Response: EPA disagrees with commenters who stated that it will be difficult to locate and contact neighboring property owners and occupants. The final rule, as did the proposed rule, requires that the environmental professional only locate and interview one neighboring property owner or occupant and only in those cases where no owner or occupant of the subject property can be identified. An environmental professional should be able to locate one owner or occupant of a neighboring property when conducting the on site visual inspection of the property. If the environmental professional cannot easily locate an owner and occupant of a neighboring property owner, he or she may enlist the assistance of local government officials in identifying a neighboring property owner or occupant. 394 3.2.1 Interviewing Owners of Neighboring Properties Should Be Optional Commenter Organization Name: Fischer, Greg Comment Number: 0062 Excerpt Number: 1 Excerpt Text: Hypothectical: While doing the site reconnaissance of an abandoned property an attempt is made to interview a neighbor( s) and no one is home. Is the environmental professional required to revisit the site until someone answers the door? In a related instance what should the professional do if he or she senses that the neighborhood is not safe i. e. apparent drug or gang related activity.

Response: Please see response to comment 0433, excerpt 3.

Commenter Organization Name: Beaver, Christine Comment Number: 0074 Excerpt Number: 3 Excerpt Text: With regard to the proposed requirement to interview owners or occupants of neighboring properties in the case of abandoned properties, it is my opinion that it presents a conflict of interest. I believe there would be difficulty with obtaining either cooperation or credible information from neighboring property owners. Neighboring property owners may either be unmotivated to provide any information or conversely could provide information to further their own interests or those of community groups. It is not known what the historical relationship between the neighboring property owners has been and how this might affect the information they provide. Information on the neighboring properties from visual inspection and records review would also be included in the report to assess impacts to the subject property from off site sources and that may affect the information neighboring property owners provide by trying to place blame for environmental liabilities elsewhere. Also, the source of information being consulted is one who has an opportunity to claim protection from CERCLA liability as a contiguous property owner and this may affect the information they are willing to provide.

Response: As is the case with information ascertained from any interview, the environmental professional must apply his or her judgment when drawing conclusions based on the information provided in interviews with neighboring property owners and occupants and should attempt to verify any information provided by reviewing other available sources of information. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the 395 case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: Roark, Michael Comment Number: 0081 Excerpt Number: 2 Excerpt Text: One concern I have is the proposed requirement that states that owners of adjacent properties should be interviewed if assessing an abandoned property. This requirement may cause confidentiality conflicts with several clients. Based on the delicate nature of commercial redevelopment transactions, I would request that EPA make the neighboring landowner interview requirement an optional item, depending on the confidentiality of the project.

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

Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 11 Excerpt Text: Sec. 312.23( d), in the case of abandoned properties, EPA requires the EP to interview " one or more ( as necessary) owners or occupants of neighboring or nearby properties from which it appears possible to have observed uses of, or releases at, such abandoned properties...." What if the present owners or occupants did not own or occupy their property at the time the abandoned parcel was operational? Is the EP supposed to hunt down owners/ occupiers from the time the abandoned parcel was in use? This wide ranging hunt for site specific information will make brownfield redevelopment very costly.

Response: EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance 396 standards cannot be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 9 Excerpt Text: This limited exception requiring interviews with neighboring properties will occur so rarely it is not a significant issue in the context of standard commercial practice. It needs to remain clear that this is an exception.

Response: The rarity or prevalence of any particular situation does not change the requirements. Abandoned properties are often the focus of Phase I environmental assessments.

Commenter Organization Name: PBS & J Comment Number: 0270 Excerpt Number: 1 Excerpt Text: One should try to interview past and current owners, occupants and may be even operators of subject tract, but I don't believe it should be mandatory to interview adjacent property owners. Adjacent property owners are sometimes helpful, but some times can be misleading, too.

Response: The final rule only requires that neighboring property owners be interviewed in those cases where the subject property is abandoned. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorilyimposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 5 Excerpt Text: 397 It is unreasonable to require consultants to interview neighboring property owners to determine whether uncontrolled access to an abandoned property has lead to contamination. The neighboring owners may be unwilling to discuss the property or unable to provide useful or reliable knowledge. Further, the neighbor may be hostile towards the subject property owner and provide false accusations. Information from a neighboring owner may be " hear say", and as such, should be considered unreliable. This section should include interviews with municipal officials to obtain information about abandoned properties. Municipal officials would be a viable source of information and constitute a far more reliable source.

Response: The final rule only requires that neighboring property owners be interviewed in those cases where the subject property is abandoned. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorilyimposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance standards can not be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

Commenter Organization Name: Anonymous Comment Number: 0294 Excerpt Number: 1 Excerpt Text: 312.23 ( d) The requirement to interview nearby occupants/ property owners may conflict with confidentiality agreements that environmental professionals have with clients, particularly financial institutions.

Response: With regard to the requirement to interview owners or occupants of neighboring properties if the subject property is abandoned, EPA believes that the benefit of obtaining information with regard to previous ownerships and uses of the subject property from these individuals outweighs the potential burdens of disclosing that the subject property may be purchased. The primary objective of all appropriate inquiries is to identify conditions indicative of releases or threatened 398 releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do not comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 1 Excerpt Text: § 312.23 ( d) requires the interview of one or more ( as necessary) neighbors or abutters in the case of the subject property's being abandoned and there is evidence of potential unauthorized uses of or uncontrolled access to the abandoned subject property.

Comment: ENSR has strong reservations about the practicality of this requirement, particularly when the proposed transaction is confidential, as is often the case. Additionally, there are potential safety issues that may be involved in approaching abutters.

Response: The final rule only requires that neighboring property owners be interviewed in those cases where the subject property is abandoned. The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance standards can not be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

EPA believes that the benefit of obtaining information with regard to previous ownerships and uses of the subject property from these individuals outweighs the potential burdens of disclosing that the subject property may be purchased. The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. 399 Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: Kane Environmental Comment Number: 0317 Excerpt Number: 2 Excerpt Text: It is unclear why an abandoned property requires interviews with neighbors. As a practical matter, many times clients do not want neighbors to know of their interest in a property, due to financing relationships, competition with other prospective purchasers and other proprietary considerations. You are also assuming that neighbors will provide accurate historical information Response: Please see response to comment 0314, excerpt 1.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 11 Excerpt Text: Interviews with Neighbors of Abandoned Properties. We appreciate the fact that proposed section 312.23( d), providing for interviews with owners or occupants of neighboring or nearby properties when conducting AAI for an abandoned property, is a compromise agreed to after long and contentious debate by the Reg Neg Committee. As EPA certainly has come to appreciate, early disclosure of a proposed property transaction will often be the death knell to a transaction and inhibit Congress' goal of encouraging redevelopment of impaired property under the Brownfields law. For these reasons, interviews with neighboring property owners or occupants should not be mandatory but should be an option available to the environmental professional where such interviews are the only way to achieve the objective and performance factors of AAI as outlined in proposed sections 312.20( d) and ( e). It appears that this is EPA's intent in section 312.23( d), but instead of drafting that section to track the language and structure of section 312.23( c), which unambiguously expresses that intent, EPA changed the structure of section 312.23( d) so that a court passing on a claim of CERCLA liability protection might infer that the lack of paralled structure in the two subsections was intended by EPA to prescribe different criteria for determing when interviews with neighbors of abandoned properties was required. To avoid possible misunderstanding, US WAG urges EPA to track the language and structure of section 312.23( c) by revising section 312.23( d) to read:

In the case of inquiries conducted at " abandoned properties," as defined in § 312.10, where there is evidence of potential unauthorized uses of the subject property or evidence of uncontrolled 400 access to the subject property, the environmental professional's inquiry should include, to the extent necessary to achieve the objectives and performance factors of § 312.20( d) and ( e), interviewing one or more owners or occupants of neighboring or nearby properties from which it appears possible to have observed uses of, or releases at, such abandoned properties.

Response: In the final rule, as in the proposed rule, the requirement to interview one or more neighboring property owners in those instances where the subject property is determined to be abandoned, is not subject to the condition proposed by the commenter ( to the extent necessary to achieve the objectives and performance factors). The rule provides that in all instances of abandoned properties, an attempt must be made to locate and interview a neighboring property owner. The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance standards can not be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

Commenter Organization Name: SCANA Comment Number: 0373 Excerpt Number: 9 Excerpt Text: We suggest the Agency consider revising the language in § 312.23( d). The current wording mandates that an interview must be performed in the case of abandoned properties. We present the following scenarios for consideration: There may be no owners/ occupants in a position to have observed the property's past and present uses Interviewees may decline to participate in the process or fail to respond in a manner within the time constraints for the inquiry The interviewee may not be credible for a multitude of reasons or the information provided may not be reliable in the opinion of the environmental professional.

In a related matter, please note that energy providers have the authority to take private property 401 to provide electric and gas services to the public. There is a similar nature of conflict with the proposed rule as applied to both abandoned properties and private properties acquired to continue reliable electric and gas service to the public. The Agency is urged to take these points into consideration and make appropriate revisions in the language of the regulation.

Response: The final rule only requires that neighboring property owners be interviewed in those cases where the subject property is abandoned. The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

EPA recognizes that some individuals may not be willing or able to provide necessary information to assist the environmental professional in meeting the objectives and performance standards of the final rule. If necessary information to meet the objectives and performance standards can not be obtained during the conduct of interviews, the lack of information and inability to interview owners and occupants should be noted in the written report as a data gap. In addition, the significance of the missing information to the environmental professional's ability to render an opinion with regard to the environmental conditions of a property must be noted.

EPA believes that the benefit of obtaining information with regard to previous ownerships and uses of the subject property from these individuals outweighs the potential burdens of disclosing that the subject property may be purchased. The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. Therefore, prospective property owners and environmental professionals should conduct the inquiries with the goal of obtaining as much information as possible regarding the past uses and ownerships of a property. In the case of abandoned properties, owners and occupants of neighboring properties may be valuable sources of information.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 9 Excerpt Text:  The proposed requirements to interview owners or occupants of neighboring properties in the case of abandoned properties.

 Abandoned properties represent a valid issue in accounting for environmental liabilities. 402 However, requiring assessors to interview one or more owners or occupants of neighboring or nearby properties is unreasonable. These owners or occupants are under no obligation to provide information to the assessor and it is our experience that the availability of adjacent owners or occupants varies depending on the type of property. While it is likely that an abandoned property in a city or town will have adjacent owners or operators that can be reasonably contacted, such is not the case in rural and agricultural communities. Therefore, this proposed requirement represents an unreasonable burden to the assessor.

Response: Please see response to comment 0373, excerpt 9.

Commenter Organization Name: Freeman & Giler Comment Number: 0417 Excerpt Number: 3 Excerpt Text: Where the subject property is abandoned, Proposed Rule § 312.23( d) requires at least one interview with a past or present owner, operator or major occupant of a neighboring property who may have observed the operations of the subject property. Neighbors may also have to be interviewed " to the extent practicable" to determine the potential for a release at the subject property, the ownership or use of the subject property and/ or the remedial activities to address past or on going releases at the subject property.

Neighbor interviews should be optional at the discretion of the EP as determined by the EP's need for additional data to adequately assess the subject site. For instance, where governmental agency records or other reliable sources document contamination, investigation and/ or remediation at the subject site, the EP should not be obligated to interview neighbors just to satisfy the AAI Rule. This is especially true when prospective owners have legitimate business concerns that such neighbor interviews may impede the property transfer, inflate property costs, draw unwanted publicity or complicate subsequent development or redevelopment plans.

Response: Please see response to comment 0373, excerpt 9.

Commenter Organization Name: Mittelholzer, Michael Comment Number: PM 0207 0002 Excerpt Number: 3 Excerpt Text: Under Section 312.23, " Interviews with past and present owners, operators and occupants," NAHB fully supports and recognizes the need to accurately assess the use of a property. NAHB is concerned that the additional requirements found under this section, specifically 312.23( d), entitled " Additional Requirements for Abandoned Properties," which is specifically an obligation to locate and interview neighbors of abandoned properties in addition to all the other requirements found under 312.23, such as reviewing all historical sources, reviewing all 403 environmental means on the property, and reviewing all state and local records on the property.

Our concern specifically, though, is just with 312.23( d) in that we feel it is an additional administrative burden for perspective purchasers that could have the unintended impact of discouraging redevelopment of abandoned properties that, frankly, are already challenging properties to redevelop.

Response: Please see response to comment 0373, excerpt 9. 404 3.2.2 The Agency Should Clarify/ Modify the Language Pertaining to " Unauthorized Use" and " Uncontrolled Access" of the Subject Property Commenter Organization Name: ENSR International Comment Number: 0314 Excerpt Number: 2 Excerpt Text: Lastly, further definition should be provided with respect to the terms, " evidence of potential unauthorized uses of the subject property," or " evidence of uncontrolled access to the subject property." [ emphasis added]. Does evidence of " homeless people" occupying the site constitute evidence of potential unauthorized use? If so, what environmental harm would result from such evidence? Indications that some neighboring kids have thrown soda bottles or even beer bottles onto the subject property does this constitute evidence of uncontrolled access and thus triggering a requirement to talk to abutters? If you are going to have this requirement, we recommend modifying the language such that evidence of unauthorized use or uncontrolled access must also be tied to observable evidence of a release or threat of a release of a regulated substance. Without the latter, there should not be an obligation to talk to abutters or neighbors.

Response: The final rule defines an abandoned property as a Aproperty that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property.@ Evidence of homeless people occupying a property would not in itself be a good indication that the property is abandoned. An inability to identify or locate a current owner for the property would be a better indication that the property is abandoned.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 7 Excerpt Text: In § 312.23 " Interview with past and present owners, operators, and occupants" ( d), the terms used to define abandoned properties, " unauthorized uses" and " uncontrolled access," are vague and are open to a broad range of interpretation. The terms should be explained in the preamble or qualified as represented in this suggested change:

( d) " In the case of inquiries conducted at " abandoned properties," as defined in § 312.10, where there is evidence of potential unauthorized uses of the subject property that reflect conditions indicative of a release or threatened release of hazardous substances on, at, in, or to the subject property or evidence of uncontrolled access to the subject property, the EP's inquiry must include interviewing one or more ( as necessary) owners or occupants of neighboring or nearby properties from which it appears possible to have observed uses of or releases at such abandoned properties for the purpose of gathering information necessary to achieve the objectives and performance 405 factors of § § 312.20( d) and ( e)."

Rationale:  Unauthorized uses could be interpreted as loosely as burning trash and uncontrolled access could be applicable to every property without a fence. At a minimum, the preamble should clarify or give examples of " unauthorized uses" and " uncontrolled access."  Interviewing neighbors at great frequencies, as this current language would require, would unnecessarily increase the cost of the assessments, alarm neighbors, and prematurely expose a user's interest in the subject property.

Response: The final rule defines an abandoned property as a Aproperty that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property.@ EPA disagrees with the commenter's suggestion to qualify the definition of abandoned property as a property that reflects " conditions indicative of a release or threatened release of hazardous substances." Including such a condition in the definition would require an environmental professional to determine the potential environmental conditions of a property before he or she finished conducting the inquiries. Evidence of potential releases at a property would not in itself be a good indication that the property is abandoned. An inability to identify or locate a current owner for the property would be a better indication that the property is abandoned. 406 3.3 Review of Historical Sources of Information Commenter Organization Name: Goodman, J. Dwight Comment Number: 0097 Excerpt Number: 6 Excerpt Text: The criteria regarding historical data review seems to be appropriate.

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

Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 8 Excerpt Text: 312.24 Reviews of historical sources of information We support this section.

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

Commenter Organization Name: Holm, Wright, Hyde, & Hays Comment Number: 0323 Excerpt Number: 2 Excerpt Text: Comment 2: Irrespective of the above, to accomplish the expanded review of historical sources of information, there will be an increase in the time required for the proposed activity. For instance, agricultural use of land becomes important for the historical time periods where it was likely that pesticides were used.

The federal National Resource Conservation Service ( NRCS) provides historical information on crops typically grown in most counties in the country. It would be very useful if a compendium of pesticide use by crop over time could be provided. This would provide valuable input to the environmental professional and allow him or her ( or designee) to spend 0.75 hour versus 1.5 hour to interview the NRCS and former property owners or other knowledgeable people in the cases where agricultural activities of concern preceded other development over the last century or so.

Recommendation: Develop a compendium of historic pesticide availability, typical usage on crops over time, half life of the active ingredient and other pertinent information. 407 Response: The development of a compendium of historic pesticide availability, typical usage on crops over time, half life of the active ingredient and other pertinent information for all properties across the country is beyond the scope of the current rule. Interviews with current and past occupants of the subject property and interviews with local government officials may be good sources of information regarding the types of pesticides that were previously used at the property.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 11 Other Sections: NEW  3.4  Recorded environmental cleanup liens searches NEW  3.5  Review of federal, state, tribal, and local government records Excerpt Text: 1) FAA believes that EPA should allow the EP flexibility to determine whether title history, fire insurance maps, institutional controls, environmental liens, and other requirements are applicable at the subject property. For many FAA site assessments, these sources are not applicable, especially to remote properties in Alaska and other low population areas. Potential contamination from adjoining properties in such instances is non existent. FAA suggests that EPA should allow more flexibility in the contents of an AAI for properties in remote, undeveloped, and unpopulated areas.

Response: The final rule does not require that any specific type of historic information be collected or consulted when reviewing historical information about a property. The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property= s ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries.

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 7 Excerpt Text: Proposed Section 312.24: DEQ believes that relying on historical reports from a site may be problematic. A document may state that no historical information is known about the site but with a little more investigation, additional information can be found. If a person solely relies on the information found in the previous report, this could perpetuate errors or misunderstandings. DEQ believes that for AAIs, a person must conduct independent historical research investigation and not rely on past documents.

Response: The final requirements for reviewing historical documents allow the prospective landowner, grantee, and environmental professional to use their judgment, in accordance with generally 408 accepted good commercial and customary standards and practices, in locating the best available sources of historical information and reviewing such sources for information necessary to comply with the rule= s objectives and performance factors. EPA agrees with the commenter that there will be situations where previously conducted AAI reports are not the best source of historical information about a property. When reviewing and using previously prepared AAI reports, the environmental professional should use his or her best judgment in determining the quality and reliability of the information provided in the report. In addition, the final rule requires that information used from previous reports be updated if it was collected more than one year or 180 days prior to the date of acquisition of the property ( depending upon what type of information is being used).

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 23 Excerpt Text: 312.24( a): Street ( aka criss cross or reverse) directories are a very valuable source of information and should be included in the list of historical documents.

Response: EPA thanks the commenter for the input. It is not possible for EPA to list in the regulation every type of information that may potentially useful for complying with the requirements of the final rule.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 24 Excerpt Text: 312.24( b): What is a " governmental purpose?" Park? Forest? Wilderness area?

Response: By " government purpose" the Agency means a property that is owned or operated by a government entity for use by the government entity or for a use that serves the needs or purpose of the government entity.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 10 Excerpt Text:  The proposed standards for reviews of historical sources of information.

 The review of historical sources of information is the key component of the all appropriate inquiry process. Without an adequate characterization of site history, accurate assumptions about 409 environmental liability are not feasible. However, Intertox is opposed to a rule that would not require any specific type of historic information be collected. Without at least some guidance, future environmental site assessments will suffer from a lack of data. We recommend that some suggested sources of information be included in the final rule. For instance, Sanborn fire insurance maps, R. L. Polk or similar city directories ( beginning with reverse directories 1930 onward), aerial photographs ( at least one from each decade from the 1940s onward), and topographic maps are historic resources that have proven since 1986 to be beneficial sources of information in characterizing a site's history:

The reason we believe at least some guidance be provided is because the majority of professionals conducting environmental site assessments have no historical research training and to leave this important task to an engineer or geologist without some level of recommendation will likely result in poorly researched site histories and, correspondingly, assumptions of environmental liability that are potentially unfounded.

Response: The final rule at 312.24( a) provides several examples of historical sources of information that may be consulted. These include aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 20 Other Sections: NEW  5  Comments on the Paperwork Reduction Act Excerpt Text:  The proposed information collection requirements, including the need for such information, the accuracy of the provided burden estimates associated with the requirements, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques.

 While Intertox does not have any comment about U. S. EPA's burden estimates we do believe that the use of automated collection techniques represents information liability to the environmental professional. It is common practice for environmental consultants to use several national companies to conduct review of government records. When these services first became available in the late 1980s the quality was suspect, however, these searches are now reliable and accurate. What we are concerned with is the use of these companies by environmental professionals for reviewing historical sources of information. For instance, city directory research, recorded title searches, and interviews with local government officials are offered by these companies. It is our experience, especially with recorded title searches, that the effort expended by these companies is insufficient to adequately characterize a site's history. We have seen in particular, poorly conducted title searches and city directory searches that are incomplete. In addition, only the environmental professional should make contact with local government officials, as they know better than anyone else the questions that need to be asked relative to their subject property. Accordingly, we recommend that automated collection techniques not be 410 utilized to acquire historical sources of information.

Response: The final requirements for reviewing historical documents allow the prospective landowner, grantee, and environmental professional to use their judgment, in accordance with generally accepted good commercial and customary standards and practices, in locating the best available sources of historical information and reviewing such sources for information necessary to comply with the rule= s objectives and performance factors. EPA agrees with the commenter that there will be situations where data base search results provided by independent consultants or companies are not the best source of historical information about a property. When reviewing and using such information, the environmental professional should use his or her best judgment in determining the quality and reliability of the information provided.

Commenter Organization Name: RT Environmental Services Comment Number: 0406 Excerpt Number: 2 Excerpt Text: There is also little guidance provided on availability from the Agency of historical information that preparers should rely on to determine the nature and extent of historical manufacturing activity which is or could have been conducted on subject properties.

Response: Historical documents and records, among others, may include chain of title documents, land use records, aerial photographs of the property, fire insurance maps, and records held at local historical societies. Local government officials also may be valuable sources of information on historical uses of properties.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 6 Other Sections: NEW  3.4  Recorded environmental cleanup liens searches Excerpt Text: The need for a chain of title search and a property lien search, although not specifically called for the proposed rule, will be necessary to establish the past ownership and use to the degree called for under AAI. The average cost for a chain of title is between $ 250 to $ 500. This is a tremendous cost addition on a percentage basis for a Phase I and typically yields no useful information as to potential environmental issues to a property.

Response: The final rule does not require that any particular type of historical document be found or used for any particular property. Although a chain of title search may provide valuable information on previous ownership and uses of a property, the prospective landowner, grantee, and environmental professional may be able to find this information from other sources ( e. g., 411 interviews with current and past owners, other government records).

Commenter Organization Name: MPCA Comment Number: 0437 Excerpt Number: 1 Excerpt Text: The Minnesota Pollution Control Agency staff has reviewed the proposed All Appropriate Inquiry ( 40CFR Part 312) and would like to comment on § 3.12.24 which would require the environmental professional to include a review of historical documents and records for the subject property that document the ownership and use of the property for a period of time as far back in the history of the property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial or government purpose.

The MPCA staff is concerned that this statute, as written, would not be inclusive of unpermitted disposal sites where no other activity besides disposal was historically conducted on the property. The MPCA staff suggests that disposal sites be added to this statute since disposal does not seem to be included or fit into any of the categories ( ie., residential, agricultural, commercial, industrial or government) listed in the proposed statute.

An alternative might be to require the review of aerial maps of the subject property and areas in close proximity. It is likely that a review of these aerial photos will not only show developed areas and public roads but also disposal sites Response: EPA disagrees with the commenter. The use of a property for the purpose of waste disposal could be included in several of the mentioned areas, including commercial, industrial and government use, depending on the particular circumstances. In addition, the final rule, at 312.25( b)( 2) requires reviews of government records of activities, conditions, or incidents likely to cause or contribute to releases or threaten releases of hazardous substances, including landfill and other disposal unit location records and permits.

Commenter Organization Name: McKerr, Thomas Comment Number: 0347 Excerpt Number: 2 Excerpt Text: Section II, E, 3. Innocent Landowner. Reviews of historical sources lists " chain of title documents" first, from which I infer that this is an important source. In fact a chain of title seldom includes relevant information such as tenancy or tenant activities. Even identifying past owners may be of little value. Identifying Acme, Inc. in the chain is of little value ( unless you are after Wiley Coyote). I recognize the " chain of title documents" is listed in the Act, but place it last in the preamble and add better sources as examples, e. g., street ( criss cross) directories. 412 Response: The final rule does not require that any particular type of historical document be found or used for any particular property. Although a chain of title search may provide valuable information on previous ownership and uses of a property, the prospective landowner, grantee, and environmental professional may be able to find this information from other sources ( e. g., interviews with current and past owners, other government records). In the final rule language at 312.24( a) chain of title documents are not listed first in the list of suggested historical documents. 413 3.3.1 Scope of the Review  How far Back in Time/ History Historical Records Must Be Reviewed Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 6 Excerpt Text: Sec. 312.24( b) requires a review of historic records " cover[ ing] a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial or governmental purposes." Even title searches are considered reliable if they go back 50 years. In the hunt to determine the environmental condition of a property, EPA is requiring prospective purchasers to hire historians. An historic records search reaching back no more than 50 years is reasonable; to the dawn of civilization on the property is not.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ Despite the concerns raised by some commenters regarding the scope of the historical records review, we assert that the scope of the requirements in the final rule ( as did the scope of the proposed requirements) reflect congressional intent as provided in CERCLA ' 101( 35)( B)( iii). The statutory criterion provides that all appropriate inquiries include Areviews of historical sources... to determine previous uses and occupancies of the real property since the property was first developed.@ We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

Commenter Organization Name: Zutz Comment Number: 0104 Excerpt Number: 5 Excerpt Text: This section requires that historical documents and records be reviewed " from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes".

We take exception to this requirement. Consider these examples: the first residential use of the property for many parcels would be Indian settlement; the first agricultural use of the land may have been prior to European settlement in the 1600s ( 1860s or later for the upper midwest); and 414 for US land within the Louisiana Purchase, the first governmental use of the land would begin in 18 02. There would be a significant lack of documents of these uses.

The historical source review requirements should be broadened to a review of reasonably available documents.

Response: Please see response to comment 0095, excerpt 6.

Commenter Organization Name: PBS & J Comment Number: 0270 Excerpt Number: 3 Excerpt Text: How far back should one research should be left up to the site situation, the available data, and the judgment of the environmental professional. As a guide the ASTM standard is adequate.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

Commenter Organization Name: Kane Environmental Comment Number: 0317 Excerpt Number: 3 Excerpt Text: The new proposed standards should adopt the same requirements for historical research as the current ASTM requirements. For example, if the EP only looks at historic aerial photographs, does that mean that the remaining historical documents are considered as " data gaps" and need to be addressed as such in the Phase I ESA? Keeping it the same as the current ASTM standard reduces potential confusion as to what is enough historical research Response: The final rule does not require that any particular type of historical document be found or used for any particular property. The environmental professional may use his or her judgment in determining what particular documents may provide the best information on historical ownerships and uses of a property. The types of documents listed in the regulations are only 415 suggestions of the types of documents that may provide useful information.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 3 Excerpt Text: R& W requests that any promulgated rules contain more specific guidance or requirements for historical research, that is, if the EPA continues with this rule making process.

Response: The final rule does not require that any particular type of historical document be found or used for any particular property. The final rule allows the environmental professional to use his or her judgment in determining what particular documents may provide the best information on historical ownerships and uses of a property. The final rule does provide a list of suggested documents that may provide useful information.

Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 14 Excerpt Text: The proposed § 312.24( b) requires that " historical documents and records reviewed must cover a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes." It then states that the EP "  may exercise professional judgement in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records." Without a provision for the likelihood that individual records will yield materially useful information, this proposed rule is not workable. For instance, chain of title documents may identify the owner of a property for well over 100 years, but these documents do not typically document the use of the property. Obviously, the historical use of the property is much more important to the AAI and Phase I ESA process. R& W requests that the EPA include a likelihood of usefulness condition for the historical source information gathering process. This has made the E 1527 00 process much more efficient.

Response: The usefulness of any one particular document is dependent upon many circumstances including the quality of the information included in the document and how dependent the user is upon that particular source of information as the primary or only source of historical information. The final rule does not require that any particular type of historical document be found or used for any particular property. The final rule allows the environmental professional to use his or her judgment in determining what particular documents may provide the best information on historical ownerships and uses of a property. The final rule does provide a list of suggested documents that may provide useful information. 416 Commenter Organization Name: Rose and Westra Comment Number: 0320 Excerpt Number: 15 Other Sections: NEW  4.1  The impact of the rule is underestimated Excerpt Text: Furthermore, the proposed § 312.24( b) does not limit the duration of investigation for historically unimproved properties. The E 1527 00 requirement to investigate such properties back to 1940 is more economically efficient and poses virtually no threat of not identifying conditions posing material environmental risk. This has made the E 1527 00 process much more efficient. The Economic Impact Analysis failed to address the increased requirements over the E 1527 00 requirements. Therefore, it understates the impact of the Proposed Rules. R& W requests that the EPA further clarify the historical research requirement to avoid needless historical investigation of vacant property ( prior to 1940). In the absence of such, R& W requests that the EPA provide a realistic economic assessment of this section of the Proposed Rules.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

In the case of properties that show evidence of never having structures or improvements, the environmental professional should use his or her judgment as to how far back in time records need to be searched to be reasonably certain that no structures or improvements were placed on the property or there is no evidence of an ownership or use that would have potentially caused a release of hazardous substances at the property. The historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier. Given the similarities of the requirements, EPA believes that the incremental cost for conducting the search of historical records will be the same for the final rule as it was under the ASTM standard.

Commenter Organization Name: Holm, Wright, Hyde, & Hays Comment Number: 0323 Excerpt Number: 1 Excerpt Text: Comment 1: The proposed regulation says " Historical documents and records reviewed MUST 417 ( emphasis added) cover a period of time as far back in the history of the subject project as it can be shown that the property contained structures " but then goes on to place on the environmental professional the responsibility to " exercise professional judgment" as to how far back to go. We believe that using the more stringent approach " MUST" will either become an unnecessary point of contention often leading to litigation or create a slavish ( and more expensive) protocol.

Recommendation: Change " MUST" to " are expected to", thereby supporting the environmental professional's ability to exercise judgment.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ The historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

Commenter Organization Name: Mille Lacs Ojibwe Comment Number: 0330 Excerpt Number: 14 Excerpt Text: The Band concurs with the proposed language that an Environmental Professional may exercise his or her professional judgment in the determination of how far back to research historical documents and records given the availability of facts at the time of the inquiry.

Response: Please note that the comment slightly misstates the meaning of the rule language. The final requirements for reviewing historical documents allow the purchaser and environmental professional to use their judgment, in accordance with generally accepted good commercial and customary standards and practices, in locating the best available sources of historical information and reviewing such sources for information necessary to comply with the rule= s objectives and performance factors. The availability of facts at the time of the inquiry is not the determinative factor. Rather, compliance with the rule's objectives and performance factors should be paramount. 418 Commenter Organization Name: Grand Rapids C of C Comment Number: 0345 Excerpt Number: 3 Excerpt Text: Section 312.24( b) requires that " historical documents and records reviewed must cover a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes." The Grand Rapids Area Chamber of Commerce recommends that a specific time period be included in § 312.24( b) for review of historical sources of information. Specifically, the Chamber recommends that the period of review be equal to the period of review under the current ASTM E 1527 standard. The period described in the proposed § 312.24( b) would increase the time and effort, and therefore the cost, associated with historical document review without providing any real benefit. There is simply no indication that the period of time currently set forth in the ASTM E 1527 for historical document review is in any way inadequate for purposes of " all appropriate inquiry."

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ The historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

Commenter Organization Name: Potter and Adams Comment Number: 0351 Excerpt Number: 5 Excerpt Text: This proposed section requires " historical documents and records reviewed must cover a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes."

This requirement is unreasonable as it will require the prospective purchasers to review the 419 property history back to its original, undeveloped condition. In certain parts of the country, this may require researchers to sort through several hundred years of historical documents to reach the first development. In addition, the majority of solvents and pesticides that are usually the chemicals of concern at these properties were not developed and/ or widely used until the 20th century.

A suggested alternative to this language is " historical documents and records reviewed must cover a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes. The documents and records must be reasonably ascertainable and the historical period reviewed should not exceed the year 1900 unless the environmental professional determines that additional review is required to achieving the objectives and performance factors of Section 312.20( d) and ( e)."

An additional suggestion is to add the ASTM E 1527 00 definitions of reasonably ascertainable, publicly available, and practically reviewable to the definitions section of 312.10. These definitions will support the professional judgment of the EP.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ The historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors.

The primary objective of all appropriate inquiries in to identify conditions indicative of releases or threatened releases of hazardous substances. Prospective property owners should keep in mind that they may be held liable for releases of hazardous substances after acquiring a property if they do comply with the statutorily imposed continuing obligations. The performance factors included in the final rule are meant to provide guidelines for the conduct of the inquiry activities, not to draw absolute boundaries around the performance of the data collection activities by specifically defining each term. It is in the prospective property owner's best interest to conduct the inquiries as thoroughly as possible to ensure his or her ability to comply with all of the statutory criteria for the CERCLA liability protections. The Agency has embraced the performance standard approach to the final rule because it allows flexibility for a variety of circumstances and unique properties. This standard does not lend itself to bright line 420 interpretation. Rather, the Agency is comfortable allowing for judicial interpretation of this standard.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 12 Excerpt Text:  iv. Proposed § 312.24 " Reviews of Historical Sources" places an unreasonable burden on developers that is inconsistent with the intent of the Brownfields Revitalization Act.

EPA concludes that ASTM E1527' s treatment of historical sources does not comply with the Brownfields Revitalization Act because " ASTM E1527 2000 requires identification of all obvious uses of the property from the present, back to the property's obvious first developed use or back to 1940, whichever is earlier." 69 Fed. Reg. at 52575. EPA reasons that " Congress did not qualify the review to obvious uses, and did not give an alternate date regarding the review." Id. The preamble further explains that the environmental professional must " document the ownership and use of the property for a period of time as far back in the history of the property as it can be shown that the property contained structures, or from the time the property was first used for residential, agricultural, commercial, industrial, or government purposes." Id. at 52561.

We disagree with EPA's construction of the statute. We think that reading the statute's requirement of historical research to include non obvious uses back into the 1600' s for many east coast properties and 1800' s for California properties is not reasonable.

The Brownfields Revitalization Act includes a historical source criteria that provides for review of historical sources " to determine previous uses and occupancies of the real property since the property was first developed." 42 U. S. C. § 9601( 35)( B)( iii)( III). We believe that EPA's conclusion that the statutory " previous uses and occupancies" criteria cannot be interpreted to mean " obvious" uses and occupancies doesn't adequately consider that this criteria is to be implemented by EPA in accordance with " customary standards and practices," 42 U. S. C. § 9601 ( 35)( B)( i)( I), and that by EPA's own reckoning customary practices do limit the identification of previous uses to " obvious" uses. To require identification of all uses and occupancies ( including the first agricultural use), all the way back in time as an overly literal reading of the criteria would, is to require the impossible. Many commercial properties are, or have been, commercial rental properties. Some of these are demised and re demised in varying configurations to accommodate market demand for various size tenancies over time. Subleases are common. Commercial tenants move in and move out. Uses change. There is no system in place designed to capture all of this information, yet the rule seems to require it. Interpreting the Brownfields Revitalization Act to require developers to jump through an impossible hoop in order to obtain liability protection, when the purpose of the legislation is to protect developers from liability, produces an absurd result. Courts, and federal agencies, are " required by traditional canons of statutory construction to avoid a literal interpretation of a statute that leads to an absurd result." Hurston v. Director, Office of Workers, 989 F. 2d 1547, 1554 ( 9th Cir. 1993). 421 The committee surely recognized the problem because the text of the proposed rule includes the qualification " the environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records." Proposed § 312.24. This provision, however, contradicts EPA's reasoning in the preamble for rejecting ASTM E1527 and contradicts the explanation of this section provided by the preamble. It also does not address the problem of being able to identify all uses ( as opposed to obvious uses) and occupancies. This requirement, too, is " performance based," so any records of nonobvious uses earlier than the date actually searched to by the environmental professional are fair game for courtroom second guessing.

We suggest that ASTM E1527 00 § 7.3 does comply with the Brownfields Revitalization Act. We also believe that so far the only reasonable interpretation of the " historical use" requirement of the statute considered in the administrative record of this rulemaking is ASTM E1527' s provision for searches back to the property's " obvious first developed use." We also believe that the checklist approach of ASTM E1527 00 § 7.3, which provides a purchaser with clarity about when he has reached the end of his All Appropriate Inquiry task is the only reasonable approach to historical use considered in this administrative record: " 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." Id. There is no room for " performance based" courtroom second guessing.

We hope you will reconsider this requirement.

Response: Congress included in the Brownfields Amendments a list of criteria that the Agency must include in the regulations establishing standards and practices for conducting all appropriate inquiries. These criteria are set forth in CERCLA Section 101( 35)( B)( iii) and include: "  Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records, to determine previous uses and occupancies of the real property since the property was first developed." ( 40 CFR Part 312, p. 52547). This direction from Congress is specific and consists of no limiting language.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors. Bright line guidelines frustrate the purpose of performance standards, which is to allow for flexibility to deal with unique properties.

Commenter Organization Name: NPCA Comment Number: 0403 Excerpt Number: 8 422 Excerpt Text: The Proposed Rule also requires seemingly open ended historic record reviews. Traditional title searches are considered reliable if they go back 50 years. The Proposed Rule's qualifiers from the time the property contained structures or was first used for residential, agricultural, commercial, industrial or governmental purposes  do not provide an appropriate timeframe within which historic records must be sought. Government agency records must also be searched, without appropriate qualification as to the timeframe and feasibility of these searches. In some cases, the type of records the Proposed Rule requires searched do not exist, and where they do exist, they are not often readily available. In the end, with the requirement that the EP identify data gaps in the report and comment on their particular significance for each area of inquiry under each standard, EPA's lack of commercially appropriate guidelines for record searches will leave potential purchasers with little or no assurance that following the AAIs as proposed will afford them liability protection.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ The historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors. Bright line guidelines frustrate the purpose of performance standards, which is to allow for flexibility to deal with unique properties.

Commenter Organization Name: Georgia Power Comment Number: 0423 Excerpt Number: 9 Excerpt Text: In § 312.24 " Review of historical sources of information" ( b), the timeframe that the historical records review should cover is vague and requires clarification. This is a suggested revision to provide more clarity:

( b) " Historical documents and records reviewed must cover the earliest of the following periods of time: as far back in the history of the subject property as it can be shown that the property:

( i) from when the subject property first contained structures, or 423 ( ii) from when the time the subject property was first used for residential, agricultural, commercial, industrial, or governmental purposes, or ( iii) from 1940 in the case of perceivably undeveloped properties."

Rationale:  The way the language is currently written, there is no guidance to prevent the EP from reviewing historical records from the 1700s. ASTM E 1527 00' s Section 7.3 ( Historical Use Information) has a clear standard and good examples regarding properties developed in the 1700s. EPA should consider including similar examples in the preamble to this regulation and clarify which of those examples would require the EP to document a " data gap."( See Preamble for AAI Proposed Rule at p. 52562.)

Response: Please see response to comment 0403, excerpt 8.

Commenter Organization Name: Dannatt, Georgina Comment Number: PM 0359 0004 Excerpt Number: 4 Excerpt Text: My last area of comment is regarding how far back an inquiry should go. Currently, ASTM 1527 standard calls for inquiries to go back to 1940 or first developed use, whichever one is earlier. In over half the Phase One reports I review, this standard is not met, with research sometimes only going back to the 1960s or ' 70s.

Sometimes a consultant is relying on aerial photographs as the primary historical resource, and aerials are not available for an early period. Fire insurance maps and city directories may or may not cover the site. The consultant does not try to locate another source of information. An alternative to historical sources, such as city, building, or tax records and topographic maps that may go back to the 1920s, are not tapped at all.

When ASTM standards were developed in the 1990s, a look back period of fifty years was chosen. This date is a good indicator of when many industrial chemicals became widely used. The 1940 date is still valid today.

I believe the proposed rule should be prescriptive in calling for research to be conducted back to a set date, rather than leaving this issue up to the provider. It cannot be ignored that pricing factors often guide research, instead of technical factors.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ The historical records search requirements of the final 424 rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

We point out that the final rule does allow the environmental professional to exercise his or her professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors. Bright line guidelines frustrate the purpose of performance standards, which is to allow for flexibility to deal with unique properties.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 5 Excerpt Text: We do not understand EPA's criticism of the ASTM E1527 00 provision requiring " identification of all obvious uses of the property from the present, back to the property's obvious first developed use or back to 1940, whichever is earlier." 69 Fed. Reg. at 52575. The key phrase in this provision is " whichever is earlier." In a sense, the reference to 1940 might be regarded as surplusage because if the first developed use occurred before 1940, then the review of historical sources must go back to the property's obvious first developed use and not stop at 1940. On the other hand, if the property was first developed after 1940, the search of historical records back to 1940 ( the earlier of the two dates) is more stringent than the EPA proposal, hardly a basis for EPA complaint.

We also believe that a rigid requirement to search historical records to the property's first use may be of limited value and prove to be unnecessarily costly. If the property was first developed centuries ago  for example, in the 18 th century  the availability and usefulness of records several hundred years old may be limited. The ASTM standard allows the environmental professional to exercise professional judgment about searching for such ancient records. See ASTM El527 00 § 7.3.2. EPA should adopt a similar clarification in the final rule.

Response: The statutory criteria in the Brownfields Amendments require that reviews of historical sources of information be conducted to Adetermine previous uses and occupancies of the real property since the property was first developed.@ EPA agrees with the commenter that the historical records search requirements of the final rule are very similar to the requirements of the ASTM E1527 2000 standard at 7.3.2 that require all obvious uses of the property to be identified from the present, back to the property's obvious first use, or back to 1940, whichever is earlier.

EPA points out that the final rule does allow the environmental professional to exercise his or her 425 professional judgment Ain context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records@ to ensure that the inquiries are done in compliance with the objectives and performance factors. We believe that this provides sufficient flexibility to allow for any circumstances where due to the availability of other information about a property an environmental professional may conclude that a comprehensive search of historical records is not necessary to meet the objectives and performance factors. 426 3.3.2 Review of Chain of Title Documents Should Be Made a Requirement Commenter Organization Name: Beaver, Christine Comment Number: 0074 Excerpt Number: 2 Excerpt Text: With regard to the proposal that it be left to the professional judgement of the environmental professional to determine what types of historical information to collect, it is my opinion that the chain of title is the best method to make All Appropriate Inquiry into past ownership of the property and should be made a requirement.

Response: The final rule does not require that any specific type of historic information be collected. In particular, the rule does not require that persons obtain a chain of title document for the property. The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property's ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries. Although we agree with commenters that chain of title documents may serve as an important source of information regarding past ownership of a property, it may not be the only source of this information. To the extent that chain of title documents are otherwise obtained for other purposes during the conduct of a property sale or transaction, we believe that these documents can easily be made available to the environmental professional by the prospective landowner. Given that the final rule requires that historical records be searched for information on previous uses and ownership of a property for as far back in the history of property as can be shown that the property contained structures or was first used for residential, agricultural, commercial, industrial or governmental purposes, if chain of title documents are the best and most easily attainable source of this information, we assume that such documents will be obtained and used by the environmental professional.

Given the wide variety of property types and locations to which the final rule could apply, any list of specific documents could result in undue burdens on many prospective landowners and grantees due to difficulties in collecting any specific document for any particular property or property location. Therefore, the final requirements for reviewing historical documents allow the prospective landowner or grantee and the environmental professional to use their judgment, in accordance with generally accepted good commercial and customary standards and practices, in locating the best available sources of historical information and reviewing such sources for information necessary to comply with the rule's objectives and performance factors.

Commenter Organization Name: Perry, Brett Comment Number: 0368 Excerpt Number: 1 Excerpt Text: The AAI Rule Should Require Historical Chain of Title Searching to Identify Previous 427 Ownership The CERCLA amendments provide the following: To establish that the defendant had no reason to know  the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. 42 U. S. C § 9601( 35)( B)

Historical chain of title ( HCOT) searching provides the only reliable means to reliably identify " previous ownership." The proposed rule, however, seems to allow the Environmental Professional ( EP) with the discretion to identify previous ownership from historical records such as aerial photographs, fire insurance maps, city directories, or chains of title to satisfy this requirement.

Given this discretion, in light of the requisite skill sets of an EP ( which seems to include geology and engineering skills), EPs will only very infrequently conduct HCOT searches. Indeed, current " Phase I" practice suggests that this is the case. Currently, environmental consultants will request a HCOT only upon their client's request. In my estimation this equals about one percent of the time, with the remainder believing that using other historical sources adequately satisfies the requirement.

It is not the case however that any one of these other historical sources alone can satisfy the spirit of due diligence and define all potentially responsible parties who have owned or leased a particular parcel in the past. By listing owners' names as well as corresponding deed conveyances and leaseholds, only an HCOT can do this.

For these reasons I would suggest that the wording of the proposed rule distinguish the two very different terms " ownership" and " uses" of the property and, in turn, identify historical sources suitable for each. It should make clear the fact that different historical records have different strengths in identifying the needed information, and particularly how a HCOT is the only one that will adequately identify all prior ownership of a property. The eventual AAI final rule should require HCOT searches to identify previous ownership.

Title Insurance Provided Title Searching Versus Historical COT Searches It is important to understand the nature of what a HCOT is, and what it is not. In most every real estate transaction, the Title Insurance or Escrow Company prepares " title reports" for the purpose of providing an insurance policy or guarantee. The sole use of a title commitment is for the issuance of insurance to protect a mortgage holder and a land owner. A title commitment/ examination only discloses current information that affects the property. In this sense, there is no historical information investigated or reported. Very often an environmental consultant or their client will incorrectly conclude that since the title company is providing a report, there is no need to obtain a HCOT. Suggested HCOT Criteria for the AAI Rule 428 In addition to requiring HCOT searches, the AA rule should identify the general components of a HCOT, as well as extra elements that may be required on a case by case basis. Each COT ought to identify the subject property by site address, legal description, and Assessor's Parcel Number ( APN) when available. The current owner( s) and the percentage of respective interest in the property should also be shown. Each conveyance of the property or any portion thereof should be listed in chronological order, and include the name of the parties conveying the property as well as the names of the parties to whom it was conveyed. The type of conveying document ( warranty deed, quit claim deed, probate, etc.) should be listed along with the recording agency's file number of that document. Recorded surface leases should be identified as well, since this identifies tenants whom, as much as the owner, may be a potentially responsible party. The chronology should go back at least to 1940, though in many industrial parts of the country it would be appropriate to trace ownership back further. Other items that may be included as requested in a particular instance are environmental liens or institution controls. An example HCOT has been attached herein.

Response: The final rule does not require that any specific type of historic information be collected. In particular, the rule does not require that persons obtain a chain of title document for the property. The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property's ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries. Although we agree with commenters that chain of title documents may serve as an important source of information regarding past ownership of a property, it may not be the only source of this information. To the extent that chain of title documents are otherwise obtained for other purposes during the conduct of a property sale or transaction, we believe that these documents can easily be made available to the environmental professional by the prospective landowner. Given that the final rule requires that historical records be searched for information on previous uses and ownership of a property for as far back in the history of property as can be shown that the property contained structures or was first used for residential, agricultural, commercial, industrial or governmental purposes, if chain of title documents are the best and most easily attainable source of this information, we assume that such documents will be obtained and used by the environmental professional.

Given the wide variety of property types and locations to which the final rule could apply, any list of specific documents could result in undue burdens on many prospective landowners and grantees due to difficulties in collecting any specific document for any particular property or property location. Therefore, the final requirements for reviewing historical documents allow the prospective landowner or grantee and the environmental professional to use their judgment, in accordance with generally accepted good commercial and customary standards and practices, in locating the best available sources of historical information and reviewing such sources for information necessary to comply with the rule's objectives and performance factors. 429 Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 11 Excerpt Text: We also believe it is unwise to not require some level of title information on the subject site. Recorded title documents are an essential resource because they accurately identify past and current site owners and may identify past and current occupants and operators ( through leases). This is also a resource that is easily obtained from a title company, making this a resource that could be obtained by the environmental professional or from the purchaser or an agent of the purchaser ( Title Company).

Response: Please see response to comment 0368, excerpt 1.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 12 Other Sections: NEW  3.4  Recorded environmental cleanup liens searches Excerpt Text:  The proposed standards for searching for recorded environmental cleanup liens.

 Intertox agrees that the existence of an environmental lien may be an indicator of environmental concern. We also agree that this search is likely more easily accommodated by the purchaser or an agent of the purchaser. However, we believe the proposed rule should specifically identify title companies as the " agent of the purchaser." Title companies are the most experienced and most likely able to procure a recorded environmental lien. While it is true that recorded title documents are becoming more available online from county assessor offices, a title company is still the most qualified to obtain an environmental lien.

Response: Although a title company may often be a good agent to obtain information on environmental cleanup liens, the Agency sees no reason to require a prospective landowner or grantee to hire a title company to obtain this information if the prospective landowner or grantee can acquire the information from another source.

Commenter Organization Name: Rybak, John Thomas Comment Number: 0412 Excerpt Number: 14 Excerpt Text: Land Use Restrictions.

a) Page # 52546 430 b) View: In the application of following Land Use Restrictions, reasonable consideration should be granted to limit business interruptions while implementing practical Land Use Restrictions. It is important to understand the type of land use restrictions that are put on to the deed and the reasoning behind the land use restrictions prior to land acquisition. Therefore the AAI performance standards should include an evaluation of these restrictions.

c) Assumptions: The Deed Restriction has to be filed each time the title is transferred into a new name, which will make the new owner aware of the land use restrictions. d) Burden: Reduces the potential property use until such time that the Land Use Restriction is removed, which could impede the return on investment in purchasing the property.

Response: The final rule requires the identification of institutional controls placed on the subject property. As defined in § 312.10, institutional controls are non engineered instruments, such as administrative and legal controls, that among other things, can help to minimize the potential for human exposure to contamination, and protect the integrity of a remedy by limiting land or resource use. For example, an institutional control might prohibit the drilling of a drinking water well in a contaminated aquifer or disturbing contaminated soils. Institutional controls also may be referred to as land use controls, activity and use limitations, etc., depending on the program under which a response action is conducted or a release is addressed.

Institutional controls are typically used whenever contamination precludes unlimited use and unrestricted exposure at the property. Thus, institutional controls may be needed both before and after completion of the remedial action or may be employed in place of a remedial action. Institutional controls often must remain in place for an indefinite duration and, therefore, generally need to survive changes in property ownership ( i. e., run with the land) to be legally and practically effective. Some common examples of institutional controls include zoning restrictions, building or excavation permits, well drilling prohibitions, easements and covenants.

Those persons conducting all appropriate inquiries may identify institutional controls through several of the standards and practices set forth in this rule. As noted, implementation of institutional controls may be accomplished through the use of several administrative and legal mechanisms, such as zoning restrictions, building permit requirements, easements, covenants, etc. For example, an easement implementing an institutional control might be identified through the review of chain of title documents under § 312.24( a). Furthermore, interviews with past and present owners, operators, or occupants pursuant to § 312.23; and reviews of federal, tribal, state, and local government records under § 312.26, may identify an institutional control or refer a person to the appropriate source to find an institutional control. For example, a review of federal Superfund records, including Records of Decision and Action Memoranda, as well as other information contained in the CERCLIS data base, may indicate that zoning was selected as an institutional control or an interview with a current operator may reveal an institutional control as part of an operating permit. 431 Commenter Organization Name: Perry, Brett Comment Number: PM 0127 0013 Excerpt Number: 1 Excerpt Text: However, it is still somewhat vague of what exactly should a title report should be, and it would be nice if you could include something in there of what exactly is required, and make it a little more clear that they should be included in the Phase I.

Response: The final rule does not require that any specific type of historic information be collected. In particular, the rule does not require that persons obtain a chain of title document for the property. The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property's ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries. Although chain of title documents may serve as an important source of information regarding past ownership of a property, it may not be the only source of this information. To the extent that chain of title documents are otherwise obtained for other purposes during the conduct of a property sale or transaction, we believe that these documents can easily be made available to the environmental professional by the prospective landowner. Given that the final rule requires that historical records be searched for information on previous uses and ownership of a property for as far back in the history of property as can be shown that the property contained structures or was first used for residential, agricultural, commercial, industrial or governmental purposes, if chain of title documents are the best and most easily attainable source of this information, we assume that such documents will be obtained and used by the environmental professional.

The commenter may want to seek the advice of a title search company for additional information on the specific information contained in title search documents. 432 3.4 Recorded Environmental Cleanup Lens Searches Commenter Organization Name: Scalise, Frederick W, et al Comment Number: 0105 Excerpt Number: 3 Other Sections: NEW  3.16  Division of responsibilities ( tasks performed by EP vs. landowner/ purchaser) Excerpt Text: This section should more clearly indicate that it is NOT the responsibility of the Environmental Professional to search for environmental cleanup liens. Searching and analyzing title and deed records is not generally within the scope of expertise of an Environmental Professional, and is best left to a title company or title insurance company. It should be solely the responsibility of the person defined in § 312.1 to provide any information regarding liens to the Environmental Professional.

Response: The final rule allows that the search for recorded environmental cleanup liens be performed either by the purchaser or through the inquiry of the environmental professional. The search for such liens may not necessarily require the expertise of an environmental professional and therefore may be more efficiently or more cost effectively performed by the purchaser or an agent of the purchaser. Such liens may be included as part of the chain of title documents or may be recorded in some other manner or format by state or local government agencies. If such information is collected by the purchaser, or other agent of the purchaser who is not under the supervision or responsible charge of the environmental professional, the final rule allows for, but does not require, the information on environmental cleanup liens that is collected by or on the behalf of the purchaser to be provided to the environmental professional. If the information is provided to the environmental professional, he or she can make use of the information when conducting the all appropriate inquiries and when rendering conclusions or opinions regarding the environmental conditions of the property.

The decision of who conducts the search is best left up to the judgment of the prospective landowner, grantee, and environmental professional. The final rule provides in § 312.22 that the search for recorded environmental cleanup liens can fall outside the inquiries conducted by the environmental professional. The search for recorded environmental cleanup liens is not included as part of the requirements governing the " results of an inquiry by an environmental professional" ( § 312.21). Therefore, the search may be conducted by the prospective purchaser, an attorney or agent hired by the purchaser, or the environmental professional hired by the prospective purchaser.

Commenter Organization Name: Koch, Donald Comment Number: 0234 Excerpt Number: 1 Other Sections: NEW  3.7  Inclusion of specialized knowledge or experience 433 NEW  3.8  Considering the relationship of the purchase price to the value of the property NEW  3.9  Considering commonly known or reasonably ascertainable information about 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: As a result of our consideration of the issues raised by commenters, today's final rule modifies the requirements of § 312.22 " additional inquiries" by stating ( in paragraph ( a)) that " persons... may provide the following information [ i. e., the information for which the prospective landowner or brownfields grantee is responsible] to the environmental professional..." The proposed rule provided that such information " must be provided" to the environmental professional. Although we expect that most prospective landowners and grantees will furnish available information or knowledge about a property to an environmental professional he or she hired when such information could assist the environmental professional in ascertaining the environmental conditions at a property, we affirm that compliance with the statutory criteria does not require that such information be disclosed. Ultimately, CERCLA liability rests with the owner or operator of a facility or property owner and it is the information held by the property owner or operator that may be reviewed in a court of law when determining an owner or operator's liability status, regardless of whether all information was disclosed to an environmental professional during the conduct of all appropriate inquiries.

Commenter Organization Name: Koch, Donald Comment Number: 0234 Excerpt Number: 5 Excerpt Text: It is probably reasonable to require that the environmental cleanup lien search ( proposed 312.22 ( a)( 1)) be provided to the environmental professional, but once again, it is not a statute requirement and it does not require the judgement of an environmental professional.

Response: Please see response to comment 0234, excerpt 1. 434 Commenter Organization Name: Anthony, Tony, et. al. Comment Number: 0292 Excerpt Number: 9 Excerpt Text: 312.25 Searches for recorded environmental cleanup liens This section should clearly state that it is the responsibility of the purchaser to evaluate the presence of environmental liens.

Response: Please see response to comment 0105, excerpt 3.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 11 Other Sections: NEW  3.3  Review of historical sources of information NEW  3.5  Review of federal, state, tribal, and local government records Excerpt Text: 1) FAA believes that EPA should allow the EP flexibility to determine whether title history, fire insurance maps, institutional controls, environmental liens, and other requirements are applicable at the subject property. For many FAA site assessments, these sources are not applicable, especially to remote properties in Alaska and other low population areas. Potential contamination from adjoining properties in such instances is non existent. FAA suggests that EPA should allow more flexibility in the contents of an AAI for properties in remote, undeveloped, and unpopulated areas.

Response: The final rule does not require that any specific type of historic information be collected. In particular, the rule does not require that persons obtain a chain of title document for the property. The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property's ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries.

Commenter Organization Name: FAA Comment Number: 0334 Excerpt Number: 13 Excerpt Text: 3) Would environmental lien information show up in databases currently utilized by most EPs to conduct environmental site assessments? Please provide clarification on this issue. 435 Response: With regard to commenters who requested that EPA provide guidance on where to search for environmental cleanup liens, we advise that prospective purchasers seek the advice of a local realtor, real estate attorney, title company, or other real estate professional. Environmental cleanup liens may be recorded as part of the land title records or as part of other state or local government land or real estate records. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located.

Commenter Organization Name: Greenlining Institute Comment Number: 0354 Excerpt Number: 16 Excerpt Text:  Recorded Environmental Cleanup Liens The Brownfields Revitalization Act provides that " searches for recorded environmental cleanup liens that are filed under Federal, State, or local law" shall be one of the criteria used in promulgating the All Appropriate Inquiry regulation. 42 U. S. C. § 20 9601( 35)( B)( iii)( IV). The language of the statue is crystal clear, that it is recorded liens that are to be searched. All fifty states have recording acts that specify a centralized location ( usually one in each county) where instruments may be validly recorded. See Curtis J. Berger & Quintin Johnstone, Land Transfer and Finance 712 ( 4th ed. 1993).

ASTM E1527 00 requires searches for liens recorded in the " place where land title records are, by law or custom, recorded for the local jurisdiction in which the property is located." ASTM E1527 00 § 7.3.4. This makes sense because under the law of the fifty states it is the only place where liens can be validly recorded.

EPA argues that ASTM E1527 may not be used because " liens may be filed in places other than recorded land title records and therefore a more comprehensive standard is necessary to match the cope intended by the statute." 69 Fed. Reg. at 52575. This is simply not what the statute says, it says recorded liens. Liens may arise under federal and state law. For example a windfall lien arises under CERCLA itself and may be filed pursuant to federal law, but the place and manner of recording is a matter of state law by long custom and practice.

There is no indication that Congress intended to preempt or disrupt the law of the states in an area long reserved to the states. In fact, recording acts predate the Constitution. Land Transfer at 713. It would also be illogical to disrupt longstanding and well established industry practice. If any one fact is commonly known throughout the real estate industry it is the following: if you want your lien to achieve priority and provide record notice you had better record in the county recorders office. The proposed new requirement would upset a centralized and very reliable system for notice of liens.

We believe ASTM E1527 00 satisfies the statutory criteria for cleanup liens while the proposed 436 rule does not. In light of the information presented here, we urge EPA to reconsider this issue.

Response: Environmental cleanup liens may be recorded as part of the land title records or as part of other state or local government land or real estate records. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located.

As outlined in the preamble to the proposed rule, the Agency determined that the ASTM E1527 2000 standard differed from the statutory criteria in a few instances. As reflected in the Agency's discussions of these differences in the preamble to the proposed rule and in the Agency's economic impact analysis for the proposed rule, the changes included in the regulatory requirements to ensure that the AAI standards are reflective of Congressional intent do not represent economically significant differences over previous generally accepted good commercial and customary practices.

Commenter Organization Name: USWAG Comment Number: 0367 Excerpt Number: 8 Excerpt Text: Finally, EPA criticizes the ASTM standard for limiting the scope of searches for recorded environmental cleanup liens to recorded land title records. The focus of the ASTM standard is to require searches of " reasonably ascertainable" records. See ASTM El 527 00 § 5.2.1. If EPA is to limit the cost of compliance with the AAI regulation, the Agency should not be requiring property owners to search records where there is little likelihood of finding information on environmental liens. The EPA preamble contains the cryptic claim that " in some instances, liens may be filed in places other than recorded land title records and therefore a comprehensive standard is necessary to match the scope intended by the statute." 69 Fed. Reg. at 52575. That may well be true, but EPA provides no indication where those other places may be located. If EPA believes that searching recorded land title records is insufficient, the final rule should provide specific information on what the property owner is looking for at these other places and where that information can be found.

Response: We advise that prospective landowners and grantees seek the advice of a local realtor, real estate attorney, title company, or other real estate professional. Environmental cleanup liens may be recorded as part of the land title records or as part of other state or local government land or real estate records. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located.

Commenter Organization Name: Intertox Comment Number: 0396 Excerpt Number: 12 437 Other Sections: NEW  3.3.2  Review of chain of title documents should be made a requirement Excerpt Text:  The proposed standards for searching for recorded environmental cleanup liens.

 Intertox agrees that the existence of an environmental lien may be an indicator of environmental concern. We also agree that this search is likely more easily accommodated by the purchaser or an agent of the purchaser. However, we believe the proposed rule should specifically identify title companies as the " agent of the purchaser." Title companies are the most experienced and most likely able to procure a recorded environmental lien. While it is true that recorded title documents are becoming more available online from county assessor offices, a title company is still the most qualified to obtain an environmental lien.

Response: While a title company may be the best option in many circumstances, it is not the only option and the decision on how to obtain this information remains with the prospective landowner or grantee.

Commenter Organization Name: CONNOR Comment Number: 0398 Excerpt Number: 6 Excerpt Text:  Subpart C  Standards and Practices, Part 312.25 ( Searches for recorded environmental cleanup liens), Subpart b "  must be provided to the Environmental Professional"  please identify who is responsible for collecting the information prior to providing it to the Environmental Professional.

Response: The decision of who conducts the search is best left up to the judgment of the prospective landowner or grantee and environmental professional. The final rule provides in § 312.22 that the search for recorded environmental cleanup liens can fall outside the inquiries conducted by the environmental professional. The search for recorded environmental cleanup liens is not included as part of the requirements governing the results of an inquiry by an environmental professional ( § 312.21). Therefore, the search may be conducted by the prospective landowner or grantee, his or her attorney or agent, or the environmental professional.

Commenter Organization Name: Dismukes, James Comment Number: 0416 Excerpt Number: 6 Other Sections: NEW  3.3  Review of historical sources of information Excerpt Text: 438 The need for a chain of title search and a property lien search, although not specifically called for the proposed rule, will be necessary to establish the past ownership and use to the degree called for under AAI. The average cost for a chain of title is between $ 250 to $ 500. This is a tremendous cost addition on a percentage basis for a Phase I and typically yields no useful information as to potential environmental issues to a property.

Response: The final rule does not require that any particular type of historical document be found or used for any particular property. Although a chain of title search may provide valuable information on previous ownership and uses of a property, the prospective landowner, grantee, and environmental professional may be able to find this information from other sources ( e. g., interviews with current and past owners, other government records). The rule allows for the environmental professional to use professional judgment when determining what types of historical documentation may provide the most useful information about a property's ownership, uses, and potential environmental conditions when seeking to comply with the objectives and performance factors for the inquiries.

The requirements to search historical records and environmental cleanup liens are not new requirements. These searches also are required in the ASTM E1527 2000 standard, therefore they do not represent incremental costs to the final rule.

Commenter Organization Name: Tryon, Bill Comment Number: 0418 Excerpt Number: 9 Excerpt Text: With respect to searches for environmental liens, I am not aware of any other reasonably ascertainable source to identify the existence of environmental liens if not recorded in land title records. EPA states that " in some instances, liens may be filed in places other than recorded land title records." The place of these filings, and the mechanism for obtaining this information does not appear to be known to the general public. Further, if an additional resource is required to be searched for every AAI conducted, the time and cost of doing so does not appear to have been factored into the economic analysis.

Therefore, it is my recommendation that EPA accept as " reasonably ascertainable" a search for environmental liens found in recorded land title records.

Response: Prospective landowners and grantees may want to seek the advice of a local realtor, real estate attorney, title company, or other real estate professional. Environmental cleanup liens may be recorded as part of the land title records or as part of other state or local government land or real estate records. Recorded environmental cleanup liens may be recorded in different places, depending upon the particular state and particular locality in which the property is located. 439 Commenter Organization Name: Westward Environmental Comment Number: 0429 Excerpt Number: 2 Excerpt Text: Regarding the heading of What Are the Proposed Requirements for Searching for Recorded Environmental Cleanup Liens? on page 52562 of the proposed rule:

 it states "  recorded environmental cleanup liens be performed either by the purchaser or through the inquiry of the environmental professional " and "  the search  may be more efficiently or most cost effectively performed by the purchaser or an agent of the purchaser."

 While the preceding statements may be true, the purchaser generally hires an Environmental Professional ( EP) to perform the necessary services to complete the All Appropriate Inquiries and would expect the EP to perform this service. Our concern is that the fee for this service is, at best, hard to predict and thus propose. The inclusion of researching environmental liens will result in substantially higher proposed fees for those EP's who are willing to include them in a proposal which could result in losing the job to a less " judicious" competitor.

Response: The decision of who conducts the search is best left up to the judgment of the prospective landowner or grantee and environmental professional. The final rule provides in § 312.22 that the search for recorded environmental cleanup liens can fall outside the inquiries conducted by the environmental professional. The search for recorded environmental cleanup liens is not included as part of the requirements governing the results of an inquiry by an environmental professional ( § 312.21). Therefore, the search may be conducted by the prospective landowner or grantee, his or her attorney or agent, or the environmental professional. 440 3.5 Review of Federal, State, Tribal, and Local Government Records Commenter Organization Name: City of Jacksonville, Florida Comment Number: 0095 Excerpt Number: 8 Excerpt Text: Some of the records searches are clearly unnecessary, e. g., delisted NPL sites. NPL sites extend to wherever the contamination migrated. They are not delisted until cleaned. If the site is delisted, it is irrelevant to an " all appropriate inquiry search." Similarly, " records of former CERCLIS sites with no further remedial action controls ( one half mile)" are irrelevant to the evaluation of a prospective brownfield site.

Overall, the records search is so far beyond what has long been recognized as commercially appropriate ( the standard EPA adopted in this negotiated rule making) that it unconscionable, especially when one considers that the failure to review a record could be grounds for EPA to denied liability exemption, and that records searches cost money. As costs mount, developers will find that greenfield development is much, much cheaper than brownfield development, killing the Brownfield Program.

Response: The requirements in the final rule to search government records are very similar to the records searches included in the ASTM E1527 2000 standard. Information on delisted NPL sites and former CERCLA sites may provide the prospective landowner with valuable information with regard to institutional or engineering controls that may be in place in or around the subject property. This information also could alert the environmental professional to look for evidence of residual contamination.

Liability protection would not be denied by EPA, but rather by a court and only after a preponderance of evidence shows that the property owner did not comply with the statutory criteria required for the protections. All appropriate inquiries represent only one of many criteria with which a property owner must comply in order to obtain the liability protections.

Commenter Organization Name: Worlund, John Comment Number: 0256 Excerpt Number: 10 Excerpt Text: While the proposed rule is very similar to the current ASTM practice, I feel that this is a missed opportunity to eliminate some of the data searches that typically prove to be of minor importance. That would include RCRA generators, which yields little information that couldn't be obtained from neighborhood observation and the ERNS list that is typically so limited in detail that it is useless. 441 Response: The final rule provides that the data collection efforts be conducted in conformance with the objectives and performance standards of 312.20 ( e) and 312.20( f). Although some of the required records searches may not be useful for all property types, the Agency believes that when considered in their entirety the list of government records provides a strong list of information sources for the variety of property types that may be subject to the all appropriate inquiries requirements.

Commenter Organization Name: Carvalho, Michael Comment Number: 0257 Excerpt Number: 2 Excerpt Text: EPA's proposed rule also requires that registries and publicly available lists of engineering and institutional controls be reviewed for all sites within one half mile of the subject site ( § 312.26). Apart from the fact that such lists are not currently available in a practically reviewable form, no comprehensive database for this information exists in most states or at the federal level. Most AAI practitioners recognize that the historic ( and largely political) failure of EPA to address Brownfields on a national level left states with little choice but to embark on their own experiments. In many cases, such experimentation fostered creative and critical thinking that lead to significant reforms. If adopted, EPA's proposed AAI Regulation will require states to rethink and re tool their processes and procedures for collecting and disseminating information relating to engineering and institutional controls. According to a national environmental data provider, EPA's Environmental Data Standard Council is setting out a standard for Institutional Control tracking and offering state agencies grant money to adopt the standard and create their own tracking systems. It is widely acknowledged that such a database is at least 5 years away  assuming that funding remains available. With the current fiscal crises in many states, there can be little disagreement that the proposed rule will materially impact existing state programs by creating significant resource allocation issues.

Response: The final rule requires that government records and available lists for institutional and engineering controls be searched only for information on such controls at the subject property. All appropriate inquiries investigations do not have to include searches for institutional and engineering controls in place at nearby and adjoining properties. We made this change because we agree with commenters who pointed out that information on institutional and engineering controls may be difficult to find as there are no available national sources of this information. Only a few states have available lists of institutional controls. In addition, the information that may be inferred from knowledge of institutional and engineering controls that are in place at adjoining and nearby properties, i. e., that there was a response action, a remedial action, or corrective action taken at the site, can be inferred from information obtained from other sources ( e. g., CERCLIS, RCRIS, state records of response actions).

Commenter Organization Name: FAA 442 Comment Number: 0334 Excerpt Number: 18 Excerpt Text: INSTITUTIONAL CONTROLS 1) Identifying institutional controls may or may not be useful in judging whether threatened or actual releases have occurred at a subject property or nearby properties. For example, if there are known institutional controls on drilling in an area, then the situation that led to the imposition of those controls would be recorded in federal or state databases anyway. FAA believes that the requirement for EPs to identify institutional controls on a subject property is redundant and should be removed from the proposed AAI regulations.

Response: It is important that prospective landowners obtain information on institutional and engineering controls in place at the property being acquired. It also may be important to locate information on such controls in place at nearby properties. To obtain the liability protections afforded under CERCLA ( i. e., innocent landowner, contiguous property owner, bona fide prospective purchaser), the statute requires, as part of the " continuing obligations," that the property owner comply with all land use restrictions and not impede the effectiveness of institutional controls. Therefore, it is important that information on institutional and engineering controls be obtained by prospective landowners, even though information about such controls may not have been routinely obtained as part of due diligence practices prior to today's final rule ( we note that the current interim standard does include provisions for searching for " activity and use limitations").

Commenter Organization Name: Montana DEQ Comment Number: 0335 Excerpt Number: 5 Excerpt Text: Proposed Section 312.20( d)( 2)( vi): Institutional controls may be in place on a property but not approved by a regulatory agency. DEQ believes that people may be mislead or have a false sense of protection if there are institutional controls on the property. DEQ believes EPA should include a disclaimer stating that the presence of an institutional control on the property does not equate to regulatory approval of those controls.