Commenter Organization Name: Fewel, Chris Comment Number: 0370 Excerpt Number: 2 Excerpt Text: Because of this, I believe the proposed rule provides deficient appraisal methodology advice without adequately explaining the valuation process, which could come to haunt a property owner ( or EPA) in the future.

I support a minor clarification to the Preamble, Section III M paragraph 2 to help provide better direction to the public and prospective purchasers. Section III M of the Preamble should read as follows:

" The comparison of purchase price to Fair Market Value required to meet Section 312.29 of the Act may be accomplished in several ways. While the proposed rule does not require that a real estate appraisal be conducted to achieve compliance with this criterion, the prospective purchaser should make the decision regarding scope of this study in light of a potential need to defend against liability as a prospective purchaser. An informal assessment of the property may be conducted using acceptable valuation methodology. The Prospective Purchaser must decide if the informal assessment is sustainable in a later action. But, it should be noted that in most transactions, a formal appraisal is being prepared for lending or other purposes. The intended use section of the appraisal can include its utilization for AAI compliance. Appraisals are prepared to meet the Uniform Standards of Appraisal Practice ( USPAP). USPAP requires that appraisers analyze the details of the current transaction. This analysis can and should include a study of the relationship of the price being paid to market value.

The objective is to determine whether or not the purchase price to be paid for the property is reflective of the environmental conditions present at the site. Significant differences between the Market Value of the property " as if unimpaired" and the purchase price provide a basis for this observation. Reasons for any differences between unimpaired market value and sales price should be noted." 543 Response: EPA thanks the commenter for the information on appraisals and the assessment of market value. We remind the commenter that the statutory requirement is to consider the relationship between the purchase price and the value of the property, if the property were not contaminated. Although the Agency sees the value in conducting formal assessments and appreciates the commenter's concerns, EPA emphasizes that the purpose of the all appropriate inquiries investigation is not to attain an exact assessment of the financial value of the property, but to determine whether or not there are conditions at the property that are indicative of releases or threatened releases of hazardous substances. The results of a formal appraisal may be helpful for making this determination, but in many cases not essential.

EPA notes that the final rule does not dictate how the prospective property owner of grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice.

Commenter Organization Name: Tucker, Noble Comment Number: 0442 Excerpt Number: 1 Excerpt Text: Market value, or " fair market value," is one of the most understood and recognized legal and public policy terms in use today. I am not aware of a case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized". To the contrary, most federal agencies seek to promote the most accurate opinion of market value by a competent appraisal professional.

Similarly, to ensure the quality of compliance with public policy, all state governments regulate appraisers and a majority of states have adopted " mandatory appraiser licensing" requirements that require opinions of market value to be estimated by licensed or certified appraisers. In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession.

Because of this, I believe the proposed rule provides deficient appraisal methodology advice without adequately explaining the valuation process, which could come to haunt a property owner ( or EPA) in the future.

I support a minor clarification to the Preamble, Section III M paragraph 2 to help provide better direction to the public and prospective purchasers. Section III M of the Preamble should read as follows:

" The comparison of purchase price to Fair Market Value required to meet Section 312.29 of the Act may be accomplished in several ways. While the proposed rule does not require that a real 544 estate appraisal be conducted to achieve compliance with this criterion, the prospective purchaser should make the decision regarding scope of this study in light of a potential need to defend against liability as a prospective purchaser. An informal assessment of the property may be conducted using acceptable valuation methodology. The Prospective Purchaser must decide if the informal assessment is sustainable in a later action. But, it should be noted that in most transactions, a formal appraisal is being prepared for lending or other purposes. The intended use section of the appraisal can include its utilization for AAI compliance. Appraisals are prepared to meet the Uniform Standards of Appraisal Practice ( USPAP). USPAP requires that appraisers analyze the details of the current transaction. This analysis can and should include a study of the relationship of the price being paid to market value.

The objective is to determine whether or not the purchase price to be paid for the property is reflective of the environmental conditions present at the site. Significant differences between the Market Value of the property " as if unimpaired" and the purchase price provide a basis for this observation. Reasons for any differences between unimpaired market value and sales price should be noted."

Response: Please see response to comment number 0370, excerpt 2.

Commenter Organization Name: Emanuels, Dean Comment Number: 0447 Excerpt Number: 1 Excerpt Text: I am the Chief Appraiser of a regional bank and also in charge of Environmental Policy within the bank. Yesterday, I attended a meeting overviewing the new AAI standards put on by a leading environmental services company ( EDR) and it was unclear to the environmental site assessment professionals how they can even begin to comment on or address the issues of market value. They wanted to comply with AAI but had no idea where to start with this issue.

I don't have the answers but the EPA really needs to enlist the help of the Appraisal Foundation Members ( Appraisal Institute, ASA, ASFMRA). If an USPAP compliant appraisal is needed then great, appraisers are the best at providing that service.

AAI is extremely important, let's get it right the first time. Good Luck.

Response: The preamble to the proposed rule states, " The objective is not to ascertain the exact value of the property, but to determine whether or not the purchase price paid for the property is reflective of its market value" ( 69 FR at 52567). The preamble also notes that an appraisal is not required in this comparison. The Agency disagrees with the commenter as to the complicated nature of this comparison. In the preamble to the final rule, EPA states that if an appraisal is conducted for the property, the results of the appraisal may provide valuable information for the all appropriate inquiries investigation. The final rule does not dictate how the prospective property owner of 545 grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice.

Commenter Organization Name: Brinegar, Carl Comment Number: 0449 Excerpt Number: 2 Excerpt Text: Because of this, I believe the proposed rule provides deficient appraisal methodology advice without adequately explaining the valuation process, which could come back to haunt a property owner ( or EPA) in the future.

I support a minor clarification to the Preamble, Section III M paragraph 2 to help provide better direction to the public and prospective purchasers. Section III M of the Preamble should read as follows:

" The comparison of purchase price to Fair Market Value required to meet Section 312.29 of the Act may be accomplished in several ways. While the proposed rule does not require that a real estate appraisal be conducted to achieve compliance with this criterion, the prospective purchaser should make the decision regarding scope of this study in light of a potential need to defend against liability as a prospective purchaser. An informal assessment of the property may be conducted using acceptable valuation methodology. The Prospective Purchaser must decide if the informal assessment is sustainable in a later action. But, it should be noted that in most transactions, a formal appraisal is being prepared for lending or other purposes. The intended use section of the appraisal can include its utilization for AAI compliance. Appraisals are prepared to meet the Uniform Standards of Appraisal Practice ( USPAP). USPAP requires that appraisers analyze the details of the current transaction. This analysis can and should include a study of the relationship of the price being paid to market value.

The objective is to determine whether or not the purchase price to be paid for the property is reflective of the environmental conditions present at the site. Significant differences between the Market Value of the property " as if unimpaired" and the purchase price provide a basis for this observation. Reasons for any differences between unimpaired market value and sales price should be noted."

Response: Please see response to comment number 0370, excerpt 2.

Commenter Organization Name: Lisle, Dareyl Comment Number: 0450 Excerpt Number: 1 Excerpt Text: 546 As an appraiser and an environmental engineer and a real estate broker, and having been on the E 50 committee in the past I strongly urge you to reconsider the current proposal of a Congressional mandate for comparison of fair market value of the property to the purchase price as it was not sufficiently addressed by the Negotiated Rule Making Committee and in the proposed rule. This requirement of a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value can not work. The only persons educated on determining Market Value are appraisers period. Anyone else would be making an unsubstantiated opinion of value toward a property. The proposal that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis which is called a CMA or Comparative Market Analysis does not take into consideration two very valid appraisal methods The Replacement Cost Approach and the Income Approach. A real estate expert ( Real Estate Sales person or Broker) is not familiar with these methods and under the definition of Market Value all appropriate methods need to be utilized. I work in the commercial real estate arena doing sales, appraisals, P1,2,3 ESA's, and consulting and I have not met a " real estate expert" with the knowledge or the understanding of how to determine Market Value as accomplished by an appraiser to date. To consider, pick and compare a Real Estate Sales person or Brokers CMA to the actual sales price vs an appraisal of the same property to record the difference.

Real Estate Sales Persons and Brokers provide CMA and expertise with respects to sales, or purchase and leasing.

Environmental Specialist provide expertise in determining the environmental status of property.

Appraisers provide the expertise in determining Market Value or Fair market Value.

Do not convolute the definition of these professions and professionals. To do so will have long reaching consequences in the Real Estate and banking/ lending markets. I support a minor clarification to the Preamble, Section III M paragraph 2 to help provide better direction to the public and prospective purchasers. Section III M of the Preamble should read as follows:

" The comparison of purchase price to Fair Market Value required to meet Section 312.29 of the Act may be accomplished in several ways. While the proposed rule does not require that a real estate appraisal be conducted to achieve compliance with this criterion, the prospective purchaser should make the decision regarding scope of this study in light of a potential need to defend against liability as a prospective purchaser. An informal assessment of the property may be conducted using acceptable valuation methodology. The Prospective Purchaser must decide if the informal assessment is sustainable in a later action. But, it should be noted that in most transactions, a formal appraisal is being prepared for lending or other purposes. The intended use section of the appraisal can include its utilization for AAI compliance. Appraisals are prepared to meet the Uniform Standards of Appraisal Practice ( USPAP). USPAP requires that appraisers analyze the details of the current transaction. This analysis can and should include a study of the relationship of the price being paid to market value. 547 Case studies showing the diminution of value are typically done by appraisers or persons with appraisal knowledge. These should be made available to expert appraisers providing Market Value on properties having environmental conditions that have the potential to change the value of a property whether it be real or perceived.

Response: Please see response to comment number 0370, excerpt 2.

Commenter Organization Name: Sullivan, Timothy Comment Number: 0451 Excerpt Number: 2 Excerpt Text: I believe the proposed rule provides deficient appraisal methodology advice without adequately explaining the valuation process, which could come to haunt a property owner ( or EPA) in the future.

I support a minor clarification to the Preamble, Section III M paragraph 2 to help provide better direction to the public and prospective purchasers. Section III M of the Preamble should read as follows:

" The comparison of purchase price to Fair Market Value required to meet Section 312.29 of the Act may be accomplished in several ways. While the proposed rule does not require that a real estate appraisal be conducted to achieve compliance with this criterion, the prospective purchaser should make the decision regarding scope of this study in light of a potential need to defend against liability as a prospective purchaser. An informal assessment of the property may be conducted using acceptable valuation methodology. The Prospective Purchaser must decide if the informal assessment is sustainable in a later action. But, it should be noted that in most transactions, a formal appraisal is being prepared for lending or other purposes. The intended use section of the appraisal can include its utilization for AAI compliance. Appraisals are prepared to meet the Uniform Standards of Appraisal Practice ( USPAP). USPAP requires that appraisers analyze the details of the current transaction. This analysis can and should include a study of the relationship of the price being paid to market value.

The objective is to determine whether or not the purchase price to be paid for the property is reflective of the environmental conditions present at the site. Significant differences between the Market Value of the property " as if unimpaired" and the purchase price provide a basis for this observation. Reasons for any differences between unimpaired market value and sales price should be noted."

Response: Please see response to comment number 0370, excerpt 2. 548 3.8.3 The Agency Should Clarify the Definition of Fair Market Value Commenter Organization Name: Arnon Environmental & Geoscience, LLC Comment Number: 0227 Excerpt Number: 1 Excerpt Text: As the Environmental Professional must consider the Purchase Price vs. the Fair Market Value of a piece of real property, please clarify what EPA considers to be the definition of Fair Market Value. Would this be the same as the value of the real estate used for determining property taxes by the local assessor's office?

Response: Please see response to comment number 0058, excerpt 1. 549 3.8.4 The Rule Should Require a Commercial Appraisal by a Real Estate Expert/ Appraiser Commenter Organization Name: Appraisal Institute Comment Number: 0212 Excerpt Number: 1 Excerpt Text: We are concerned that the Congressional mandate for comparison of the fair market value of the property to the purchase price was not sufficiently addressed by the Negotiated Rulemaking Committee and in the proposed rule. If left unaddressed, we believe Section 312.29 will leave prospective purchasers ( and the EPA) in a precarious position, and that vagaries in the proposed rule will continue to dissuade the purchase of contaminated or potentially contaminated properties.

Environmental Litigation and Market Value Market value, or " fair market value," is one of the most understood and recognized legal and public policy terms in use today. Fair market value is defined and mandated to be used throughout federal law, our judicial system, interstate and international commerce and the financial services sector. Federal agencies utilizing market value in their regulations include: the Department of Transportation, Department of Interior, Department of Housing and Urban Development, General Services Administration and Office of Management and Budget as well as the five federal financial institution regulatory agencies.

We are not aware of any case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized." To the contrary, most federal agencies seek to promote the acquisition of the most accurate opinion of market value by using the services of a competent appraisal professional.

Similarly, to ensure the quality of compliance with public policy, all state governments regulate real estate appraisers and a majority of states have adopted " mandatory appraiser licensing" requirements that require opinions of market value to be estimated by licensed or certified appraisers ( see attachment for mandatory appraiser licensing states). In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession. It does not appear that the proposed rule has taken this into consideration, or else this would have been discussed in the proposed rule. As it is, the proposed rule may be advising prospective purchasers to violate appraiser licensing laws in mandatory appraiser licensing states.

Additionally, many of our members testify in environmental litigation regarding property market value before and after contamination in conjunction with other qualified environmental professionals, and their experiences tell us that opinions by professional appraisers of the market value of properties " affected" and " unaffected" by contamination are given strong weight. We believe it is unlikely that a competent attorney would prepare a defense for a client in federal 550 court utilizing the concepts in the proposed rule, which contradict the law itself.

To provide a sustainable defense, a proper baseline must be established. This baseline is market value. Market value is established through the appraisal process. Unfortunately, the procedures outlined in Section III, M, Paragraph 2, fall short of providing a sustainable baseline ( market value).

Response: Please see responses to comment numbers 0212 ( excerpt 3), 0058 ( excerpt 1), and 0234 ( excerpt 3).

Commenter Organization Name: Harris, M Comment Number: 0236 Excerpt Number: 1 Excerpt Text: In the last two years of working with appraisals after my college graduation, I believe appraisals and phase I offer beneficial viewpoints that are both equally valuable. Commercial appraisals should be viewed as valuations as if the property was not contaminated. Appraisers are experts in real estate functionality, not educated environmentalists. Personally, I am intent on becoming an " environmental appraiser" that speaks the lingo to environmental toxicology and commercial appraisals. This is a rare breed. Commercial appraisals of brownfields and such should be only reviewed by those educated in both fields of research. Ultimately, the sale of the property will determine the amount of damage caused by the stigma associated with environmental clean up costs. Appraisers are certainly needed for their financial concerns, as well as Planners. The severity of the contamination and actual size of the acreage should determine the amount money spent to estimate the value  as well as the " foreseen value" that can be used by local city planners. A holistic approach would be most beneficial in these reclamation of brownfields  although it will take more time and red tape, the empirical need to determine the economic feasibility for a private business to rebuild a contaminated site should be the appraised value on the appraisal. JUST as wetlands delineations are sub contracted out in many environmental reports, an approach to value which includes cost estimates and Phase I should be added and reconciled in the commercial appraisal. That should be required. From my vantage point, most commercial appraisals lack sufficient environmental analysis but provide very accurate approaches to probable market value as seen by real estate experts.

Response: At the onset of this response we note from the preamble of the proposed rule that " § 312.29 would require that the purchaser of the property consider whether or not the purchase price paid for the property reflects the fair market value of the property, assuming that the property is not contaminated" ( 69 FR 52567).

The comparison is made between the purchase price and the fair market value of the property, assuming that the property is not contaminated. This means that the comparison can take place at any time, and does not require any amount of contamination to be detected. The purpose of 551 this comparison is to look at the difference between the price and market value as an indicator of possible contamination. If the prices are significantly different, this should indicate to the purchaser or grantee that additional inquiry should be done if liability protection is desired.

Commenter Organization Name: Kane Environmental Comment Number: 0317 Excerpt Number: 5 Other Sections: NEW  3.8.1  The EP should not be required to consider the relationship of the purchase price to the value of the property Excerpt Text: Section 312.29 needs to be completely eliminated. Trained and licensed appraisers should be the only ones to provide property market value analysis Response: The preamble to the proposed rule states, " The objective is not to ascertain the exact value of the property, but to determine whether or not the purchase price paid for the property is reflective of its market value" ( 69 FR at 52567). The preamble also notes that an appraisal is not required in this comparison. The Agency disagrees with the commenter as to the complicated nature of this comparison. In the preamble to the final rule, EPA states that if an appraisal is conducted for the property, the results of the appraisal may provide valuable information for the all appropriate inquiries investigation. The final rule does not dictate how the prospective property owner or grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice.

Commenter Organization Name: Fewel, Chris Comment Number: 0370 Excerpt Number: 1 Excerpt Text: Congress required that a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value. Yet EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

Market value, or " fair market value," is one of the most understood and recognized legal and public policy terms in use today. I am not aware of a case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized". To the contrary, most federal agencies seek to promote the most accurate opinion of market value by a competent appraisal professional.

Similarly, to ensure the quality of compliance with public policy, all state governments regulate 552 appraisers and a majority of states have adopted " mandatory appraiser licensing" requirements that require opinions of market value to be estimated by licensed or certified appraisers. In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession.

Response: Please see responses to comment numbers 0212 ( excerpt 3), 0058 ( excerpt 1), and 0234 ( excerpt 3).

Commenter Organization Name: RT Environmental Services Comment Number: 0406 Excerpt Number: 4 Excerpt Text: In addition, it should be noted that environmental site assessors are not trained to be property appraisers, and separate qualifications should be established for such appraisers. In general, appraisals should be an attachment to an environmental site assessment report, and not part of it, because the appraisals will virtually always be prepared by a separate professional.

Response: Section 101( 35)( B)( iii)( VIII) requires that the relationship of the purchase price to the value of the property , if the property was not contaminated be included in all appropriate inquiries federal regulations. The final regulations includes this requirement within the responsibilities for the prospective landowner or grantee ( see § 312.22 and § 312.29). This activity does not have to be conducted by the environmental professional. A prospective landowner or grantee may hire the services of a licensed appraiser if he or she determines that such expertise is necessary to fulfill the requirement.

EPA reminds the commenter that the statutory requirement is to consider the relationship between the purchase price and the value of the property, if the property were not contaminated. Although the Agency sees the value in conducting formal assessments and appreciates the commenter's concerns, EPA emphasizes that the purpose of the all appropriate inquiries investigation is not to attain an exact assessment of the financial value of the property, but to determine whether or not there are conditions at the property that are indicative of releases or threatened releases of hazardous substances. The results of a formal appraisal may be helpful for making this determination, but in many cases not essential.

EPA notes that the final rule does not dictate how the prospective property owner or grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice. 553 Commenter Organization Name: Wohlers Environ Svcs Comment Number: 0435 Excerpt Number: 3 Excerpt Text: Regardless of the answer to the above question, does the EPA expect that the AAI report ( i. e., the Phase I Environmental Site Assessment) should include information regarding comparison of the purchase price of the property to the value of the property? Based on our experience, real estate appraisal experts with the required knowledge and training for real estate valuation opinions are more appropriate for this task than the EP.

Response: Section 101( 35)( B)( iii)( VIII) requires that the relationship of the purchase price to the value of the property , if the property was not contaminated be included in all appropriate inquiries federal regulations. The final regulations includes this requirement within the responsibilities for the prospective landowner or grantee ( see § 312.22 and § 312.29). This activity does not have to be conducted by the environmental professional and the information collected in carrying out the activity does not have to be provided to the environmental professional if the prospective property owner or grantee does not wish to disclose the information. Documentation of reasons for discrepancies between the purchase price and the value of the property should be noted in the written report.

Commenter Organization Name: Wilson, Shawn Comment Number: 0440 Excerpt Number: 2 Excerpt Text: Do not be tempted to complete real estate transactions involving public money without thorough, substantive, real estate appraisals. We really don't need an " EPA Bailout Bill" in the future to go along with the " S& L Bailout Bill."

Just as with land surveys, environmental assessments, and other components of most real estate transactions: YOU NEED A REAL APPRAISAL BY A REALL APPRAISER TO MAKE SURE THAT THE MONEY IS BEING SPENT CORRECTLY.

Kindly do not adapt rules which circumvent this process of checks and balances.

Response: The Agency is fully aware that appraisals in real estate deals are very valuable in several regards. EPA takes no position for or against appraisals for the land and thus the use of such appraisals should not change. The Agency's position is merely that for the purposes of completing an all appropriate inquiry a formal appraisal is not required. EPA is aware of the benefits of appraisals and believes that they will be used to complete some all appropriate inquiries, at the discretion of the prospective landowner or grantee.

EPA reminds the commenter that the statutory requirement is to consider the relationship 554 between the purchase price and the value of the property, if the property were not contaminated. Although the Agency sees the value in conducting formal assessments and appreciates the commenter's concerns, EPA emphasizes that the purpose of the all appropriate inquiries investigation is not to attain an exact assessment of the financial value of the property, but to determine whether or not there are conditions at the property that are indicative of releases or threatened releases of hazardous substances. The results of a formal appraisal may be helpful for making this determination, but in many cases not essential.

EPA notes that the final rule does not dictate how the prospective property owner or grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice.

Commenter Organization Name: Swanson, Eric Comment Number: 0441 Excerpt Number: 1 Excerpt Text: I am concerned that the Congressional mandate for comparison of fair market value of the property to the purchase price was not sufficiently addressed by the Negotiated Rule Making Committee and in the proposed rule.

Congress required that a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value. Yet EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

Response: EPA believes that the proposed rule effectuates congressional intent. EPA reminds the commenter that the statutory requirement is to consider the relationship between the purchase price and the value of the property, if the property were not contaminated. Although the Agency sees the value in conducting formal assessments and appreciates the commenter's concerns, EPA emphasizes that the purpose of the all appropriate inquiries investigation is not to attain an exact assessment of the financial value of the property, but to determine whether or not there are conditions at the property that are indicative of releases or threatened releases of hazardous substances. The results of a formal appraisal may be helpful for making this determination, but in many cases not essential.

EPA notes that the final rule does not dictate how the prospective property owner or grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice. 555 Commenter Organization Name: Swanson, Eric Comment Number: 0441 Excerpt Number: 2 Excerpt Text: Just who in the hell would you hire as a " real estate expert" that would work for less than what I make as an appraiser?

As an appraiser, I know first hand how difficult it is to accurately determine market value of a property when all factors are carefully analyzed. The mere suggestion that you could achieve the same result without doing the required analysis is, frankly, idiotic.

I recognize the motivation behind this move, and I've seen the same cut throat corner cutting in the mortgage industry many times. Every time it's allowed to slip into practice, it blows up in somebody's face. The people responsible for the debacle are rarely held accountable. I will see to it that changes this time.

THERE ARE NO SHORTCUTS TO QUALITY! MY ONLY CONCLUSION FROM YOUR INITIATIVE IS THAT QUALITY IS NOT IMPORTANT TO YOU.

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1).

Commenter Organization Name: Tucker, Noble Comment Number: 0442 Excerpt Number: 2 Excerpt Text: As an appraiser of numerous petroleum related properties, service stations, car washes, lube centers, and automotive repair facilities I feel that this rule is another example of governmental oversight and lack of knowledge regarding the appraisal profession. I am far more competent to render an opinion of value on properties of this nature than a " competent real estate expert" As appraisers we are bound by requirements by our state, USPAP, and The Appraisal Institute. The federal government, other governmental agencies, states, appraisers, and their organizations have spent millions and millions of dollars trying to take the confusion out of appraising by creating the UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE and now some governmental agency wants to change the rules. This will cause unfair valuations to the owners of these properties.

Many of these properties, especially service stations, have first rights of refusals in the lease contracts. The station dealer needs a fair unbiased opinion of value in order to logically determine whether or not to exercise these options. By enabling an " All Appropriate Inquiry ( AAI) as a comparison of the property's sales price to its Fair Market Value this congressional mandate will cause harm to the dealers and put more control in the hands of the large corporations who already have " oligolopistic" and nearly " monopolisitic" characteristics. 556 Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1).

Commenter Organization Name: Husij, Michael Comment Number: 0445 Excerpt Number: 1 Excerpt Text: If the purpose is " to determine whether or not the purchase price for the property is reflective of market value", then a complete appraisal is required. A simple " comparative analysis" is incomplete and could be misleading.

Response: As the preamble states, " The objective is not to ascertain the exact value of the property, but to determine whether or not the purchase price paid for the property is reflective of its market value" 69 FR at 52567. An appraisal may be useful in some circumstances, but need not be used in every circumstance.

EPA reminds the commenter that the statutory requirement is to consider the relationship between the purchase price and the value of the property, if the property were not contaminated. Although the Agency sees the value in conducting formal assessments and appreciates the commenter's concerns, EPA emphasizes that the purpose of the all appropriate inquiries investigation is not to attain an exact assessment of the financial value of the property, but to determine whether or not there are conditions at the property that are indicative of releases or threatened releases of hazardous substances. The results of a formal appraisal may be helpful for making this determination, but in many cases not essential.

EPA notes that the final rule does not dictate how the prospective property owner or grantee must undertake this analysis. This type of comparison has been included in the statutory provisions governing all appropriate inquiries since the 1986 SARA amendments to CERCLA. Today's final rule does nothing to alter the original statutory requirement and represents no change from current practice.

Commenter Organization Name: Johnson, Noel Comment Number: 0446 Excerpt Number: 1 Excerpt Text: The EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

The valuation of such properties as those delt with in these cases are tremendously complex. Doing away with the requirement to have a properly trained and experienced consultant value a 557 parcel in favor of a what is proposed brings the real estate industry into dangerous situation. Please reconsider this aspect of the proposed rule.

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1).

Commenter Organization Name: Brinegar, Carl Comment Number: 0449 Excerpt Number: 1 Excerpt Text: I do not believe that the congressional mandate for comparison of fair market value of the property to the purchase price was sufficiently addressed by the Negotiated Rule Making Committee and in the proposed rule.

Congress required that a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value. Yet EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

Market value, or " fair market value," is one of the most understood and recognized legal and public policy terms in use today. I am not aware of a case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized". To the contrary, most federal agencies seek to promote the most accurate opinion of market value by a trained, independent, competent real estate appraiser.

Similarly, to ensure the quality of compliance with public policy, all state governments regulate appraisers and a majority of states, including Texas, have adopted " mandatory appraiser licensing" requirements that require opinions of market value to be estimated by state licensed or certified appraisers. In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession.

For example, I am a Texas Certified Real Estate Appraiser with over 39 years of experience, including a substantial amount of experience as a professional witness in courts of law. By personal experience, I am an expert on the serious errors that are made by untrained individuals relying on raw data or on the use of untrained " Experts" in real estate transactions, and the losses suffered as a consequence of those errors.

First, the use of raw data from the market, with no or limited knowledge of its origin and proper use by one with no or limited knowledge of good research and appraisal techniques, and/ or by one who is not trained to understand and maintain independence from the transaction, is dangerous to all involved and can lead to significant losses. 558 Second, in my experience " Real Estate Experts" that have not been required by any agency or ruling authority to acquire or demonstrate knowledge and expertise in real estate " Comparability Analysis", often have scarcely enough training or knowledge to be anything but dangerous to themselves and those they represent. This is the stuff of which lawsuits are made.

Finally, who is a better qualified as a " Real Estate Expert" than a trained, qualified, independent, certified or licensed real estate appraiser that has proven his or her expertise and competence to state licensing authorities?

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1).

Commenter Organization Name: Sullivan, Timothy Comment Number: 0451 Excerpt Number: 1 Excerpt Text: I am concerned that the Congressional mandate for comparison of fair market value of the property to the purchase price was not sufficiently addressed by the Negotiated Rule Making Committee and in the proposed rule.

Congress required that a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value. Yet EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

Market value, or " fair market value" is one of the most understood and recognized legal and public policy terms in use today. I am not aware of a case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized". To the contrary, most federal agencies seek to promote the most accurate opinion of market value by a competent appraisal professional.

You go to great lengths to define who is competent in other areas, but fail to define the appraiser as the recognized professional in estimating market value.

As with engineering, to ensure the quality of compliance with public policy, all state governments regulate appraisers and a majority of states have adopted " mandatory appraiser licensing" requirements that require opinions of market value to be estimated by licensed or certified appraisers. In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession.

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1). 559 Commenter Organization Name: Moss, JR Comment Number: 0452 Excerpt Number: 1 Excerpt Text: Congress required that a component of All Appropriate Inquiry ( AAI) be a comparison of the property's sales price to its Fair Market Value. Yet EPA's proposed regulations state that an appraisal need not be utilized and that the market value can be estimated by comparison of similar nearby sales or by consulting a real estate expert familiar with properties in the general locality who may provide a comparability analysis.

Market value, or " fair market value," is one of the most understood and recognized legal and public policy terms in use today. I am not aware of a case where a federal agency requires the consideration of market value yet states in its regulations that " an appraisal need not be utilized". To the contrary, most federal agencies seek to promote the most accurate opinion of market value by a competent appraisal professional.

Similarly, to ensure the quality of compliance with public policy, all state governments regulate appraisers and a majority of states have adopted ômandatory appraiser licensingö requirements that require opinions of market value to be estimated by licensed or certified appraisers. In these states, all opinions of market value must be performed by a licensed or certified appraiser and in compliance with the Uniform Standards of Professional Appraisal Practice ( USPAP), the accepted standards of the appraisal profession.

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1).

Commenter Organization Name: Moss, JR Comment Number: 0452 Excerpt Number: 2 Excerpt Text: The Market will still determine the value of the property. How does on determine the market value with a knowledge of the market place where the property is located. How do you tell if a refurbished house was once a meth lab. There is work to be done for any property to determined market value and appraisers who do their home work most often know how to do this.

Response: At the onset of this response we note from the preamble of the proposed rule that " § 312.29 would require that the purchaser of the property consider whether or not the purchase price paid for the property reflects the fair market value of the property, assuming that the property is not contaminated" ( 69 FR 52567).

The comparison is made between the purchase price and the fair market value of the property, assuming that the property is not contaminated. This means that the comparison can take place 560 at any time, and does not require any amount of contamination to be detected. The purpose of this comparison is to look at the difference between the price and market value as an indicator of possible contamination. If the prices are significantly different, this should indicate to the purchaser or grantee that additional inquiry should be done if liability protection is desired.

Also, please see response to comment number 0440, excerpt 2.

Commenter Organization Name: Shaw, James Comment Number: 0453 Excerpt Number: 1 Excerpt Text: In these times, low ethical business practices are rampant and an unbiased opinion as rendered by a professional appraisal is more crucial than ever.

Response: Please see responses to comment 0440 ( excerpt 2) and comment 0441 ( excerpt 1). 561 3.9 Considering Commonly Known or Reasonably Ascertainable Information about the Property Commenter Organization Name: Koch, Donald Comment Number: 0234 Excerpt Number: 1 Other Sections: NEW  3.4  Recorded environmental cleanup liens searches NEW  3.7  Inclusion of specialized knowledge or experience NEW  3.8  Considering the relationship of the purchase price to the value of the property Excerpt Text: I would like to comment on proposed 40 CFR 312.22. 40 CFR 312.21 defines the results of an inquiry by an environmental professional. 40 CFR 312.22 defines four additional requirements of an all appropriate inquiry and requires that this information must be provided to the environmental professional responsible for the inquiry. The mandatory provision of these criteria is inappropriate. The four criteria of an all appropriate inquiry mentioned in proposed 40 CFR 312.22 do not require the judgement of an environmental professional to interpret.

I recommend the following change in 40 CFR 312.22. 312.11 Additional Inquiries ( a) Persons identified under 312.1( b) may provide the following information to the environmental responsible for conducting the activities listed in 312.21.

Response: The Agency agrees with the commenter. The final rule does not require the prospective landowner or grantee to provide the results of inquiries for which he or she is responsible to the environmental professional.

Commenter Organization Name: Koch, Donald Comment Number: 0234 Excerpt Number: 4 Excerpt Text: The requirement of proposed 312.22 ( a)( 4), providing " commonly known or reasonably ascertainable information about the subject property" is implicit in the " all appropriate inquiries" rule. The regulations require the environmental professional to use their judgement. Clearly, the consideration of commonly known or reasonably ascertainable information about the subject property is well within the requirements of proposed 312.21. This requirement, while mandated by the statute, has no practical impact on the report generated by an environmental professional. 562 Response: The Agency agrees with the commenter. The final rule does not require the prospective landowner or grantee to provide the results of inquiries for which he or she is responsible to the environmental professional.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 14 Excerpt Text: Requirements for Commonly Known or Reasonably Ascertainable Information. I agree that this is an area to be included but my experience is that it depends on whom one interviews, even within, for example, a city planning department. Asking a counter clerk about a property is not the same as asking a senior planner. A public works official may be familiar with a property but a planner may not.

Response: Commonly known or reasonably ascertainable information about a property may be ascertained from the owner or occupant of a property, members of the local community, including owners or occupants of neighboring properties to the subject property, local or state government officials, local media sources, and local libraries and historical societies. In many cases, this information may be incidental to other information collected during the inquiries, and separate or distinct efforts to collect the information may not be necessary The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources, based upon the professional judgment of the environmental professional and the prospective landowner or grantee, and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 21 563 Excerpt Text: 312.21( b): change "( commonly known or reasonably attainable ") to "( commonly known and reasonably attainable ").

Response: In the final rule, EPA retains the statutory language for the criterion.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 10 Excerpt Text:  ii. Proposed § 312.30 " Commonly Known or Reasonably Ascertainable Information About the Property" imposes extraordinarily open ended search requirements on developers and invites courtroom second guessing.

Proposed § 312.30 requires that "[ t] hroughout the inquiries," purchasers " must take into account commonly known or reasonably ascertainable information within the local community about the subject property." Sources of commonly known information are defined to include unenumerated " others" with knowledge of the property, unspecified " other" sources of information, as well as websites, local libraries, and newspapers. The requirement appears to make the purchaser responsible for any information about the property that might exist anywhere in the community. Although generally qualified by constraints such as reasonable time and cost, who is to say that one more phone call to the local librarian shouldn't have been made? In short, it is an open invitation to courtroom second guessing.

The committee may have believed that this section assigning liability to the purchaser for commonly known information is required by the Brownfields Revitalization Act, which does include the statutory criteria " commonly known or reasonably ascertainable information." 42 U. S. C. § 9601( B)( iii)( IX). However, like the " relationship of purchase price" element discussed above, this element of All Appropriate Inquiry remains unchanged since 1986 and to the extent that EPA may believe that it is a statutorily required element of future All Appropriate Inquiries, it is already directly addressed by ASTM E1527. ASTM E1527 properly limits " reasonably ascertainable" records to " standard sources." ASTM E1527 00 § 7.1.4. There is no open ended catchall requirement to scour the community. For example, the historical use inquiry ends with the enumerated standard historical sources: " Whatever history of previous uses is derived from checking the standard historical sources specified [ herein]. . . shall be deemed sufficient historical use information to comply with this practice." ASTM E1527 00 § <IP_ADDRESS>. Moreover, ASTM E1527 explicitly relieves purchasers of the responsibility to consult " other historical sources," such as newspaper archives and other miscellaneous sources. ASTM E1527 § <IP_ADDRESS>.

We hope you will reconsider, and decide, in light of the information presented here that this section of the new rule should be deleted. 564 Response: The final rule retains the proposed provisions requiring that prospective landowners and environmental professionals consider commonly known or reasonably ascertainable information about a property when conducting all appropriate inquiries. This provision has been part of the all appropriate inquiries requirements under CERCLA since the 1986 SARA amendments. The final rule points out that this information may not have to be collected independently if such information is gathered during the course of conducting the other information collection activities included in the rule and collected in compliance with the objectives and performance factors. The requirement is not so much " open ended" as it is a condition to not miss or ignore the obvious information or easily attained information that may be well known throughout a community in which a property is located.

Commonly known or reasonably ascertainable information be ascertained from the owner or occupant of a property, members of the local community, including owners or occupants of neighboring properties to the subject property, local or state government officials, local media sources, and local libraries and historical societies. In many cases, this information may be incidental to other information collected during the inquiries, and separate or distinct efforts to collect the information may not be necessary. Information about a property, including its ownership and uses, that is commonly known or reasonably attainable within the community or neighborhood in which a property is located may be valuable to identifying conditions indicative of releases or threatened releases at the subject property. Such information, if not collected during the course of collecting other information necessary to complete the all appropriate inquiries investigation, may be obtained by interviewing community officials and other residents of the locality. For example, neighboring property owners and local community members may have information regarding undocumented uses of a property during periods when the property was idle or abandoned. Local community sources may be good ( i. e., reasonably attainable) sources of commonly known information on uses of a property and activities conducted at a property, particularly in the case of abandoned properties.

The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records). 565 Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 10 Excerpt Text: Proposed requirement for Commonly Known or Reasonably Ascertainable Information.

a) Page # 52580 b) View: This proposal is supported, and should be included into the AAI Phase I performance standards. Information that may be commonly known to individuals about the property ( current and former owners, employees, and/ or local government officials), may not be commonly know to others. Specifically this information may not be available through a standard government records review, site inspection and historical research. The Interview Process should include questioning such individuals of Commonly Known or Reasonably Ascertainable Information.

c) Assumption: Certain property conditions from past operations and use of the site or surrounding area may be relevant to persons and government officials familiar with the site/ area that may not be obvious to the EP unless the follow up on all commonly known or reasonably ascertainable information. Too often the consultant tries to gain pertinent information only once, does not get an answer; therefore, it is excluded from the report.

d) Burden: The EP may have to follow up more than once with persons that may have the relevant information, which may take longer than expected.

Response: Please see response to comment number 0354, excerpt 10.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 13 Other Sections: NEW  3.7  Inclusion of specialized knowledge or experience NEW  3.10  Considering the degree of obviousness of the presence or likely presence of contamination at the property Excerpt Text: § 312.28, § 312.30 and § 312,31, the term " person"

Please consider including the need to define the term " Persons" in § 312.1 ( b)( 1), should be further defined, either in the preamble or in § 312.10 Definitions. Under § 312.28, § 312.30 and § 312,31, the term " person" should not include every individual in a firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, Tribe, municipality, commission, political subdivision of a State, or any interstate body, but should be limited to those persons directly involved with conducting the AAI for the purpose of § 312.28, § 312.30 and § 312.31. For example, specialized knowledge or 566 experience cannot mean the specialized knowledge or experience of every employee in a corporation of 25,000 employees. Clarifying language and instructive examples in the preamble will ensure that the applicability of these sections is practical.

Response: The term " person" is defined in Section 101( 21) of CERCLA. " Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body. Since firms, corporations, associations, partnerships, etc. may purchase potentially contaminated property and may want to attain protection from CERCLA liability, as provided under the statute, EPA is uncertain why the commenter is suggesting that the term person be limited or changed from its common legal definition and the definition provided under the CERCLA statute.

Commenter Organization Name: Small, Arthur Comment Number: 0424 Excerpt Number: 2 Other Sections: NEW  4  Comments on the Economic Impact Analysis Excerpt Text: It is through this prism that we should examine the proposed section 312.30. This section requires, as a qualifying condition for the innocent landowner defense, that a prospective buyer investigate " Commonly Known or Reasonably Ascertainable Information About the Property." In particular, it is through this prism that we should examine the open ended search requirements embodied in the new standard. As has been noted elsewhere, these new open ended search requirements effectively compel potential buyers to search through a potentially large and openended set of possible information sources. These include unnamed " other" persons and unenumerated " other" sources.

Should these standards in fact be open ended?

First I wish to clarify a conceptual point: the decision to include an open ended search requirement should be judged on the basis of marginal costs and marginal benefits. The key questions here concern a calculation at the margin. How much additional environmental or economic benefits accrue to society ( if any) by virtue of making the standard open ended, as opposed to a closed ended standard? What are the likely additional economic and environmental costs ( if any) along this margin? Is this marginal increase in search requirements justified by benefits that can reasonably be anticipated?

In this vein I wish to take issue with some of the findings of the cost benefit analysis performed by ICF Consulting. One of the authors' principle findings is an estimate that the new AAI regulations will increase the transaction costs of real estate sales by some $ 41 47 per transaction. This figure is associated with higher costs of Phase I site assessment and document search. ICF's figure may in fact be correct ( although I do have quibbles with their data collection protocols [ Footnote: It raises at least one eyebrow that ICF bases this estimate on an internal survey of its 567 own staff. By contrast, EDR reports an estimated increase closer to $ 200 per transaction, based on a survey of over 500 environmental professionals from multiple firms who attended conferences in nine cities earlier this year. See Environmental Site Assessment Report by EDR Business Information Services, July 2004.].). But is this the right question?

I believe it is not  or at least, it is not the central question. The most important effect of making these standards open ended is probably not how they increase the costs of those transactions that eventually go through. The more important effect of the new standards concerns the possibility that they may discourage some otherwise viable transactions from being undertaken at all. Transactions may be discouraged not so much because of the small increase in transaction costs, but because of the potentially large increase in residual liability.

As experts on the subject of brownfields, I expect you don't need to be convinced that openended liabilities have been shown to have real and negative impacts on incentives to undertake projects.

Response: The final rule retains the proposed provisions requiring that prospective landowners and environmental professionals consider commonly known or reasonably ascertainable information about a property when conducting all appropriate inquiries. This provision has been part of the all appropriate inquiries requirements under CERCLA since the 1986 SARA amendments. The final rule does not change this provision. The final rule does point out that this information may not have to be collected independently if such information is gathered during the course of conducting the other information collection activities included in the rule and collected in compliance with the objectives and performance factors. The requirement is not so much " open ended" as it is a condition to not miss or ignore the obvious information or easily attained information that may be well known throughout a community in which a property is located.

Commonly known or reasonably ascertainable information be ascertained from the owner or occupant of a property, members of the local community, including owners or occupants of neighboring properties to the subject property, local or state government officials, local media sources, and local libraries and historical societies. In many cases, this information may be incidental to other information collected during the inquiries, and separate or distinct efforts to collect the information may not be necessary. Information about a property, including its ownership and uses, that is commonly known or reasonably attainable within the community or neighborhood in which a property is located may be valuable to identifying conditions indicative of releases or threatened releases at the subject property. Such information, if not collected during the course of collecting other information necessary to complete the all appropriate inquiries investigation, may be obtained by interviewing community officials and other residents of the locality. For example, neighboring property owners and local community members may have information regarding undocumented uses of a property during periods when the property was idle or abandoned. Local community sources may be good ( i. e., reasonably attainable) sources of commonly known information on uses of a property and activities conducted at a property, particularly in the case of abandoned properties. 568 The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records). 569 3.9.1 Commonly Known or Reasonably Ascertainable Information Should Not Be Limited to Information Available in the Local Community Commenter Organization Name: Tweedale, Tony Comment Number: 0045 Excerpt Number: 1 Excerpt Text: Proposed 40 CFR Sec. 312.30, Requirements to determine Commnly Known or Reasonably Ascertainable Information. Why limit this requirement to locally available information ( eg the preamble says that this information is usually available in the local community. In fact many real estate transactions are between far flung national or international parties; who may have " commonly known/ ascertainable information" about contamination at the property being transacted.

Response: The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records). 570 3.9.2 The Agency Should Provide Additional Guidance Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 15 Other Sections: NEW  3.10  Considering the degree of obviousness of the presence or likely presence of contamination at the property Excerpt Text: The proposed requirement for commonly known or reasonably ascertainable information about the property.

The proposed requirement for the degree of obviousness or the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.

These items, as pointed out, are carryovers from prior legislation. They have historically been at the core of the ASTM practice that has become standard commercial practice. In the AAI there is not sufficient detail to implement the guidance. Making reference to the appropriate ASTM document easily solves this.

Response: EPA provides some guidance on the collection of this information in the preamble to the final rule. The ASTM E1527 2000 standard may provide additional guidance. Also, case law may provide guidance given that the Courts hold the ultimate responsibility for interpreting the statutory requirements.

The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Regarding the requirement to include within the all appropriate inquiries the degree of obviousness or the presence or likely presence of contamination at the property, and the ability to 571 detect the contamination by appropriate investigation, persons conducting all appropriate inquiries, following the collection of all required information, must assess whether or not an obvious conclusion may be drawn that there are conditions indicative of a release or threatened release of hazardous substances ( or other pollutants, contaminants, petroleum or petroleum products, and controlled substances) on, at, in, or to the property. In addition, the rule requires parties to consider whether or not the totality of information collected prior to acquiring the property indicates that the parties should be able to detect a release or threatened release on, at, in, or to the property. The final rule also retains the proposed requirement that the environmental professional include as part of the results of his or her inquiry an opinion regarding additional appropriate investigation, if any may be necessary.

We interpret the statutory criterion to require consideration of information already obtained during the conduct of all appropriate inquiries investigation and not as a requirement to collect additional information. We do not agree with commenters who asserted that the criterion is open ended. In fact, we see this criterion as providing direction on how all of the information collected while carrying out the other criteria and regulatory requirements must be viewed comprehensively. After collecting and considering all the information required to comply with the rule's objectives and performance standards, all the information should be considered in total to determine whether or not there are indications of releases or threatened releases of hazardous substances on, at, in, or to the property. In addition, the environmental professional should provide an opinion regarding whether or not additional investigation is necessary to detect potential contamination at the site, if in his or her opinion there are conditions indicative of releases or threatened releases of hazardous substances.

The previous innocent landowner defense ( added to CERCLA in 1986) required a court to consider the degree of obviousness of the presence or likely presence of contamination at a property, and the ability of the defendant ( i. e., the landowner) to detect the contamination by appropriate investigation. Nothing in today's rule changes the nature or intent of this requirement as it has existed in the statute since 1986. Case law relevant to this criterion indicates that defendants may not be able to claim an innocent landowner defense if a preponderance of evidence available to a prospective landowner prior to acquiring the property indicates that the defendant should have concluded that there is a high likelihood of contamination at the site.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 20 Other Sections: NEW  4.1  The impact of the rule is underestimated Excerpt Text: Section 312.30, Commonly Known or Reasonably Ascertainable Information about the Property, is not workable in its current form. The implication to interview owners and occupants of adjoining property poses the same confidentiality and security law issues as mentioned previously about interviewing past owners, occupants, etc. The suggestion that the EP should review or consult " Others with knowledge of the subject property; and other sources of 572 information [ e. g., newspapers, websites, community organizations, local libraries, and historical societies]" is too vague in the absence of some further guidance. ASTM Committee E 50 addressed this with practically reviewable and likely to be useful limitations. The sources cited in the example cannot be reviewed on the property by property basis. For example, does the EPA contemplate microfilms of newspapers be searched back to the beginning of the collection for each property having some form of a data gap? The Economic Impact Analysis suggests no further costs will be incurred by the proposed AAI rules than with E 1527 00. Thus, the Analysis is clearly not consistent with the Proposed Rules and, therefore, understates the impact of the Proposed Rules. R& W requests that the EPA reform the Proposed Rules to include specific limitations similar to E 1527 00.

Response: The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 24 Excerpt Text: COMMONLY KNOWN OR REASONABLY ASCERTAINABLE INFORMATION 1) Please provide more examples of the types of information included in the " commonly known or reasonably ascertainable" requirement, and how to obtain this information.

Response: The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding 573 the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 5 Excerpt Text: For clarification, it is recommended that the Agency define in § 312.10 the terms " publicly available" and " reasonable time and cost constraints" as referenced in § 312.20( e)( 1) and the terms " commonly known" and " reasonably ascertainable" as referenced in § 312.30. It would be beneficial to the regulated community to have these terms defined in the regulation to be readily available after the rule is finalized.

Response: The final rule retains the proposed provisions requiring that prospective landowners and environmental professionals consider commonly known or reasonably ascertainable information about a property when conducting all appropriate inquiries. This provision has been part of the all appropriate inquiries requirements under CERCLA since the 1986 SARA amendments. The final rule does not change this provision. The final rule does point out that this information may not have to be collected independently if such information is gathered during the course of conducting the other information collection activities included in the rule and collected in compliance with the objectives and performance factors. The requirement is not so much " open ended" as it is a condition to not miss or ignore the obvious information or easily attained information that may be well known throughout a community in which a property is located. EPA is comfortable with the terms taking on their plain English definitions and does not believe that further defining the terms in the regulations will add meaningful guidance.

Commonly known or reasonably ascertainable information may be ascertained from the owner or occupant of a property, members of the local community, including owners or occupants of neighboring properties to the subject property, local or state government officials, local media sources, and local libraries and historical societies. In many cases, this information may be incidental to other information collected during the inquiries, and separate or distinct efforts to collect the information may not be necessary. Information about a property, including its ownership and uses, that is commonly known or reasonably attainable within the community or neighborhood in which a property is located may be valuable to identifying conditions indicative of releases or threatened releases at the subject property. Such information, if not collected during the course of collecting other information necessary to complete the all appropriate 574 inquiries investigation, may be obtained by interviewing community officials and other residents of the locality. For example, neighboring property owners and local community members may have information regarding undocumented uses of a property during periods when the property was idle or abandoned. Local community sources may be good ( i. e., reasonably attainable) sources of commonly known information on uses of a property and activities conducted at a property, particularly in the case of abandoned properties.

The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 18 Excerpt Text:  The proposed requirements for commonly known or reasonably ascertainable information about the property.

 While Intertox supports the use of commonly known and reasonably ascertainable information, they are not one and the same and we suggest a more reasonable definition be included in the final regulation. Indeed, the phrase " commonly known" can be construed to mean anecdotal rather than documented information. Also, reasonably obtainable information is different from commonly known information, meaning, that which is reasonably obtainable refers to the ability to obtain information easily, not its value or content.

Response: Please see response to comment number 0373, excerpt 5.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 8 575 Excerpt Text: Proposed Rule § 312.30 ( a b) includes a " catch all" category that requires both the EP and the User to consider commonly known or reasonably ascertainable information about the property, as well as the degree of obviousness of the presence or likely presence of contamination. Proposed Rule § 312.30( c) requires that, if any concerns fall into this category, then the User and/ or EP must gather additional information " to the extent necessary" to satisfy the performance objectives by interviewing neighboring property owners, government officials and other sources of information. Absent further guidance, compliance with this aspect of the Rule may be difficult to assess and even more difficult to document, especially where the User and EP are not familiar with past and current local gossip.

USEPA should take this opportunity to establish clear regulations and reduce the ambiguity in this catch all category, despite the Negotiated Rulemaking Committee's reluctance to do so. In light of USEPA's clear direction from Congress to make rules for AAI, it is inappropriate for USEPA intentionally to avoid this issue and to leave these terms for the courts to define. Moreover, by " punting" this issue to the courts, USEPA is passing up the opportunity to provide a consistent, uniform standard and is instead inviting different judicial interpretations by different jurisdictions. Such an approach is at variance with the purpose of the AAI Rule, which is to establish both clear inquiry obligations and a safe harbor for those who follow them.

Response: Please see response to comment number 0256, excerpt 15.

Commenter Organization Name: McLeod, Jeff Comment Number: 0444 Excerpt Number: 7 Excerpt Text: The term reasonably ascertainable should be defined. The definition should include a time period, after which documents/ interviews are judged not to be reasonably ascertainable. While not included in the current rule, the term practically reviewable should be added, defined and referenced in Parts 312.24, 312.25, 312.26 and 312.30.

Response: Please see response to comment number 0373, excerpt 5. 576 3.9.3 Commonly Known or Reasonably Ascertainable Information Should Be Limited to State or Local Governments Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 14 Excerpt Text: 312.30 Commonly known or reasonably ascertainable information about the property. The sources for commonly known information should be limited to the local and state government. Information from newspapers, websites, and neighbors are unreliable and vulnerable to rumors. Information from these sources may be " hear say" or sensationalized. All appropriate inquiry reports become technical documents to support a legal argument. Therefore, sources of information that are potentially " hear say" or unreliable should be omitted.

SOURCES OF COMMONLY KNOWN INFORMATION SHOULD BE LIMITED TO " LOCAL AND STATE GOVERNMENTS."

Response: EPA disagrees with the commenter. Commonly known or reasonably ascertainable information may be available from sources other than local and state governments. EPA sees no reason to limit the collection of such information in this manner.

The final rule retains the proposed provisions requiring that prospective landowners and environmental professionals consider commonly known or reasonably ascertainable information about a property when conducting all appropriate inquiries. This provision has been part of the all appropriate inquiries requirements under CERCLA since the 1986 SARA amendments. The final rule does not change this provision. The final rule does point out that this information may not have to be collected independently if such information is gathered during the course of conducting the other information collection activities included in the rule and collected in compliance with the objectives and performance factors. The requirement is not so much " open ended" as it is a condition to not miss or ignore the obvious information or easily attained information that may be well known throughout a community in which a property is located. EPA is comfortable with the terms taking on their plain English definitions and does not believe that further defining the terms in the regulations will add meaningful guidance.

Commonly known or reasonably ascertainable information may be ascertained from the owner or occupant of a property, members of the local community, including owners or occupants of neighboring properties to the subject property, local or state government officials, local media sources, and local libraries and historical societies. In many cases, this information may be incidental to other information collected during the inquiries, and separate or distinct efforts to collect the information may not be necessary. Information about a property, including its ownership and uses, that is commonly known or reasonably attainable within the community or neighborhood in which a property is located may be valuable to identifying conditions indicative 577 of releases or threatened releases at the subject property. Such information, if not collected during the course of collecting other information necessary to complete the all appropriate inquiries investigation, may be obtained by interviewing community officials and other residents of the locality. For example, neighboring property owners and local community members may have information regarding undocumented uses of a property during periods when the property was idle or abandoned. Local community sources may be good ( i. e., reasonably attainable) sources of commonly known information on uses of a property and activities conducted at a property, particularly in the case of abandoned properties.

The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Commenter Organization Name: CBPA Comment Number: 0344 Excerpt Number: 4 Excerpt Text:  Proposed § 312.30 " Commonly Known or Reasonably Ascertainable Information About the Property" Imposes Extraordinarily Open Ended Search Requirements On Prospective Purchasers and Invites Courtroom Second Guessing Proposed § 312.30 requires that "[ throughout the inquiries," purchasers " must take into account commonly known or reasonably ascertainable information within the local community about the subject property." Sources of commonly known information are defined to include unenumerated " others" with knowledge of the property, unspecified " other" sources of information, as well as websites, local libraries, and newspapers. The requirement appears to make the purchaser responsible for any information about the property that might exist anywhere in the community. Although generally qualified by constraints such as reasonable time and cost, given the performance based approach of the new rule who is to say that one more phone call to the local librarian shouldn't have been made? In short, it is an open invitation to courtroom second guessing. 578 The rulemaking committee may believe that this section assigning liability to the purchaser for commonly known information is required by the Brownfields Act of 2002, which does recite the phrase " commonly known or reasonably ascertainable information." However, this element of All Appropriate Inquiry remains unchanged since 1986 and to the extent that it is a statutorily required element of future All Appropriate Inquiries, it is already covered by ASTM El 527. ASTM El527 properly limits " reasonably ascertainable" records to " standard sources." ASTM El527 00 § 7.1.4. There is no open ended catch all requirement to scour the community. For example, the historical use inquiry ends with the enumerated standard historical sources: " Whatever history of previous uses is derived from checking the standard historical sources specified [ herein]. . . shall be deemed sufficient historical use information to comply with this practice." ASTM E1527 00 § <IP_ADDRESS>. Moreover, ASTM E1527 explicitly relieves purchasers of the responsibility to consult " other historical sources," such as newspaper archives and other miscellaneous sources. ASTM El527 § <IP_ADDRESS>.

Response: Please see response to comment number 0292, excerpt 14.

Commenter Organization Name: Eden Housing Comment Number: 0380 Excerpt Number: 5 Excerpt Text: Proposed § 312.30 " Commonly Known or Reasonably Ascertainable Information About the Property" Imposes Extraordinarily Open Ended Search Requirements On Prospective Purchasers and Invites Courtroom Second Guessing Proposed § 312.30 requires that "[ t] hroughout the inquiries," purchasers" must take into account commonly known or reasonably ascertainable information within the local community about the subject property." Sources of commonly known information are defined to include unenumerated " others" with knowledge of the property, unspecified " other" sources of information, as well as websites, local libraries, and newspapers. The requirement appears to make the purchaser responsible for any information about the property that might exist anywhere in the community. Although generally qualified by constraints such as reasonable time and cost, given the performance based approach of the new rule, who is to say that one more phone call to the local librarian shouldn't have been made? In short, it is an open invitation to courtroom second guessing.

The rulemaking committee may believe that this section assigning liability to the purchaser for commonly known information is required by the Brownfields Act of 2002, which does recite the phrase " commonly known or reasonably ascertainable information." However, this element of All Appropriate Inquiry remains unchanged since 1986 and to the extent that it is a statutorily required element of future All Appropriate Inquiries, it is already covered by ASTM E1527. ASTM E1527 properly limits " reasonably ascertainable" records to " standard sources." ASTM E1527 00 § 7.1.4. There is no open ended catch all requirement to scour the community. For example, the historical use inquiry ends with the enumerated standard historical sources: 579 " Whatever history of previous uses is derived from checking the standard historical sources specified [ herein]. . . shall be deemed sufficient historical use information to comply with this practice." ASTM E1527 00 § <IP_ADDRESS>. Moreover, ASTM E1527 explicitly relieves purchasers of the responsibility to consult " other historical sources," such as newspaper archives and other miscellaneous sources. ASTM E1527 § <IP_ADDRESS>.

At the former plant nursery site, Eden and its development partner Community Housing Development Corporation of North Richmond have been meeting regularly with the local neighborhood association. The City of Richmond relies on this group's advice on local land use and funding decisions. We have discussed the environmental investigation performed to date and have shared our proposed cleanup plan with this group. No one in the group has provided us with new information about the subject property. Someone in the community may know something we don't know, but it is impossible for us to say. We will never be able to talk to everyone who lives or lived in the community. It would be unreasonable and unfair to expect us to do so.

Response: Please see response to comment number 0292, excerpt 14. 580 3.10 Considering the Degree of Obviousness of the Presence or Likely Presence of Contamination at the Property Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 9 Excerpt Text: Sec. 312.31( b) says that " The inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any." Read: sampling. This is an open invitation to EPs to move on to sampling. There are so many costly and time consuming investigations an EP has to do to meet " all appropriate inquiry" that the only way to make sure the requirements of the regulation are satisfied is by sampling. As a practical matter, on small parcels, the wise developer would be well advised to skip the historic search back to the dawn of civilization, give up the effort to track down former owners running from their environmental, or tax or whatever responsibility, abandon the search through government records, and just do a thorough sampling for reasonably expected contaminants: the eight RCRA metals, petroleum compounds, and any specific chemicals an intelligent, but not exhaustive, investigation suggests.

Response: The preamble to the proposed rule states, " The Agency notes that the proposed regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements. The proposal only notes that sampling and analysis may be conducted, where appropriate, to obtain information to address data gaps." 69 FR at 52560. At times sampling may be appropriate, however the rule does not require that sampling be conducted. Given that a property owner's ability to retain liability protection may hinge on his or her ability to comply with the statutorily imposed " continuing obligations," including the requirements to undertake appropriate care and stop on going releases, EPA believes that it is very important the results of the all appropriate inquiries investigation include include an opinion regarding additional appropriate investigation, if any.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 15 Other Sections: NEW  3.9.2  The Agency should provide additional guidance Excerpt Text: The proposed requirement for commonly known or reasonably ascertainable information about the property.

The proposed requirement for the degree of obviousness or the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.

These items, as pointed out, are carryovers from prior legislation. They have historically been at 581 the core of the ASTM practice that has become standard commercial practice. In the AAI there is not sufficient detail to implement the guidance. Making reference to the appropriate ASTM document easily solves this.

Response: EPA provides some guidance on the collection of this information in the preamble to the final rule. The ASTM E1527 2000 standard may provide additional guidance. Also, case law may provide guidance given that the Courts hold the ultimate responsibility for interpreting the statutory requirements.

The collection and use of commonly known information about a property may be done in connection with the collection of all other required information for the purposes of achieving the objectives and performance factors contained in § 312.20. Persons undertaking the all appropriate inquiries may collect commonly known or reasonably ascertainable information on the subject property from a variety of sources, including sources located in the community in which the property is located. The opinion provided by an environmental professional regarding the environmental conditions of a property and included in the all appropriate inquiries report should be based upon a balance of all information collected, including commonly known or reasonably ascertainable information about the property. The potential sources of commonly known or reasonably ascertainable information provided in the proposed rule and retained in the final rule are provided as suggestions for where such information may be found and the list provided is not meant as an exhaustive list of sources that must be consulted. Commonly known information may be collected from other sources and may be most easily collected during the conduct of other aspects of the all appropriate inquiries investigation ( e. g., interviews, reviews of historical sources of information, reviews of governmental records).

Regarding the requirement to include within the all appropriate inquiries the degree of obviousness or the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation, persons conducting all appropriate inquiries, following the collection of all required information, must assess whether or not an obvious conclusion may be drawn that there are conditions indicative of a release or threatened release of hazardous substances ( or other pollutants, contaminants, petroleum or petroleum products, and controlled substances) on, at, in, or to the property. In addition, the rule requires parties to consider whether or not the totality of information collected prior to acquiring the property indicates that the parties should be able to detect a release or threatened release on, at, in, or to the property. The final rule also retains the proposed requirement that the environmental professional include as part of the results of his or her inquiry an opinion regarding additional appropriate investigation, if any may be necessary.

We interpret the statutory criterion to require consideration of information already obtained during the conduct of all appropriate inquiries investigation and not as a requirement to collect additional information. We do not agree with commenters who asserted that the criterion is open ended. In fact, we see this criterion as providing direction on how all of the information collected while carrying out the other criteria and regulatory requirements must be viewed comprehensively. After collecting and considering all the information required to comply with 582 the rule's objectives and performance standards, all the information should be considered in total to determine whether or not there are indications of releases or threatened releases of hazardous substances on, at, in, or to the property. In addition, the environmental professional should provide an opinion regarding whether or not additional investigation is necessary to detect potential contamination at the site, if in his or her opinion there are conditions indicative of releases or threatened releases of hazardous substances.

The previous innocent landowner defense ( added to CERCLA in 1986) required a court to consider the degree of obviousness of the presence or likely presence of contamination at a property, and the ability of the defendant ( i. e., the landowner) to detect the contamination by appropriate investigation. Nothing in today's rule changes the nature or intent of this requirement as it has existed in the statute since 1986. Case law relevant to this criterion indicates that defendants may not be able to claim an innocent landowner defense if a preponderance of evidence available to a prospective landowner prior to acquiring the property indicates that the defendant should have concluded that there is a high likelihood of contamination at the site.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 15 Excerpt Text: 312.31 The degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation. We support this section.

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

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 8 Excerpt Text: The proposed rule § 312.31 ( a) indicates that the degree of obviousness of releases or threatened releases must be considered by the EP ( and others).

Comment: While there are several discussions regarding " degree of obviousness" in the preamble, it is unclear how this requirement is intended to be addressed. If a release is found or known to exist, this requirement does not appear to have value, as it is " obvious enough" to have been identified. Is the intent that for each threatened release identified in the conclusions, the EP provides a statement as to how obvious it is that the release may have actually occurred? An example would be a conclusion about a steel UST containing hazardous materials on the site having been installed 25 years ago, with tightness tests passed as recently as the past year. The concern would be slow leaks, or overfills. In this case, does the EP add a sentence to the effect 583 that it is " moderately obvious" that a release from the tank may have occurred? The actual intent for how this requirement is to be applied in an AAI report is very unclear. What " degrees" of obviousness would you use in cases where the potential for impact is low, or perhaps high? Consistency in terminology, including meaning, is necessary. Otherwise, this issue will inconsistently be addressed.

Response: Persons conducting all appropriate inquiries, following the collection of all required information, must assess whether or not an obvious conclusion may be drawn that there are conditions indicative of a release or threatened release of hazardous substances ( or other pollutants, contaminants, petroleum or petroleum products, and controlled substances) on, at, in, or to the property. In addition, the rule requires parties to consider whether or not the totality of information collected prior to acquiring the property indicates that the parties should be able to detect a release or threatened release on, at, in, or to the property. The final rule also retains the proposed requirement that the environmental professional include as part of the results of his or her inquiry an opinion regarding additional appropriate investigation, if any may be necessary.

EPA interprets the statutory criterion to require consideration of information already obtained during the conduct of all appropriate inquiries investigation and not as a requirement to collect additional information. We do not agree with commenters who asserted that the criterion is open ended. In fact, we see this criterion as providing direction on how all of the information collected while carrying out the other criteria and regulatory requirements must be viewed comprehensively. After collecting and considering all the information required to comply with the rule's objectives and performance standards, all the information should be considered in total to determine whether or not there are indications of releases or threatened releases of hazardous substances on, at, in, or to the property. In addition, the environmental professional should provide an opinion regarding whether or not additional investigation is necessary to detect potential contamination at the site, if in his or her opinion there are conditions indicative of releases or threatened releases of hazardous substances.

The previous innocent landowner defense ( added to CERCLA in 1986) required a court to consider the degree of obviousness of the presence or likely presence of contamination at a property, and the ability of the defendant ( i. e., the landowner) to detect the contamination by appropriate investigation. Nothing in today's rule changes the nature or intent of this requirement as it has existed in the statute since 1986.

Case law relevant to this criterion indicates that defendants may not be able to claim an innocent landowner defense if a preponderance of evidence available to a prospective landowner prior to acquiring the property indicates that the defendant should have concluded that there is a high likelihood of contamination at the site. Please see section IV. X of the preamble to the final rule.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 9 584 Excerpt Text: The proposed rule § 312.31 ( b) states that the EP ( and others) must consider the ability to detect contamination by appropriate investigation. This paragraph ends with a statement that the EP needs to include an opinion regarding additional appropriate investigation ( recommendations).

Comment: As these reports may also be used for business reasons, such as in preparation for property financing or sale, with possible distribution of the reports to multiple parties, clients are often reluctant to have recommendations included within the text of the report. Instead, they prefer to have recommendations provided as a separate document. The proposed rule appears to require that recommendations be included in the report itself. We suggest that the option be presented that recommendations be able to be provided in either the report, or in a separate recommendations letter.

Response: The rule does require that the environmental professional on behalf of the prospective landowner or grantee document the results of the all appropriate inquiries in a written report. For purposes of compliance with all appropriate inquiries it is required that recommendations be provided in the report. However, the final rule contains no requirements regarding the length, structure, or specific format of the written report. In addition, the rule does not require that a written report of any kind be submitted to EPA or any other government agency, or that a written report be maintained on site at the subject property for any length of time. The purpose of the written report is merely to ensure that any person claiming one of the CERCLA landowner liability protections be able to show documentation that all appropriate inquiries were conducted in compliance with the federal regulations, should such documentation be required. The choice to distribute this report is a decision made by the owner/ grantee and is outside the scope of this rule.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 19 Excerpt Text:  The proposed requirements for the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.

 This proposed requirement is nebulous and requires additional explanation. Of the hundreds of all appropriate inquiries we have conducted or reviewed since 1986, all have considered the totality of acquired information. We question then, why the environmental professional must assess whether an obvious conclusion must be drawn regarding actual or threatened releases of hazardous substances. We believe it is asking too much of the environmental professional to make this determination. Let the facts speak for themselves and allow the environmental professional to make a judgment as to potential environmental liabilities. This proposed requirement is too fine a line and trends to the nebulous in requiring adherence to " degree of obviousness." 585 Response: Please see response to comment number 0314, excerpt 9.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 11 Excerpt Text: Proposed requirement for degree of obviousness of contamination a) Page # 52581 b) View: It is mandatory that this be included in the Phase I AAI performance standards. It may seem intuitive that this be included, and even elementary to have it be a requirement. However practice in the field does not always follow logic.

c) Assumptions: Too often in practice consultant's are persuaded to exclude looking at certain risks by their client, and defined as ' not in the scope'. d) Burden: None. The EP must narrate their observations, all their observations into the report. This is a primary purpose for the being contracted to perform a Phase I.

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

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 5 Excerpt Text: Objectives and Performance Factors  The term " threatened release" seems poorly defined. For example, would the identification of high risk activities, e. g. a past dry cleaner, during completion of a phase I investigation be considered to be a threatened release or would direct evidence of a release be required.? I suggest inclusion of a more precise definition in order to avoid confusion in the industry.

Response: The term " threatened release" is included in the definition of " release" in the National Contingency Plan ( NCP) at 40 CFR 300.5. For the purposes of the NCP, " release also means threat of release." Under CERCLA, owners and operators of vessels and facilities may be found liable for both releases of hazardous substances and threatened releases of hazardous substances.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 13 Other Sections: NEW  3.7  Inclusion of specialized knowledge or experience 586 NEW  3.9  Considering commonly known or reasonably ascertainable information about the property Excerpt Text: § 312.28, § 312.30 and § 312,31, the term " person"

Please consider including the need to define the term " Persons" in § 312.1 ( b)( 1), should be further defined, either in the preamble or in § 312.10 Definitions. Under § 312.28, § 312.30 and § 312,31, the term " person" should not include every individual in a firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, Tribe, municipality, commission, political subdivision of a State, or any interstate body, but should be limited to those persons directly involved with conducting the AAI for the purpose of § 312.28, § 312.30 and § 312.31. For example, specialized knowledge or experience cannot mean the specialized knowledge or experience of every employee in a corporation of 25,000 employees. Clarifying language and instructive examples in the preamble will ensure that the applicability of these sections is practical.

Response: The term " person" is defined in Section 101( 21) of CERCLA. " Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body. Since firms, corporations, associations, partnerships, etc. may purchase potentially contaminated property and may want to attain protection from CERCLA liability, as provided under the statute, EPA is uncertain why the commenter is suggesting that the term person be limited or changed from its common legal definition and the definition provided under the CERCLA statute. 587 3.11 Recognized Environmental Conditions Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 2 Excerpt Text: Sec. 312.1( 2)( ii) and ( iii). These subsections exceed EPA's authority by requiring prospective purchasers and grantees to investigated releases and threatened releases of substances not regulated under the Comprehensive Environmental Response, Compensation and Liability Act. Specifically, ( ii) requires investigation in to petroleum releases, which are excluded under CERCLA, and ( iii) " controlled substances" under 21 U. S. C. 802, the Drug Abuse, Prevention and Control Act! ( See also, 312.27( b) where reports of visual inspections are to identify areas where 21 U. S. C. 802 chemicals were found.) An environmental assessment for hazardous substances is costly. While cleaning up meth labs is laudable, assessing a brownfield site for illegal drugs is an unnecessary redevelopment expense.

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

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

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 11 Excerpt Text: The Band agrees with the proposed language limiting identification of releases and threatened releases only where a threat is posed to human health or the environment.

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

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 19 Excerpt Text: 588 312.20( d): " Threatened" release is a very nebulous term and needs some discussion or examples.

Response: The term " threatened release" is included in the definition of " release" in the National Contingency Plan ( NCP) at 40 CFR 300.5. For the purposes of the NCP, " release also means threat of release." Under CERCLA, owners and operators of vessels and facilities may be found liable for both releases of hazardous substances and threatened releases of hazardous substances.

Commenter Organization Name: McLeod, Jeff Comment Number: 0444 Excerpt Number: 4 Excerpt Text: The proposed rule requires people using grant funds to address petroleum products, pollutants, contaminates and controlled substances in addition to hazardous substances while non grant funded AAIs are only required to address hazardous substances. The rule and preamble do not address the rationale for requiring the more rigorous list for grant funded AAIs. It has been our experience that petroleum products are more commonly identified on properties undergoing Phase I's than are hazardous substances and that the majority of Phase I's conducted are done by private individuals not seeking grant funding. It would therefore stand to reason that petroleum contamination would not be required to be reported or addressed by a majority of those required to perform AAIs for CERCLA protection. It would seem more prudent to require that the same materials be addressed in either grant funded or non grant funded AAIs.

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

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

EPA agrees with the commenter that it may be prudent for prospective property owners to assess the subject property for releases and threatened releases of other pollutants and substances, including petroleum and petroleum products. 589 3.11.1 De Minimis Conditions or Releases of Hazardous Substances Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 11 Excerpt Text: R& W commends the EPA for including essentially a de minimis condition in § 312.21( g), that which poses no threat to human health and the environment. The de minimis condition has been key to the success of E 1527 00 and its predecessors.

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

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 13 Other Sections: NEW  3.1.1  Interview of the current owners, occupants, employees, and/ or managers of the subject property Excerpt Text: The proposed § 312.23( b) requires that the EP's inquiry include interviews with " major occupants" and " occupants likely to use, store, treat, handle or dispose of hazardous substances." Under this proposed rule, an environmental professional must interview all occupants of a property who are likely to " use, store, treat, handle or dispose hazardous substances  " This could be interpreted to include any residence, as they typically have ammonia, chlorine bleach, various pesticides, etc. This requirement would create additional cost and difficulty in conducting inquiries, while providing only a minimal benefit, if any at all. For example, if a property contains an apartment complex, the EP could be required to interview every tenant in the building. R& W requests that the EPA clarify this requirement to specifically exclude de minimis use, storage, and disposal of hazardous substances that are typically associated with residential dwellings and commercial offices.

Response: In the case of properties where there may be more than one owner or occupant, or many owners or occupants, the final rule requires the inquiry to include interviews of major occupants and those occupants that are using, storing, treating, handling or disposing ( or are likely to have used, stored, treated, handled or disposed) of hazardous substances ( or pollutants, contaminants, petroleum, and controlled substances, as applicable) on the property. The rule does not specify the number of owners and occupants to be interviewed. The environmental professional must perform this function in the manner that best fulfills the objectives and performance factors for the inquiries in ' 312.20( e) and ( f). Environmental professionals may use their professional judgment to determine the specific occupants to be interviewed and the total number of occupants to be interviewed in seeking to comply with the objectives and performance factors for the inquiries. Interviews must be conducted with individuals most likely to be knowledgeable 590 about the current and past uses of the property, particularly with regard to current and past uses of hazardous substances on the property.

EPA points out that the environmental professional need not specifically identify, in the written report prepared pursuant to § 312.21( c), extremely small quantities or amounts of contaminants, so long as the contaminants generally would not pose a threat to human health or the environment.

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 6 Excerpt Text: Proposed Section 312.20( g) and 312.21( c): DEQ recognizes that identification of routine household cleaners typically found at businesses is probably not relevant to AAI. However, DEQ believes that small quantities or amounts of hazardous substances should be included in the report. An example of when the proposed rule could pose a problem is at an automotive maintenance facility. An automotive maintenance facility typically has cans of brake cleaner, lubricants and other chemical compounds sitting around. Although there may only be small quantities of these items and they may pose no immediate threats to human health or the environment, the facility may have had terrible housekeeping practices. No signs of contamination may be evident. However, 20 years of improperly disposing of and spilling the cleaners, lubricants, etc. may lead to soil and groundwater contamination. It is important for the prospective purchaser to be aware of all chemicals used at the property they are purchasing. DEQ requests that EPA require the identification of small quantities or amounts of hazardous substances in the AAI reports.