to the surface or subsurface of a property. The market may not have done as well as some ( including me) would like In weeding out unfit producers, but I do not feel that listing all the different categories will be any more effective. Cheaters will still cheat.

Response: Please see response to comment numbers 0099 ( excerpt 1) and 0336 ( excerpt 1).

Commenter Organization Name: Baker Petrolite Comment Number: 0352 Excerpt Number: 3 Excerpt Text: 2. BPC questions the agency's definition of " full time, relevant experience." BPC believes that the definition of " full time, relevant experience" should be revised to exclude the requirement for an environmental professional to have an understanding of subsurface environmental conditions. First, in depth knowledge and evaluation of subsurface conditions is not necessary during the traditional Phase I ESA or site visit. An extensive understanding of subsurface environmental conditions and investigations is required during a traditional Phase II after an environmental concern has been recognized during the Phase I ESA or All Appropriate Inquiry.

Response: The definition of " relevant experience" in the final rule does not require that an environmental professional have an understanding of subsurface environmental conditions. Although such experience is included as one example of the type of experience that is relevant, the definition does not preclude individuals with other forms of relevant experience and without experience or understanding of surface and subsurface environmental conditions from qualifying as an environmental professional.

Relevant experience, as used in the definition of environmental professional, means: participation in the performance of all appropriate inquiries investigations, environmental site assessments, or other site investigations that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of releases or threatened releases ( per ' 312.1( c)) to the subject property. 258 Commenter Organization Name: ASBOG Comment Number: 0364 Excerpt Number: 2 Excerpt Text: It is our position that any and all proposed " grandfather" clauses as stated in the proposed rulemaking change should be removed. Further, any references to unlicensed individuals being qualified by the Federal Government to perform this type of work should also be stricken. Again, professional licensure is the only mechanism allowed by law in ASBOG* Member Board States for this type of activity.

Response: The definition of environmental professional in the final rule does not include the proposed " grandfather clause." EPA is unsure what the commenter is asserting by stating " professional licensure is the only mechanism allowed by law in ASBOG* Member Board States for this type of activity." EPA contends that it clearly has the statutory authority to establish who is qualified to conduct the required activities of the final rule.

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

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

Commenter Organization Name: Walsh, Gregory Comment Number: 0378 259 Excerpt Number: 4 Excerpt Text: It is estimated that there are twice as many Environmental Laws on the books as civil laws. It would be prudent of the EPA to have as many Professionals reviewing the subject matter and being held accountable for the same. Doing so would indicate to the regulatory population that the EPA is serious about total quality environmental stewardship.

Response: Thank you for your comment.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 14 and 20 Excerpt Text: In addition, the Proposed Rule's four levels of minimum qualifications for EPs are arbitrary, particularly the fourth tier, which allows a professional with an undergraduate degree and 10 years of full time relevant experience to conduct AAIs prior to the final rule in this regard, but prohibits similarly situated individuals from conducting AAIs after such date.

There are numerous ways to gain the requisite expertise and experience to conduct AAIs and there arc various environmental certification, education, and training mechanisms to do so. The definition of EP should not be limited to the stringent and arbitrary qualifications as outlined in the Proposed Rule, clearly favoring Professional Engineers and Geologists, but opened to any EP that can evident specific education, training and experience sufficient to meet the objectives and performance factors outlined in the Proposed Rule. This person will be required to attest to this fact and to conducting the AAIs in conformance with the final regulations  this should be sufficient to meet the objective under the Act that AAIs include an " inquiry by an EP.

Lastly, NPCA urges EPA to redefine EP in order to afford competent environmental experts as well as current environmental employees to serve in this capacity.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited 260 institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

Commenter Organization Name: Kentuckiana Chapter ACHMM Comment Number: 0405 Excerpt Number: 3 Excerpt Text: Amending the definition as proposed by KCHMM will ensure that All Appropriate Inquiries are " conducted at a high standard of technical and scientific quality, while not significantly disrupting the current market for professional site assessment services," 69 Fed. Reg. 52553, and allow those individuals most qualified to conduct such inquiries to continue doing so.

Response: Please see response to comment number 0405, excerpt 1.

Commenter Organization Name: RT Environmental Services Comment Number: 0406 Excerpt Number: 1 Excerpt Text:  Qualifications The Agency proposes to establish minimum qualifications for those completing Phase I Environmental Site Assessments. The regulations, however, are unclear, as to the degree peer review is required, and as to the qualifications of the peer reviewers.

Response: The definition of environmental professional in the final rule does not include a peer review requirement.

Commenter Organization Name: RT Environmental Services Comment Number: 0406 261 Excerpt Number: 3 Excerpt Text:  Recommended Addition to Regulations The Agency should establish as web page which makes available comprehensive EPA sponsored the 1970' s studies of industry waste practices. Establishing minimum qualifications of reviewers will provide no assurance, particularly as time goes on, that the person who prepares or peer reviews the Phase I Environmental Site Assessment is familiar with the industry class which may be currently operated, or which historically operated on a subject property. So long as either the assessor, or peer reviewer has familiarized himself with the relevant industry information, the report will be of acceptable quality. An example of EPA guidance which should be consulted is " Pharmaceutical Industry Hazardous Waste Generation, Treatment, and Disposal ( SW 508), USEPA, 1976."

Response: Given the great variety of types of properties for which all appropriate inquiries investigations may be carried out, it is not possible for EPA to provide guidance on how to conduct such investigations at each type of property. Prospective property owners may want to consult with professional certification organizations or their state government licensing boards for information on environmental professionals with particular types of expertise.

Commenter Organization Name: Bridges, John Comment Number: 0426 Excerpt Number: 1 Excerpt Text: In response to [ SFUND 2004 0001; FRL 7815 2] Standards and Practices for All Appropriate Inquiries ( AAI) I disagree with the proposed definition of environmental professional as drafted. After carefully reviewing the standards for conducting appropriate inquiries into previous ownership, uses; and environmental conditions of property I support the body of the text, but not the proposed definition of environmental professional.

Overall, I believe the notice provides a framework to build upon, perhaps over a specified period of time, however I do not concur with the proposed definition: Environmental Professional as drafted.

More importantly, environmental practitioners today ( seasoned veterans and college graduates) even though competent and skilled may not " qualify" based on the proposed definition. As an example, environmental conditions today have a much broader reach as we enter into the topic of bio terrorism and chemical agents that may have a direct impact to response and recovery actions outlined within the revised National Response Plan ( NRP).

For these reasons, I disagree with the proposed definition of environmental professional, but support the efforts of this proposal. 262 Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

Commenter Organization Name: Froehlich, R A Comment Number: 0438 Excerpt Number: 3 Excerpt Text: In closing, I strongly recommend that a more comprehensive definition of environmental professional be adopted to ensure that the environmental professional who certifies the " All Appropriate Inquiry" environmental site assessments have the demonstrated expertise to ensure that potentially contaminated properties are identified and tested adequately rather than being accepted as " uncontaminated" by an unqualified professional.

Response: In the preamble to the final rule, EPA clarifies that only the individual overseeing the conduct of an all appropriate inquiries investigation must qualify as an environmental professional, as defined in the final rule. Other individuals may contribute to the investigation as long as their activities are conducted under the supervision or responsible charge of the individual qualifying as an environmental professional. In today's final rule, the Agency is retaining the recommendation that an individual who qualifies as an 263 environmental professional conduct, or closely oversee the conduct of, the required onsite visual inspection of the property.

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

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

Commenter Organization Name: Young, Richard Comment Number: PM 0207 0001 Excerpt Number: 3 Excerpt Text: Because ASTM has created a list of procedures for conducting Phase I and Phase II environmental site assessments, virtually anybody who is capable of following those procedures should be considered or could be considered as an environmental professional.

Response: The final rule provides minimum educational and experience qualifications for individuals who qualify to oversee the conduct of all appropriate inquiries investigations. EPA believes that the qualifications included in the definition of environmental professional provide a good balance of educational and professional experience requirements. 264 Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. Many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

Commenter Organization Name: Young, Richard Comment Number: PM 0207 0001 Excerpt Number: 6 Excerpt Text: The standard in its present form does not protect the public interest regarding professional engineers and geologists. There is no level of enforcement or back in qualification or back in qualification process delineated in the law. The law in its current form would give government's approval to a profession without enforcement or qualification to the public by restricting it to two professions, which harms the public good. It can be argued that U. S. EPA does not have the legal authority to decide who is an environmental professional. There is no regulation that provides U. S. EPA with authority to regulate a profession or endorse a profession.

The regulation in its current form violates states' rights to protect individuals to regulate professions at an individual level. There isn't a federally licensed engineer or geologist. It's all done by the state level. If the federal government provides a level of enforcement they are effectively taking away power and funding from states to regulate their professions. 265 Response: EPA asserts that the Agency has the authority to establish qualifications for persons conducting all appropriate inquiries. The CERCLA statute at section 101( 35)( 2)( B)( ii) includes criteria that EPA must include in the regulations governing federal standards and practices for conducting all appropriate inquiries. One criterion is " the results of an inquiry by an environmental professional."

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

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

The final rule also includes within the regulatory definition of an environmental professional, general performance based standards or qualifications for determining who may meet the definition of an environmental professional for the purposes of conducting all appropriate inquiries. These standards include education and experience qualifications. Based upon the input received from the public commenters, EPA 266 determined that the definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of stringent qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced.

Commenter Organization Name: Mittelholzer, Michael Comment Number: PM 0207 0002 Excerpt Number: 4 Excerpt Text: Number two: The definition of an environmental professional found under 312.10, and I'm specifically referring to subpart 2( i) and ( ii), and I apologize for the specificity there, this subsection of the proposed rule creates two different standards regarding the numbers of years of direct working experience required for a professional engineer, PE, and that's three years, versus consultants with all other relevant environmental science backgrounds, which requires them to have five years of professional experience. Also, this category includes engineers who lack a PE's license. NAHB's concern is the proposed rule might have the unintended effect of preventing capable environmental consultants either now or in the future from qualifying as an environmental professional.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned 267 changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries.

Commenter Organization Name: Testa, Steve Comment Number: PM 0359 0002 Excerpt Number: 2 Other Sections: MODIFIED  2.2.1  The Agency should clarify what type of training or continuing education would satisfy this requirement Excerpt Text: The second recommendation reflects on annual refresher courses or continuing education. AIPG also strongly recommends that an annual refresher course be required for the Environmental Professional. Other programs require annual refresher courses to remain current in their fields of practice, such as the eight hour OSHA classes and asbestos training. The proposed rule only recommends continuing education, and most state Professional Geologist licenses don't require any. AIPG has instituted a program for continuing professional development for practitioners.

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

Response: The definition of an environmental professional in the final rule includes a requirement that an environmental professional remain current in his or her field through participation in continuing education or other activities.

Commenter Organization Name: Dannatt, Georgina Comment Number: PM 0359 0004 Excerpt Number: 2 Excerpt Text: Under a performance based approach, the situation will continue to be largely as it is 268 now, where unsophisticated property owners do not understand that their due diligence is inadequate, while sophisticated owners, redevelopment agencies, and lenders call for a higher, more thorough level of investigation.

I'm going to comment directly on three aspects of the rule. First, I believe that the definition of Environmental Professional should not be overly restrictive. To do a Phase One, scientific and research skills are necessary, as well as excellent writing and communication skills.

There has been much comment from the engineering community that only licensed professional engineers and geologists are qualified. Numerous educational backgrounds are suitable training in scientific methods, including chemistry, toxicology, industrial hygiene, biology and soil science, as well as the engineering earth science and environmental science disciplines listed in the proposed rule. In addition, people with as diverse backgrounds as history and geography may make excellent assessors. But regardless of the provider's education, the most important factors are on the job training and experience.

A professional holding a state license who practices in another specialty area is certainly not more qualified than a person with a life science degree whose entire career is performing due diligence assessments.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

In addition, many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause." 269 The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 270 <IP_ADDRESS> The Grandfather Clause is Too Stringent Commenter Organization Name: Gasper, Matthew P Comment Number: 0041 Excerpt Number: 1 Other Sections: NEW  2.1.6  Revise educational requirements to allow individuals with substantial relevant work experience to qualify as EPs Excerpt Text: Each of the requirements state that the individual performing the assessment must have a four year college degree, and a scaled full time employment experience in order to sign the reports. All that sounds good on the surface, however, the rule does not address individuals like myself, and I am sure many others throughout the United States. However, the way the proposed rule is written an individual with an accredited degree in anything at all, and ten years working experience would qualify as an environmental professional.

My situation is that I have been conducting environmental assessments for the past 17 years, and been in business for myself since 1996 ( tax id 59 3390392). I do not have my college degree.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. We hope the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 271 Commenter Organization Name: Wolf, Robert Comment Number: 0195 Excerpt Number: 1 Excerpt Text: I have been performing ESA since at least 1990 and now all of the sudden this rule comes along I will not be able to perform them since I do not have a college degree. I have done hundreds of ESA all over the US and have never had an issue or complaint that I have not properly performed/ evaluated a Site. I agree that some type of Standards need to be established but excluding persons with experience, knowledge and speclilized training, for a degree and a few years experience is not the way.

Response: Please see response to comment number 0041, excerpt 1.

Commenter Organization Name: Appraisal Institute Comment Number: 0212 Excerpt Number: 7 Excerpt Text: the experience requirement for those with no degree in an environmentally concentrated field be reduced from ten years to five years. We agree that when actual testing is required, a higher level of education and experience is appropriate, but for the level of research required under AAI, the public health can be adequately protected at the fiveyear experience level.

Response: Please see response to comment number PM 0359 0004, excerpt 2.

Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 5 Other Sections: NEW  2.1.4  Revise educational requirements to allow individuals with Baccalaureate or higher degrees in areas other than engineering, environmental science, and earth science and five or more years of relevant experience to qualify as EPs Excerpt Text: I support the changes put forward by the National Registry of Environmental Professionals  in that § 312.10( b)( 1)( i iv) of the EPA proposed rule be amended to state all requirements set forth for engineers to conduct all appropriate inquiries be the same as those with a BA or BS level degree in an environmentally concentrated field in conducting the same inquiries; and, the experience requirement for those with no degree in an environmentally concentrated field be reduced from 10 years to 5 years. 272 Response: The definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced.

Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

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

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 4 Excerpt Text: We strongly urge the EPA to incorporate language in the regulation to grandfather individuals involved in the performance of AAIs prior to the effective date of the final 273 regulation without regard to the education criteria as proposed. Individuals who become actively involved in AAIs following the effective date of the regulation would then have to meet the definition of environmental professional as proposed. Doing this would minimize the impact to the regulated community and raise the bar as desired by the Agency moving forward. The grandfathered environmental professional could be required to attest to their " grandfathered status" in the report along with the statement required in § 312.21( d). Furthermore, it is our position that individuals with 5 years or more of relevant AAI experience who have earned associate of science degrees in an environmental discipline should meet the definition of environmental professional. We are requesting that the EPA amend the proposed definition of environmental professional to reflect this.

Response: Please see response to comment number 0225, excerpt 5.

Commenter Organization Name: Andrews, Douglas Comment Number: 0399 Excerpt Number: 3 Excerpt Text: ( 2)( iv) Paragraph ( 2)( iv) also should include certifications from relevant professional organizations as a qualification for the " grandfathering" provision of AAI. Therefore, I propose the following wording for this paragraph:

As of the date of promulgation of this rule, have a Baccalaureate or higher degree from an accredited institution of higher education, or be certified in the management of hazardous materials or other relevant field of practice by a third party accredited professional organization, and have ten ( 10) years of full time relevant experience.

Response: EPA is not recognizing in the regulatory language of the final rule private, nongovernmental organizations whose certification requirements meet the environmental professional qualifications included in the final rule. The final rule does not reference any private party professional certification standards. Given the performance based qualifications provided in the final definition of an environmental professional, such an approach is not necessary. The final rule does not recognize, or reference, any private organization's certification program within the context of the regulatory language. However, the Agency notes that any individual with a certification from a private certification organization where the organization's certification qualifications include the same or more stringent education and experience requirements as those included in today's final regulation will meet the definition of an environmental professional for the purposes of this regulation.

Commenter Organization Name: Kentuckiana Chapter ACHMM Comment Number: 0405 274 Excerpt Number: 2 Excerpt Text: KCHMM is encouraged by EPA's decision to " grandfather" individuals who as of the date of promulgation of the final rule " have a Baccalaureate or higher degree from an accredited institution of higher education and have ten ( 10) years of full time of relevant experience" as environmental professionals. 40 CFR § 312.10 ( 2)( iv). KCHMM recommends that the definition of " environmental professional" in 40 CFR § 312.10 ( 2)( iv) be amended to include individuals certified by professional organizations, such as ACHMM, as follows:

 As of the date of promulgation on this rule, have a Baccalaureate or higher degree from an accredited institution of higher education and have ten ( 10) years of full time of relevant experience, or be an individual certified by a professional organization with third party accreditation and have ten ( 10) years of full time relevant experience.

In the case of a CHMM, such an individual would have the following qualifications: ( 1) be certified prior to 2003, ( 2) have at least twelve years or more of experience in the field of managing hazardous materials; ( 3) demonstrated knowledge and understanding of the basic principles involved in hazardous materials management, including an understanding of the regulations governing sites, ( 4) passed a rigorous exam; and ( 5) pledged to maintain the highest standards of integrity through the CHMM Code of Ethics.

Response: Please see response to comment number 0399, excerpt 3.

Commenter Organization Name: Braman, Marshal Comment Number: 0454 Excerpt Number: 1 Other Sections: NEW  2.1.6  Revise educational requirements to allow individuals with substantial relevant work experience to qualify as EPs Excerpt Text: I have been conducting Phase 1, 2 and 3 work for the past 15 years ( 1989). Many of which I was in a supervisory and project manager responsibility level. I have 2 years of science education from a Community College and 2 years of education in commercial horticulture from a Technical College. I successfully completed the horticultural program although it did not offer a baccalaureate degree. In addition I have attended numerous seminars over the past 15 years to develop skills specific to phase 1 and 2 work, OSHA training, environmental discovery and remediation.

I have personally prepared over 100 phase 1 investigations.

Further, I have also reviewed in a supervisory capacity over 200 phase 1 investigations.

It is my understanding that I would not qualify as an environmental professional under the proposed rules. 275 In all of the projects that I have been involved in I have never had a phase 1 project in which issues of environmental concern were identified subsequent to completion of the assessment.

I bring this to your attention because I very much enjoy my career choice of being an environmental specialist. If this regulation passes in it's present form I will not be allowed to perform my job. I do not want that to happen.

Please include an additional grandfather provision for a combination of education and experience equal to 14 or 15 years.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 276 Commenter Organization Name: Dillman, Malcolm Comment Number: PM 0359 0001 Excerpt Number: 1 Excerpt Text: My first concern is with the qualifications for designation of Environmental Professional as defined in Subpart B 312.1  or .10  excuse me  the requirement of any baccalaureate degree from an accredited institution and ten years of full time relevant experience.

I must ask the question, what does an individual with a degree in sociology or communications or music offer above an individual without any degree that has the equivalent or greater full time relevant experience and perhaps more actual field experience?

Under different programs that the EPA has, they provide for experience, completion of a course and/ or passing an examination to qualify individuals, regardless of a degree, in areas where the health and welfare of children are at stake.

The EPA requirements for lead based paint risk assessor are  and I'm reading from the website  pass an accredited inspector course; pass an EPA accredited risk assessor course; pass an EPA assessor certification examination; and meet one of the following requirements: A, a bachelor's degree and one year experience; or, an associate's degree and two years of experience in a related field; or C, certification as an industrial hygienist, professional engineer, registered architect and/ or certification, registered  or excuse me  related engineering health or environmental field; or D, a high school diploma or equivalent diploma, or equivalent, and at least three years' experience in a related field. The lead based paint risk assessor makes judgments that have implications on the protection of human health; specifically, children under six.

State programs also provide for certifications of Environmental Professional with depth of environmental experience that allows them to make appropriate judgments based on the available data. Some of these states are the Nevada Certified Environmental Manager program. Their requirements: Again, a college degree in environmental science relevant to professional registration, or a combination of education/ experience judged by the Division itself. And that's the Environmental Protection Division of Nevada.

In Utah, the U. S. D. Consultant program requires that  provided its acceptance in this of a bachelor's or advanced degree from an accredited college or university with major study in environmental health, engineering, biological, chemical, environmental or physical science; or equivalent education and experience as determined by the Executive Secretary of the Division of Environmental Response and Remediation in Utah.

California has a program to be a Registered Environmental Assessor. Their program requires a bachelor's or higher degree from an accredited college or university in physical or biological science, engineering or law, or five years of substantial experience acquired within the last eight years performing environmental assessments relating to hazardous 277 substances and/ or hazardous waste management.

I would suggest that over ten years' experience and hundreds or thousands of report submissions would have weeded out the incompetent people in this business.

I would respectfully submit that the grandfather clause be amended to accept those environmental professionals with a minimum of ten years' experience where that experience is valid and can be documented.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. 278 <IP_ADDRESS> The Grandfather Clause is Not Stringent Enough Commenter Organization Name: Engels, Joseph G Comment Number: 0088 Excerpt Number: 2 Excerpt Text: I am discouraged by the grandfather clause designation for persons with 10 years of experience as qualified environmental professionals. From my experience, persons who do not have a college education and degree in a technical area relevant to this practice are not qualified to make sound technical decisions and to offer opinions of a technical nature having to do with groundwater flow, chemical reactions and processes, health risks, etc. As an analogy, is someone with a history or english degree ever qualified to offer legal or medical opinions? Is it really in the public's interest to allow unqualified persons to practice? That being said, the proposed rule does raise the bar for a minimum practice standard and should help to weed out some of the bottom feeders who exist in this industry. All things considered, I support the rule.

Response: The definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced.

Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

In addition, many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause." 279 The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries.

Commenter Organization Name: Simon, Richard M Comment Number: 0089 Excerpt Number: 3 Excerpt Text: I am, however, concerned with the ' grandfather' designation of certain environmental professionals. In my firm, we will only allow those who have met the requisite education, training, and experience to practice as environmental professionals.

Response: Please see response to comment number 0088, excerpt 2.

Commenter Organization Name: Anonymous Comment Number: 0209 Excerpt Number: 2 Excerpt Text: Finally, grandfathering of unlicensed individuals who are currently acting in the capacity of Qualified Environmental Professionals will merely carry forward the issues that originally led to this rule being published. Therefore, no individual should be grandfathered.

Response: Please see response to comment number 0088, excerpt 2.

Commenter Organization Name: NSPE Comment Number: 0230 Excerpt Number: 2 Excerpt Text: NSPE is concerned that the rulemaking as it is currently written has little ability to regulate the persons who take on the title of environmental professional. EPA does not specify any monitoring or screening of the environmental professionals' qualifications, and we are concerned that this would open the door for abuse and leave the public with little protection. The rule allows any individual who is under the subjective belief that 280 they possess the qualification required under the proposed rule to ply their craft on the unwitting public. The public is provided no method with which to objectively measure the abilities or qualifications of these persons or any ability to objectively measure or know that a particular individual actually meets these requirements. A proposed rule that allows environmental professionals to self police themselves seems contrary to public policy and is something that should be avoided.

Response: The environmental professional overseeing the conduct of the all appropriate inquiries investigation must indicate when he or she signs the report of findings for the all appropriate inquiries investigation that he or she meets the definition of environmental professional included in the final rule ( see final rule section 312.21( d)). EPA is not going to collect, evaluate, or verify the credentials or qualifications of individual environmental professionals. Should a prospective property owner need advice on how to find a qualified environmental professional, the prospective property owner may want to request advice from a private professional certification organization or a state licensing board for P. E. s and P. G. s.

We leave enforcement of this rule up to the courts. However, if a property owner or grantee is seeking liability protection, it is in their best interest that they find an environmental professional who will adequately perform the work. Further, as is the case generally, an individual may have recourse against somebody who misrepresents themselves as an environmental professional who is actually not an environmental professional. However, the commenter's point is a good one   consumers of this service must be selective in their selection of an EP.

Commenter Organization Name: Lindberg, David Comment Number: 0313 Excerpt Number: 1 Excerpt Text: I am, however, very concerned with the proposed " grandfather" designation of certain environmental professionals. In our firm, we will only allow those who have met the requisite education, training, and experience to practice as environmental professionals. To do less would be a disservice to those who rely on our expertise.

Response: Please see response to comment number 0088, excerpt 2.

Commenter Organization Name: Herin Comment Number: 0329 Excerpt Number: 2 Excerpt Text:  With respect to the definition of an environmental professional ( EP), I'd offer that paragraph 312.10( b)( 2)( iv) provides some perhaps unintended loopholes and should be 281 deleted. Further, regarding the description of " relevant experience", I would offer that EPA consider adding language indicating the EP must be able to demonstrate professional environmental site assessment experience associated with the type of landuse operations which are known to be involved with the site being evaluated.

Response: Please see response to comment number 0088, excerpt 2.

Given the large variety of uses that may occur at any one property over time and although EPA understands the merits of the commenter's suggested revision to the definition of relevant experience, imposing such a requirement could be overly burdensome to both prospective property owners and businesses that conduct all appropriate inquiries.

Commenter Organization Name: CA Board For Geologists and Geophysicists Comment Number: 0358 Excerpt Number: 1 Excerpt Text: The Board strongly concurs in Section 312.10( b)( 4) of the proposed rule which states:

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

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

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

Response: The final all appropriate inquiries rule only establishes requirements for the conduct of all appropriate inquiries for the purpose of establishing liability protection under CERLCA, which is a federal statute. States are free to regulate specific actions related to state law more stringently. For instance, states can require individuals who install monitoring devices to be certified geologists or be state certified, etc. However, to comply with the Federal All Appropriate Inquiries Rule and receive federal liability protection, one must meet the standards articulated in the final rule. 282 Commenter Organization Name: Smith, Michael Comment Number: 0360 Excerpt Number: 3 Excerpt Text: I am, however, concerned with the " grandfather" designation of certain environmental professionals. In my firm, we will only allow those who have met the requisite education, training, and experience to practice as environmental professionals.

Response: Please see response to comment 0088, excerpt 2. 283 <IP_ADDRESS> The Proposed Minimum Requirements Will Have a Negative Impact on the ESA Industry, Small Businesses, and the Real Estate Market Commenter Organization Name: Gasper, Matthew P Comment Number: 0041 Excerpt Number: 2 Excerpt Text: I believe that the proposed rule by the EPA places an undue strain on small businesses like mine.

Response: EPA estimates that the impacts of the final rule, on the whole, will not be significant for small entities. We estimate that, for the majority of small entities, the average incremental cost of the final rule relative to conducting an ASTM E1527 2000 Phase I Environmental Site Assessment will be between $ 52 and $ 58. When we annualize the incremental cost of $ 58 per property transaction over ten years at a seven percent discount rate, we estimate that the average annual cost increase per establishment per property transaction will be $ 8. Thus, the cost impact to small entities is estimated to not be significant. A more detailed summary of our analysis of the potential impacts of today's rule to small entities is included in " Economic Impacts Analysis of the Final All Appropriate Inquiries Regulation." This document is included in the docket for today's rule.

Commenter Organization Name: Brenn Comment Number: 0055 Excerpt Number: 2 Excerpt Text: As this proposal is presently being presented, I know that this burden being placed on lenders and property owners will have a big effect on real estate sales and financing. Some areas, such as the area I live in, have very few people that do this type of work and most of them are not engineers. I further believe that the area that I serve; Western Nebraska and the southwestern part of South Dakota have no environmental inspectors that have the knowledge of the area.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience. 284 In addition, many commenters pointed out that the proposed definition placed too much emphasis on educational requirements and did not allow persons with a significant number of years of experience in performing environmental assessments to qualify as environmental professionals, for the purposes of the all appropriate inquiries rule, if they do not have a college degree in science or engineering. In response to the concerns raised by commenters, the final rule provides that individuals that do not meet the required educational requirement ( i. e., do not have a Baccalaureate or higher degree in a field of engineering or science from an accredited institution of higher education) will qualify as an environmental professional if they have ten ( 10) years of relevant full time experience in the conduct of all appropriate inquiries investigations, or Phase I environmental site assessments. In addition, today's final rule does not include the proposed " grandfather clause."

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

Commenter Organization Name: None Comment Number: 0087 Excerpt Number: 1 Other Sections: NEW  2.1.6  Revise educational requirements to allow individuals with substantial relevant work experience to qualify as EPs Excerpt Text: I think that it is wrong to disregard the many years of experience that lots of professionals have just because they do not have a college degree. There should be some provision in this regulation to allow non degreed professionals with a certain amount of professional experience in the field to be grandfathered in as " Environmental Professionals". The way this portion of the regulation is now written is unfair and is going to cost alot of highly qualified and experienced people to lose their livelihoods. It is essential that a grandfathering provision be included in this regulation.

Response: Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types 285 of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

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

Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 13 Excerpt Text: I realize that the task of the AAI committee is a difficult one, but a certain amount of " common sense" regarding the " environmental professional" issue is extremely important and cannot in my opinion be overemphasized. I would dare to estimate how many currently trained individuals such as myself are on the brink of losing some of their workplace flexibility or current " livelihood", especially at my age ( 53), because they do not have a degree.

I have not even addressed my opinion as to what I feel this new AAI ruling is going to do to the current, very competitive market for ESA costs. I feel that the committee is likely very optimistic that it will not have a significant influence in cost, but I can assure you that in this " real world" where professionally registered persons are used... that service has to be paid for and is not as inexpensive as using technically trained and competent persons. I thank you in advance for your time and attention to my additional comments 286 and questions.

Further government involvement with already established guidelines which in the " real world" seem to work is often times an unappreciated task at hand, but is necessary to protect both human health and the environment. Proposing rules that are beneficial to those ends expend valuable tax dollars, and take endless hours to prepare. What I feel each individual in preparing those rules should ask themselves is, " Is what is being proposed... reasonable and based on common sense guidelines, and not politically motivated or creating undue burdens?"

Response: Please see response to comment number 0087, excerpt 1.

Commenter Organization Name: EAI Comment Number: 0109 Excerpt Number: 1 Other Sections: NEW  2.1.7  Revise the grandfather clause to allow all individuals currently conducting site assessments to qualify as EPs Excerpt Text: I think you should expand on the proposed grandfathering of current environmental inspectors, the way i understand the current rule proposed , would put a lot of professionals out of business, this is contrary to what the government should do!

Response: Please see response to comment number 0087, excerpt 1.

Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 1 Excerpt Text: The EPA has proposed that a professional engineer be placed above all environmental and other professional qualifications in the signing off on all appropriate inquiry investigations. The current rules only state what one must do to conduct such an inquiry  the proposed rule states who that person has to be. Such an unwarranted elevation of roles endangers the public well being, hurts small businesses, and could slow down home building  one of the primary engines of our economy.

Response: Although the final rule recognizes tribal and state licensed P. E. and P. G. s and other such government licensed environmental professionals with three years of experience to be environmental professionals, the rule does not restrict the definition of an environmental professional to these licensed individuals. The definition of an environmental professional also includes individuals who hold a Baccalaureate or higher degree from an accredited institution of higher education in engineering or science and have the 287 equivalent of five ( 5) years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries. In addition, individuals with ten years of full time relevant experience in conducting environmental site assessments, or all appropriate inquiries qualify as environmental professionals for the purpose of conducting all appropriate inquiries. Individuals with these qualifications most likely will possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property, sufficient to meet the objectives and performance factors included in § 312.20( e) and ( f).

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

In the case where a state or tribal government does not have a professional licensing or certification program, the final rule provides other options for qualifying as an environmental professional ( i. e., experience and educational requirements). EPA does not have an environmental professional licensing program and has no plans to establish such a program. The commenter is incorrect in asserting that in those cases where a state does not have a licensing program for professional geologies, " the U. S. EPA will be required to process and verify the accuracy and completeness of each application."

The final rule includes within the regulatory definition of an environmental professional, general performance based standards or qualifications for determining who may meet the definition of an environmental professional for the purposes of conducting all appropriate inquiries. Based upon the input received from the public commenters, EPA determined that the definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of stringent qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced. 288 Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 2 Other Sections: NEW  2.3.1  Professional engineer certification and professional geologist certification do not ensure high level of professional ability Excerpt Text: First, under the proposed rule, an engineer with no environmental training at all can be made responsible for assessing land with significant environmental contamination. " All appropriate inquiries" require data collection and visual inspection. Such duties do not translate into the professional certification of " engineer." Placing someone in charge of evaluating environmental liabilities with no formal environmental training is a risk to the public health.

Response: The final rule requires professional engineers to have at least three years of full time relevant experience to meet the definition of an environmental professional.

Please also see response to comment number 0087, excerpt 1.

Commenter Organization Name: Stevens, Scott Comment Number: 0225 Excerpt Number: 3 Excerpt Text: Second, land evaluation and appraisal is a business engaged in by many smaller firms and sole proprietorships. Forcing all of these businesses to hire the services of a Professional Engineer for no significant interest of the public good is an undue burden that will force many small businesses out of business.

Thirdly, placing the over baring requirement of having an engineer as the ultimate stopgap to all appropriate inquiries could slow down the home building market. If the EPA proposed rules do take affect, all current land evaluations will have to stop while the services of engineers are sought and companies try to figure out a way to pay for the added cost of more personnel and yet another layer of middle management placed on them by the government that is actually serving to endanger the public health rather than protect it. Even the National Home Builders Association has requested EPA to examine § 312.10( b)( 1)( i iv) since listening to the National Registry of Environmental Professionals (" NREP") testimony to EPA.

Fourthly, the bill/ rule is discriminatory in nature to other environmental professionals, and will reduce competition among other environmental professions. If competition among the environmental professions is reduced, it will give a select number of geologists and engineers the opportunity to fix prices and maintain a monopoly over assessments of environmentally tainted property. 289 Response: It is EPA's opinion that this rule will not affect the market for real estate appraisals. Appraisal firms will certainly not have any requirements to hire the services of a professional engineer to render an appraisal.

The definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced. The definition of environmental professional in the final rule does not require an individual to be an engineer to qualify as an environmental professional.

Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

The Agency has made every effort to take public comment into consideration while promulgating the final all appropriate inquiries rule. To this end the above mentioned changes have been made to the standards set out for environmental professionals. It is the opinion of the Agency that the modified standards will establish sufficiently high standards for environmental professionals, ensuring environmental responsibility and health protection. Additionally, we believe that the modified standards are also superior in that they are more fair than the proposed standards. EPA believes the balance struck on this issue will result in both environmental protection and a fair gauge of an environmental professional's ability to carry out an all appropriate inquiries. The modifications made to the definition of environmental professional should alleviate the 290 commenter's concerns regarding the costs associated with finding and employing qualified environmental professionals to conduct all appropriate inquiries investigations.

Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 2 Excerpt Text:  Employment. If enacted in the current form, the regulation has a potentially severe impact on education and educational employment ( short term and long term). There are 787 higher education programs that offer environmental science that will be affected by the regulation.

 Antidiscrimination. The law in its current form potentially violates U. S. Antidiscrimination laws and has a significant reduction impact on minority businesses in the environmental profession. The total number of non engineering environmental professionals in the United States is estimated at 1,120,584. The total number of black non engineering environmental professionals is estimated at 100,853.

 Antitrust Implications. The top five ( 5) engineering firms in the U. S. control close to 35% of the gross U. S. revenues and engineering work of $ 7 billion. The next ten ( 10) control 30% with only 35% left to be split up among all of the rest. This regulation in its proposed form will wipe out the smaller firms due to a legalized monopoly and bankruptcy from resulting impacts.

Response: EPA disagrees with the commenter's assertion that education and employment will be adversely affected by the final rule. The commenter cites very broad statistics with regard to the market for engineering services. EPA contends that the market for Phase I site assessment services is much more competitive than the commenter is asserting. The definition of environmental professional in the final rule will allow for many practicing professionals to meet the definition or qualify as an environmental professional for the purpose of overseeing all appropriate inquiries investigation without incurring extensive costs or burdens.

The definition of environmental professional included in today's final rule establishes a balance between the merits of setting a high standard of excellence for the conduct of all appropriate inquiries through the establishment of qualifications for environmental professionals and the need to ensure that experienced and highly competent individuals currently conducting all appropriate inquiries are not displaced. The definition of environmental professional in the final rule does not require an individual to be an engineer to qualify as an environmental professional.

Based upon public comments received in response to the proposed rule on the issue of qualifications for the environmental professional, the Agency made a few modifications to the proposed definition of environmental professional. EPA agreed with commenters 291 who pointed out that the requirement that environmental professionals hold specific types of science or engineering degrees was too limiting. In the final rule, persons with any science or engineering degree ( regardless of specific discipline in science or engineering) can qualify as an environmental professional, if they also have five ( 5) years of full time relevant experience.

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

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

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

Commenter Organization Name: Young, Richard Comment Number: 0243 Excerpt Number: 5 Excerpt Text: Second, land evaluation and appraisal is a business engaged in by many smaller firms and sole proprietorships. Forcing all of these businesses to hire the services of a Professional 292 Engineer for no significant interest of the public good is an undue burden that will force many small businesses out of business. As these businesses are closed, unemployment in the environmental and property assessment professions will increase. These individuals will also be forced to retrain and build new skill sets that will place a burden on individual State economies in terms of welfare and job training.