Standards and Practices for All Appropriate Inquiries, 66070-66113 [05-21455]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Rules and Regulations]
[Pages 66070-66113]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21455]



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Part III





Environmental Protection Agency





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40 CFR Part 312



Standards and Practices for All Appropriate Inquiries; Final Rule

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / 
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[SFUND-2004-0001; FRL-7989-7]
RIN 2050-AF04


Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) today is 
establishing federal standards and practices for conducting all 
appropriate inquiries as required under sections 101(35)(B)(ii) and 
(iii) of the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA). Today's final rule establishes specific 
regulatory requirements and standards for conducting all appropriate 
inquiries into the previous ownership and uses of a property for the 
purposes of meeting the all appropriate inquiries provisions necessary 
to qualify for certain landowner liability protections under CERCLA. 
The standards and practices also will be applicable to persons 
conducting site characterization and assessments with the use of grants 
awarded under CERCLA section 104(k)(2)(B).

DATES: This final rule is effective November 1, 2006.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
SFUND-2004-0001. All documents in the docket are listed in the EDOCKET 
index at https://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., information labeled 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the EPA Docket Center, EPA West Building, Room B102, 1301 
Constitution Ave., NW., Washington, DC. This docket facility is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OSWER Docket is (202) 566-
0276.

FOR FURTHER INFORMATION CONTACT: For further information on specific 
aspects of today's rule, contact Patricia Overmeyer of EPA's Office of 
Brownfields Cleanup and Redevelopment at (202) 566-2774 or at 
overmeyer.patricia@epa.gov. Mail inquiries may be directed to the 
Office of Brownfields Cleanup and Redevelopment (5105T), 1200 
Pennsylvania Ave. NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Who Potentially May be Affected by Today's Rule?

    This regulation may affect most directly those persons and 
businesses purchasing commercial property or any property that will be 
used for commercial or public purposes and who may, after purchasing 
the property, seek to claim protection from CERCLA liability for 
releases or threatened releases of hazardous substances. Under 
section101(35)(B) of CERCLA, as amended by the Small Business Liability 
Relief and Brownfields Revitalization Act (Pub. L. 107-118, 115 stat. 
2356, ``the Brownfields Amendments'') such persons and businesses are 
required to conduct all appropriate inquiries prior to or on the date 
on which the property is acquired. Prospective landowners who do not 
conduct all appropriate inquiries prior to or on the date of obtaining 
ownership of the property may lose their ability to claim protection 
from CERCLA liability as an innocent landowner, bona fide prospective 
purchaser, or contiguous property owner.
    In addition, today's rule will affect any party who receives a 
brownfields grant awarded under CERCLA section 104(k)(2)(B) and uses 
the grant money to conduct site characterization or assessment 
activities. This includes state, local and tribal governments that 
receive brownfields site assessment grants for the purpose of 
conducting site characterization and assessment activities. Such 
parties are required under CERCLA section 104(k)(2)(B)(ii) to conduct 
such activities in compliance with the standards and practices 
established by EPA for the conduct of all appropriate inquiries. EPA 
notes that today's rule also may affect other parties who apply for 
brownfields grants under the provisions of CERCLA section 104(k), since 
such parties may have to qualify as a bona fide prospective purchaser 
to ensure compliance with the statutory prohibitions on the use of 
grant funds under Section 104(k)(4)(B)(I). Any party seeking liability 
protection as a bona fide prospective purchaser, including eligible 
brownfields grantees, must conduct all appropriate inquiries prior to 
or on the date of acquiring a property.
    The background document, ``Economic Impacts Analysis for the 
Proposed All Appropriate Inquiries Final Regulation'' and the Addendum 
to this document provide a comprehensive analysis of all potentially 
impacted entities. These documents are available in the docket 
established for today's rule. A summary of potentially affected 
businesses is provided in the table below.
    Our aim in the table below is to provide a guide for readers 
regarding entities likely to be directly regulated or indirectly 
affected by today's action. This action, however, may affect other 
entities not listed in the table. To determine whether you or your 
business is regulated or affected by this action, you should examine 
the regulatory language amending CERCLA. This language is found at the 
end of this Federal Register notice. If you have questions regarding 
the applicability of this action to a particular entity, consult the 
person listed in the preceding section entitled FOR FURTHER INFORMATION 
CONTACT.

------------------------------------------------------------------------
                                                                  NAICS
                       Industry category                          code
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Manufacturing.................................................     31-33
Wholesale Trade...............................................        42
Retail Trade..................................................     44-45
Finance and Insurance.........................................        52
Real Estate...................................................       531
Professional, Scientific and Technical Services...............       541
Accommodation and Food Services...............................        72
Repair and Maintenance........................................       811
Personal and Laundry Services.................................       812
State, Local and Tribal Government............................       N/A
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B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA established an official public docket for this 
action under Docket ID No. SFUND-2004-0001. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to today's 
action. Although a part of the official docket, the public docket does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Documents in the 
official public docket are listed in the index list in EPA's electronic 
public docket and comment system, EDOCKET. Documents may be available 
either electronically or in hard copy. Electronic documents may be 
viewed through EDOCKET. Hard copy

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documents may be viewed at the EPA Docket Center, EPA West, Room B102, 
1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OSWER 
Docket is (202) 566-0276.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at https://www.epa.gov/fedrgstr.
    An electronic version of the public docket also is available 
through EPA's electronic public docket and comment system, EDOCKET. You 
may use EDOCKET at https://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the public docket, and 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.
    Certain types of information will not be placed in EDOCKET. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Docket materials 
that are not available electronically may be viewed at the docket 
facility identified above.

Contents of Today's Rule

I. Statutory Authority
II. Background
    A. What is the Intent of Today's Rule?
    B. What is ``All Appropriate Inquiries?''
    C. What were the Previous Standards for All Appropriate 
Inquiries?
    D. What are the Liability Protections Established Under the 
Brownfields Amendments?
    E. What Criteria Did Congress Establish for the All Appropriate 
Inquiries Standard?
III. Summary of Comments and Changes From Proposed Rule to Final 
Rule
IV. Detailed Description of Today's Rule
    A. What is the Purpose and Scope of the Rule?
    B. To Whom is the Rule Applicable?
    C. Does the Final Rule Include Any New Reporting or Disclosure 
Obligations?
    D. What are the Final Documentation Requirements?
    E. What are the Qualifications for an Environmental 
Professional?
    F. References
    G. What is Included in ``All Appropriate Inquiries?''
    H. Who is Responsible for Conducting the All Appropriate 
Inquiries?
    I. When Must All Appropriate Inquiries be Conducted?
    J. Can a Prospective Landowner Use Information Collected for 
Previous Inquiries Completed for the Same Property?
    K. Can All Appropriate Inquiries be Conducted by One Party and 
Transferred to Another Party?
    L. What Are the Objectives and Performance Factors for the All 
Appropriate Inquiries Requirements?
    M. What are Institutional Controls?
    N. How must Data Gaps Be Addressed in the Conduct of All 
Appropriate Inquiries?
    O. Do Small Quantities of Hazardous Substances That Do Not Pose 
Threats to Human Health and the Environment Have to Be Identified in 
the Inquiries?
    P. What are the Requirements for Interviewing Past and Present 
Owners, Operators, and Occupants?
    Q. What are the Requirements for Reviews of Historical Sources 
of Information?
    R. What are the Requirements for Searching for Recorded 
Environmental Cleanup Liens?
    S. What are the Requirements for Reviewing Federal, State, 
Tribal, and Local Government Records?
    T. What are the Requirements for Visual Inspections of the 
Subject Property and Adjoining Properties?
    U. What are the Requirements for the Inclusion of Specialized 
Knowledge or Experience on the Part of the ``Defendant?''
    V. What are the Requirements for the Relationship of the 
Purchase Price to the Value of the Property, if the Property was not 
Contaminated?
    W. What are the Requirements for Commonly Known or Reasonably 
Ascertainable Information about the Property?
    X. What are the Requirements for ``the Degree of Obviousness of 
the Presence or Likely Presence of Contamination at the Property, 
and the Ability to Detect the Contamination by Appropriate 
Investigation?''
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Statutory Authority

    These regulations are promulgated under the authority of Section 
101(35)(B) of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (42 U.S.C. 9601), as amended, most 
importantly by the Small Business Liability Relief and Brownfields 
Revitalization Act.

II. Background

A. What is the Intent of Today's Rule?

    On August 26, 2004, EPA published a notice of proposed rulemaking 
outlining proposed standards and practices for the conduct of ``all 
appropriate inquiries.'' This regulatory action was initiated in 
response to legislative amendments to the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA). On January 11, 
2002, President Bush signed the Small Business Liability Relief and 
Brownfields Revitalization Act (Pub. L. 107-118, 115 Stat. 2356, ``the 
Brownfields Amendments''). The Brownfields Amendments amend CERCLA by 
providing funds to assess and clean up brownfields sites, clarifying 
CERCLA liability provisions for certain landowners, and providing 
funding to enhance state and tribal cleanup programs. The intent of 
today's rule is to finalize regulations setting federal standards and 
practices for the conduct of all appropriate inquiries, a key provision 
of the Brownfields Amendments. Subtitle B of Title II of the 
Brownfields Amendments revises CERCLA section 101(35), clarifying the 
requirements necessary to establish the innocent landowner defense. In 
addition, the Brownfields Amendments add protections from CERCLA 
liability for bona fide prospective purchasers and contiguous property 
owners who meet certain statutory requirements.
    Each of the CERCLA liability provisions for innocent landowners, 
bona fide prospective purchasers, and contiguous property owners, 
requires that, among other requirements, persons claiming the liability 
protections conduct all appropriate inquiries into prior ownership and 
use of a property prior to or on the date a person acquires a property. 
The law requires EPA to develop regulations establishing standards and 
practices for how to conduct all appropriate inquiries. Congress 
included in the Brownfields Amendments a list of criteria that the 
Agency must address in the regulations establishing standards and 
practices for conducting all appropriate inquiries

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section 101(35)(2)(B)(ii) and (iii). The Brownfields Amendments also 
require that parties receiving a federal brownfields grant awarded 
under CERCLA section 104(k)(2)(B) to conduct site characterizations and 
assessments must conduct these activities in accordance with the 
standards and practices for all appropriate inquiries.
    The regulations established today only address the all appropriate 
inquiries provisions of CERCLA sections 101(35)(B)(i)(I) and 
101(35)(B)(ii) and (iii). Today's rule does not address the 
requirements of CERCLA section 101(35)(B)(i)(II) for what constitutes 
``reasonable steps.''

B. What is ``All Appropriate Inquiries?''

    An essential step in real property transactions may be evaluating a 
property for potential environmental contamination and assessing 
potential liability for contamination present at the property. The 
process for assessing properties for the presence or potential presence 
of environmental contamination often is referred to as ``environmental 
due diligence,'' or ``environmental site assessment.'' The 
Comprehensive Environmental Response Compensation and Liability Act 
(CERCLA) or Superfund, provides for a similar, but legally distinct, 
process referred to as ``all appropriate inquiries.''
    Under CERCLA, persons may be held strictly liable for cleaning up 
hazardous substances at properties that they either currently own or 
operate or owned or operated at the time of disposal. Strict liability 
in the context of CERCLA means that a potentially responsible party may 
be liable for environmental contamination based solely on property 
ownership and without regard to fault or negligence.
    In 1986, the Superfund Amendments and Reauthorization Act ( Pub. L. 
No. 99-499, 100 stat. 1613, ``SARA'') amended CERCLA by creating an 
``innocent landowner'' defense to CERCLA liability. The new section 
101(35)(B) of CERCLA provided a defense to CERCLA liability, for those 
persons who could demonstrate, among other requirements, that they 
``did not know and had no reason to know'' prior to purchasing a 
property that any hazardous substance that is the subject of a release 
or threatened release was disposed of on, in, or at the property. Such 
persons, to demonstrate that they had ``no reason to know'' must have 
undertaken, prior to, or on the date of acquisition of the property, 
``all appropriate inquiries'' into the previous ownership and uses of 
the property consistent with good commercial or customary standards and 
practices. The 2002 Brownfields Amendments added potential liability 
protections for ``contiguous property owners'' and ``bona fide 
prospective purchasers'' who also must demonstrate they conducted all 
appropriate inquiries, among other requirements, to benefit from the 
liability protection.

C. What Were the Previous Standards for All Appropriate Inquiries?

    As part of the Brownfields Amendments to CERCLA, Congress 
established interim standards for the conduct of all appropriate 
inquiries. The federal interim standards established by Congress became 
effective on January 11, 2002. In the case of properties purchased 
after May 31, 1997, the interim standards include the procedures of the 
ASTM Standard E1527-97 (entitled ``Standard Practice for Environmental 
Site Assessments: Phase 1 Environmental Site Assessment Process''). In 
the case of persons who purchased property prior to May 31, 1997 and 
who are seeking to establish an innocent landowner defense or qualify 
as a contiguous property owner, CERCLA provides that such persons must 
establish, among other statutory requirements, that at the time they 
acquired the property, they did not know and had no reason to know of 
releases or threatened releases to the property. To establish they did 
not know and had no reason to know of releases or threatened releases, 
persons who purchased property prior to May 31, 1997 must demonstrate 
that they carried out all appropriate inquiries into the previous 
ownership and uses of the property in accordance with generally 
accepted good commercial and customary standards and practices.
    In the case of property acquired by a non-governmental entity or 
non-commercial entity for residential or other similar uses, the 
current interim standards for all appropriate inquiries may not be 
applicable. For those cases, the Brownfields Amendments to CERCLA 
establish that a ``facility inspection and title search that reveal no 
basis for further investigation shall be considered to satisfy the 
requirements' for all appropriate inquiries. In addition, such 
properties are not within the scope of today's rule.
    The interim standards remain in effect only until the effective 
date of today's rule which promulgates federal regulations establishing 
standards and practices for conducting all appropriate inquiries.
    On May 9, 2003, EPA published a final rule (68 FR 24888) clarifying 
that for the purposes of achieving the all appropriate inquiries 
standards of CERCLA section 101(35)(B), and until the effective date of 
today's regulation, persons who purchase property on or after May 31, 
1997 could use either the procedures provided in ASTM E1527-2000, 
entitled ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process,'' or the earlier standard 
cited by Congress in the Brownfields Amendments, ASTM E1527-97.
    Today's notice is a final rule and as such replaces the current 
interim standards for all appropriate inquiries established by Congress 
in the Brownfields Amendments and clarified by EPA in the May 9, 2003 
final rule. Since the Agency is promulgating a final rule establishing 
federal regulations containing the standards and practices for 
conducting all appropriate inquiries, the interim standard will no 
longer be the operative standard for conducting all appropriate 
inquiries upon November 1, 2006, the effective date of today's rule. 
Until November 1, 2006, both the standards and practices included in 
today's final regulation and the current interim standards established 
by Congress for all appropriate inquiries will be recognized by EPA as 
satisfying the statutory requirements for the conduct of all 
appropriate inquiries under section 101(35)(B) of CERCLA.

D. What are the Liability Protections Established Under the Brownfields 
Amendments?

    The Brownfields Amendments provide important liability protections 
for landowners who qualify as contiguous property owners, bona fide 
prospective purchasers, or innocent landowners. To meet the statutory 
requirements for any of these landowner liability protections, a 
landowner must meet certain threshold requirements and satisfy certain 
continuing obligations. To qualify as a bona fide prospective 
purchaser, contiguous property owner, or innocent landowner, a person 
must perform ``all appropriate inquiries'' on or before the date on 
which the person acquired the property. Bona fide prospective 
purchasers and contiguous property owners also must demonstrate that 
they are not potentially liable or affiliated with any other person 
that is potentially liable for response costs at the property. In the 
case of contiguous property owners, the landowner claiming to be a 
contiguous property owner also must demonstrate that he did not cause, 
contribute, or consent to any release or threatened release of 
hazardous substances. To meet the statutory requirements for a bona 
fide

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prospective purchaser, a property owner must have acquired a property 
subsequent to any disposal activities involving hazardous substances at 
the property.
    Continuing obligations required under the statute include complying 
with land use restrictions and not impeding the effectiveness or 
integrity of institutional controls; taking ``reasonable steps'' with 
respect to hazardous substances affecting a landowner's property to 
prevent releases; providing cooperation, assistance and access to EPA, 
a state, or other party conducting response actions or natural resource 
restoration at the property; complying with CERCLA information requests 
and administrative subpoenas; and providing legally required notices. 
For a more detailed discussion of these threshold and continuing 
requirements please see EPA, Interim Guidance Regarding Criteria 
Landowners Must Meet in Order to Qualify for Bona Fide Prospective 
Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations 
on CERCLA Liability (Common Elements, 2003). A copy of this document is 
available in the docket for today's rule.
    EPA notes that, as explained below, persons conducting all 
appropriate inquiries in compliance with today's final rule are not 
entitled to the CERCLA liability protections provided for innocent 
landowners, bona fide prospective purchasers, and contiguous property 
owners, unless they also comply with all of the continuing obligations 
established under the statute. As explained below, compliance with 
today's final rule is only one requirement necessary for CERCLA 
liability protection. We also note that the requirements of today's 
rule apply to prospective property owners who are seeking protection 
from liability under the federal Superfund Law (CERCLA). Prospective 
property owners wishing to establish protection from, or a defense to, 
liability under state superfund or other related laws must comply with 
the all criteria established under state laws, including any criteria 
for conducting site assessments or all appropriate inquiries 
established under applicable state statutes or regulations.
1. Bona Fide Prospective Purchaser
    The Brownfields Amendments added a new bona fide prospective 
purchaser provision at CERCLA section 107(r). The provision provides 
protection from CERCLA liability, and limits EPA's recourse for 
unrecovered response costs to a lien on property for the lesser of the 
unrecovered response costs or increase in fair market value 
attributable to EPA's response action. To meet the statutory 
requirements for a bona fide prospective purchaser, a person must meet 
the requirements set forth in CERCLA sections 101(40) and 107(r). A 
bona fide prospective purchaser must have bought property after January 
11, 2002 (the date of enactment of the Brownfields Amendments). A bona 
fide prospective purchaser may purchase property with knowledge of 
contamination after performing all appropriate inquiries, provided the 
property owner meets or complies with all of the other statutory 
requirements set forth in CERCLA section 101(40). Conducting all 
appropriate inquiries alone does not provide a landowner with 
protection against CERCLA liability. Landowners who want to qualify as 
bona fide prospective purchasers must comply with all of the statutory 
requirements. The statutory requirements include, without limitation, 
that the landowner must:
     Have acquired a property after all disposal of hazardous 
substances at the property ceased;
     Provide all legally required notices with respect to the 
discovery or release of any hazardous substances at the property;
     Exercise appropriate care by taking reasonable steps to 
stop continuing releases, prevent any threatened future release, and 
prevent or limit human, environmental, or natural resources exposure to 
any previously released hazardous substance;
     Provide full cooperation, assistance, and access to 
persons that are authorized to conduct response actions or natural 
resource restorations;
     Comply with land use restrictions established or relied on 
in connection with a response action;
     Not impede the effectiveness or integrity of any 
institutional controls;
     Comply with any CERCLA request for information or 
administrative subpoena; and
     Not be potentially liable, or affiliated with any other 
person who is potentially liable for response costs for addressing 
releases at the property.
    Persons claiming to be bona fide prospective purchasers should keep 
in mind that failure to identify an environmental condition or identify 
a release or threatened release of a hazardous substance on, at, in or 
to a property during the conduct of all appropriate inquiries does not 
relieve a landowner from complying with the other post-acquisition 
statutory requirements for obtaining the liability protections. 
Landowners must comply with all the statutory requirements to obtain 
the liability protection. For example, an inability to identify a 
release or threatened release during the conduct of all appropriate 
inquiries does not negate the landowner's responsibilities under the 
statute to take reasonable steps to stop a release, prevent a 
threatened release, and prevent exposure to any previous release once 
any release is identified. Compliance with the other statutory 
requirements for the bona fide prospective purchaser liability 
protection is not contingent upon the findings of all appropriate 
inquiries.
2. Contiguous Property Owner
    The Brownfields Amendments added a new contiguous property owner 
provision at CERCLA section 107(q). This provision excludes from the 
definition of ``owner'' or ``operator'' under CERCLA section 107(a)(1) 
and (2) a person who owns property that is ``contiguous to, or 
otherwise similarly situated with respect to, and that is or may be 
contaminated by a release or threatened release of a hazardous 
substance from'' property owned by someone else. To qualify as a 
contiguous property owner, a landowner must have no knowledge or reason 
to know of contamination at the time of acquisition, have conducted all 
appropriate inquiries, and meet all of the criteria set forth in CERCLA 
section 107(q)(1)(A), which include, without limitation:
     Not causing, contributing, or consenting to the release or 
threatened release;
     Not being potentially liable nor affiliated with any other 
person who is potentially liable for response costs at the property;
     Taking reasonable steps to stop continuing releases, 
prevent any threatened release, and prevent or limit human, 
environmental, or natural resource exposure to any hazardous substances 
released on or from the landowner's property;
     Providing full cooperation, assistance, and access to 
persons that are authorized to conduct response actions or natural 
resource restorations;
     Complying with land use restrictions established or relied 
on in connection with a response action;
     Not impeding the effectiveness or integrity of any 
institutional controls;
     Complying with any CERCLA request for information or 
administrative subpoena;
     Providing all legally required notices with respect to 
discovery or release of any hazardous substances at the property.
    The contiguous property owner liability protection ``protects 
parties that

[[Page 66074]]

are essentially victims of pollution incidents caused by their 
neighbor's actions.'' S. Rep. No. 107-2, at 10 (2001). Contiguous 
property owners must perform all appropriate inquiries prior to 
purchasing property. However, performing all appropriate inquiries in 
accordance with the regulatory requirements alone is not sufficient to 
assert the liability protections afforded under CERCLA. Property owners 
must fully comply with all of the statutory requirements to be afforded 
the contiguous property owner liability protection. Persons who know, 
or have reason to know, that the property is or could be contaminated 
at the time of acquisition of a property cannot qualify for the 
liability protection as a contiguous property owner, but may be 
entitled to bona fide prospective purchaser status.
    Persons claiming to be contiguous property owners should keep in 
mind that failure to identify an environmental condition or identify a 
release or threatened release of a hazardous substance on, at, in or to 
a property during the conduct of all appropriate inquiries, does not 
relieve a landowner from complying with the other statutory 
requirements for obtaining the contiguous landowner liability 
limitation. Landowners must comply with all the statutory requirements 
to qualify for the liability protections. For example, an inability to 
identify a release or threatened release during the conduct of all 
appropriate inquiries does not negate the landowner's responsibilities 
under the statute to take reasonable steps to stop the release, prevent 
a threatened release, and prevent exposure to previous releases once a 
release is identified. None of the other statutory requirements for the 
contiguous property owner liability protection is contingent upon the 
results of the conduct of all appropriate inquiries.
3. Innocent Landowner
    The Brownfields Amendments also clarify the innocent landowner 
defense. To qualify as an innocent landowner, a person must conduct all 
appropriate inquiries and meet all of the statutory requirements. The 
requirements include, without limitation:
     Having no knowledge or reason to know that any hazardous 
substance which is the subject of a release or threatened release was 
disposed of on, in, or at the facility;
     Providing full cooperation, assistance and access to 
persons authorized to conduct response actions at the property;
     Complying with any land use restrictions and not impeding 
the effectiveness or integrity of any institutional controls;
     Taking reasonable steps to stop continuing releases, 
prevent any threatened release, and prevent or limit human, 
environmental, or natural resource exposure to any previously released 
hazardous substances;
    To successfully assert an innocent landowner liability defense, a 
property owner must demonstrate compliance with CERCLA section 
107(b)(3) as well. Such persons must establish, by a preponderance of 
the evidence:
     That the release or threat of release of hazardous 
substances and the resulting damages were caused by an act or omission 
of a third party with whom the person does not have employment, agency, 
or a contractual relationship;
     The person exercised due care with respect to the 
hazardous substance concerned, taking into consideration the 
characteristics of such hazardous substance, in light of all relevant 
facts and circumstances;
     Took precautions against foreseeable acts or omissions of 
any such third party and the consequences that could foreseeably result 
from such acts or omissions.
    Like contiguous property owners, innocent landowners must perform 
all appropriate inquiries prior to or on the date of acquisition of a 
property and cannot know, or have reason to know, of contamination to 
qualify for this landowner liability protection. Persons claiming to be 
innocent landowners also should keep in mind that failure to identify 
an environmental condition or identify a release or threatened release 
of a hazardous substance on, at, in or to a property during the conduct 
of all appropriate inquiries, does not relieve or exempt a landowner 
from complying with the other statutory requirements for asserting the 
innocent landowner defense. Landowners must comply with all the 
statutory requirements to obtain the defense. For example, an inability 
to identify a release or threatened release during the conduct of all 
appropriate inquiries does not negate the landowner's responsibilities 
under the statute to take reasonable steps to stop the release, prevent 
a threatened release, and prevent exposure to a previous release. 
Compliance with the other statutory requirements for the innocent 
landowner defense is not contingent upon the results of an all 
appropriate inquiries investigation.

E. What Criteria Did Congress Establish for the All Appropriate 
Inquiries Standard?

    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. In addition to 
providing these criteria in the statute, Congress instructed EPA to 
develop regulations establishing standards and practices for conducting 
all appropriate inquiries in accordance with generally accepted good 
commercial and customary standards and practices. The criteria are set 
forth in CERCLA section 101(35)(2)(B)(iii) and include:
     The results of an inquiry by an environmental 
professional.
     Interviews with past and present owners, operators, and 
occupants of the facility for the purpose of gathering information 
regarding the potential for contamination at the facility.
     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.
     Searches for recorded environmental cleanup liens against 
the facility that are filed under federal, state, or local law.
     Reviews of federal, state, and local government records, 
waste disposal records, underground storage tank records, and hazardous 
waste handling, generation, treatment, disposal, and spill records, 
concerning contamination at or near the facility.
     Visual inspections of the facility and of adjoining 
properties.
     Specialized knowledge or experience on the part of the 
defendant.
     The relationship of the purchase price to the value of the 
property, if the property was not contaminated.
     Commonly known or reasonably ascertainable information 
about the property.
     The degree of obviousness of the presence or likely 
presence of contamination at the property, and the ability to detect 
the contamination by appropriate investigation.

III. Summary of Comments and Changes From Proposed Rule to Final Rule

    EPA received over 400 public comments in response to the August 26, 
2004 proposed rule. Comments were received from environmental 
consultants with experience in performing site assessments, trade

[[Page 66075]]

associations, state government agencies, environmental interest groups, 
and other public interest associations. Commenters generally supported 
the purpose and goals of the proposed rule. Many commenters 
complimented the Agency on its decision to develop the proposed rule 
using the negotiated rulemaking process. However, commenters had 
differing views on certain aspects of the proposed rule. In particular, 
the Agency received widely differing views on the proposed definition 
of ``environmental professional.'' Although many commenters supported 
the definition as proposed, other commenters raised concerns regarding 
the stringency of the proposed qualifications. A significant number of 
commenters applauded the proposed definition of an environmental 
professional and stated that it may increase the rigor and caliber of 
environmental site investigations. Commenters who would not qualify as 
an environmental professional under the proposed definition raised 
concerns with regard to the specific qualifications proposed.
    EPA received a significant number of comments regarding the 
statutory requirements for qualifying for the CERCLA liability 
protections. Several commenters also raised concerns with regard to the 
performance-based approach to the all appropriate inquiries 
investigation included in the proposed rule. Commenters were concerned 
that the proposed performance-based approach would make it more 
difficult to qualify for the CERCLA liability protections than an 
approach that requires strict adherence to prescriptive data gathering 
requirements that do not allow for the application of professional 
judgment. However, the vast majority of commenters who commented on the 
performance-based nature of the proposed rule supported the proposed 
approach.
    Other commenters raised concerns with regard to the proposed rule's 
requirements to identify and comment upon the significance of ``data 
gaps'' where the lack of information may affect the ability of an 
environmental professional to render an opinion regarding conditions at 
a property that are indicative of releases or threatened releases of 
hazardous substances. Commenters were concerned that if any data gaps 
exist potential contamination would not be identified, allowing 
property owners to escape liability for contamination. Other commenters 
supported the proposed requirement to identify data gaps, or missing 
information, that may affect the environmental professional's ability 
to render an opinion regarding the environmental conditions at a 
property and comment on their significance in this regard and stated 
that the requirement would lend credibility to the inquiry's final 
report.
    We received many comments on the proposed provision to compare the 
purchase price of a property to the fair market value of the property 
(if the property were not contaminated). One concern raised is that 
commenters believe that the exact market value of a property is 
difficult to determine. Some commenters took exception to the fact that 
EPA did not propose that prospective landowners have to conduct formal 
real estate appraisals of the property to determine fair market value. 
Although this provision has been a statutory requirement for the 
conduct of all appropriate inquiries since 1986, some commenters 
thought the requirement should not be included within the scope of all 
appropriate inquiries. Other commenters stated that the environmental 
professional should not be required to undertake the comparison.
    We received some comments on the results of the economic impact 
analysis that was conducted to assess the potential costs and impacts 
of the proposed rule. Many commenters generally agreed with the 
Agency's conclusion that the average incremental cost increase 
associated with the requirements in the proposed rule over the current 
industry standard would be minimal. However, some commenters asserted 
that EPA underestimated the incremental costs associated with the 
proposed rule. Although a few commenters mentioned particular 
activities included as requirements in the proposed rule that would 
increase the burdens and costs associated with conducting all 
appropriate inquiries, most of these commenters did not provide 
specific reasons for claimed cost increases over baseline activities. 
Some commenters simply stated that the proposed requirements would 
result in an increase in the price of phase I environmental site 
assessments. We provide a summary of the comments received on the 
economic impact analysis for the proposed rule, our responses to issues 
raised by commenters, and the results of some additional analyses 
conducted based on some of the issues raised, in an addendum to the 
economic impact analysis, which is provided in the docket for today's 
final rule.
    In section IV of this preamble, we discuss the requirements of the 
final rule, including a summary of the provisions included in the 
August 26, 2004 proposed rule, the significant comments raised in 
response to the proposed provisions, and a summary of our rationale for 
the final rule requirements. Generally, the final rule closely 
resembles the provisions included in the proposed rule. We adopted 
relatively minor changes in response to public comments. For example, 
we received a number of comments urging EPA to modify the proposed 
definition of environmental professional to allow individuals who have 
significant experience in conducting environmental site assessments, 
but do not have a Baccalaureate degree, to qualify as environmental 
professionals. We were convinced by the arguments presented in many of 
these public comments. Therefore, the definition of an environmental 
professional included in today's final rule allows individuals with ten 
years of relevant full time experience to qualify as an environmental 
professional for the purpose of overseeing and performing all 
appropriate inquiries.
    With respect to the proposed requirements governing the use of 
previously-conducted environmental site assessments for a particular 
property, we agreed with commenters who pointed out the proposed rule 
was unclear. In today's final rule, we modify the proposed rule 
language to allow for the use of information contained in previously-
conducted assessments, even if the information was collected more than 
a year prior to the date on which the subject property is acquired. The 
final rule does require that all aspects of a site assessment, or all 
appropriate inquiries investigation, completed more than one year prior 
to the date of acquisition of the subject property be updated to 
reflect current conditions and current property-specific information. 
In the case of all appropriate inquiries investigations completed less 
than one year prior to the date of acquisition of the subject property 
but more than 180 days before the acquisition date, the final rule 
retains the requirements of the proposed rule that only certain aspects 
of the all appropriate inquiries must be updated.
    In the case of the requirement to search for institutional controls 
that was included in the proposed requirements to review federal, 
state, tribal and local government records, we agreed with commenters 
who pointed out that searching for institutional controls associated 
with properties located within a half mile of the subject property is 
overly burdensome and without sufficient benefit to the purpose of the 
investigation. The final rule

[[Page 66076]]

requires that the search for institutional controls be confined to the 
subject property only.
    We adopted one other change in the final rule, based upon public 
comments. In the proposed rule, we delineated responsibilities for 
particular aspects of the all appropriate inquiries investigation 
between the environmental professional and the prospective landowner of 
the subject property (or grantee). We defined the inquiry of the 
environmental professional to include: interviews with past and present 
owners, operators and occupants; reviews of historical sources of 
information; reviews of federal state tribal and local government 
records; visual inspections of the facility and adjoining property; 
commonly known or reasonably ascertainable information; and degree of 
obviousness of the presence or likely presence of contamination at the 
property and the ability to detect the contamination by appropriate 
investigation. We also defined ``additional inquiries'' that must be 
conducted by the prospective landowner or grantee (or an individual on 
the prospective landowner's or grantee's behalf). These ``additional 
inquiries'' include: specialized knowledge or experience of the 
prospective landowner (or grantee); the relationship of the purchase 
price to the fair market value of the property, if the property was not 
contaminated; and commonly known or reasonably ascertainable 
information. The requirement to search for environmental cleanup liens 
was proposed to be the responsibility of the prospective landowner (or 
grantee), if the search is not conducted by the environmental 
professional. The proposed rule required the prospective landowner (or 
grantee) to provide all information collected as part of the 
``additional inquiries'' to the environmental professional.
    The final rule retains the proposed delineation of 
responsibilities. However, based upon the input provided in public 
comments, the final rule does not require the prospective landowner (or 
grantee) to provide the information collected as part of the 
``additional inquiries'' to the environmental professional. Although we 
continue to believe that the information collected or held by the 
prospective landowner (or grantee) should be provided to the 
environmental professional overseeing the other aspects of the all 
appropriate inquiries, we agree with commenters who asserted that 
prospective landowners and grantees should not be required to provide 
this information to the environmental professional. Commenters argued 
that property owners (and grantees) may want to hold some information 
(e.g., the purchase price of the property) confidential. CERCLA 
liability rests with the owner or operator of a property and not with 
an environmental professional hired by the prospective landowner and 
who is not involved with the ownership or operation of the property. 
Since it ultimately is up to the owner or operator of a property to 
defend his or herself against any claims to liability, we agree with 
commenters that asserted that the regulations should not require that 
prospective landowners (or grantees) provide information collected to 
comply with the ``additional inquiries'' provisions to the 
environmental professional. Should the required information not be 
provided to the environmental professional, the environmental 
professional should assess the impact that the lack of such information 
may have on his or her ability to render an opinion with regard to 
conditions indicative of releases or threatened releases of hazardous 
substances on, at, in or to the property. If the lack of information 
does impact the ability of the environmental professional to render an 
opinion with regard to the environmental conditions of the property, 
the environmental professional should note the missing information as a 
data gap in the written report. We discuss each of the requirements of 
the final rule in Section IV of this preamble.

IV. Detailed Description of Today's Rule

A. What Is the Purpose and Scope of the Rule?

    The purpose of today's rule is to establish federal standards and 
practices for the conduct of all appropriate inquiries. Such inquiries 
must be conducted by persons seeking any of the landowner liability 
protections under CERCLA prior to acquiring a property (as outlined in 
Section II.D. of this preamble). In addition, persons receiving federal 
brownfields grants under the authorities of CERCLA section 104(k)(2)(B) 
to conduct site characterizations and assessments must conduct such 
activities in compliance with the all appropriate inquiries 
regulations.
    In the case of persons claiming one of the CERCLA landowner 
liability protections, the scope of today's rule includes the conduct 
of all appropriate inquiries for the purpose of identifying releases 
and threatened releases of hazardous substances on, at, in or to the 
property that would be the subject of a response action for which a 
liability protection would be needed and such a property is owned by 
the person asserting protection from liability. CERCLA liability is 
limited to releases and threatened releases of hazardous substances 
which cause the incurrence of response costs. Therefore, in the case of 
all appropriate inquiries conducted for the purpose of qualifying for 
protection from CERCLA liability (CERCLA section 107), the scope of the 
inquiries is to identify releases and threatened releases of hazardous 
substances which cause or threaten to cause the incurrence of response 
costs.
    In the case of persons receiving Federal brownfields grants to 
conduct site characterizations and assessments, the scope of the all 
appropriate inquiries standards and practices may be broader. The 
Brownfields Amendments include a definition of a ``brownfield site'' 
that includes properties contaminated or potentially contaminated with 
substances not included in the definition of ``hazardous substance'' in 
CERCLA section 101(14). Brownfields sites include properties 
contaminated with (or potentially contaminated with) hazardous 
substances, petroleum and petroleum products, controlled substances, 
and pollutants and contaminants (as defined in CERCLA section 101(33)). 
Therefore, in the case of persons receiving federal brownfields grant 
monies to conduct site assessment and characterization activities at 
brownfields sites, the scope of the all appropriate inquiries may 
include these other substances, as outlined in Sec.  312.1(c)(2), to 
ensure that persons receiving brownfields grants can appropriately and 
fully assess the properties as required. It is not the case that every 
recipient of a brownfields assessment grant has to include within the 
scope of the all appropriate inquiries petroleum and petroleum 
products, controlled substances and CERCLA pollutants and contaminants 
(as defined in CERCLA section 101(33)). However, in those cases where 
the terms and conditions of the grant or the cooperative agreement with 
the grantee designate a broader scope to the investigation (beyond 
CERCLA hazardous substances), then the scope of the all appropriate 
inquiries should include the additional substances or contaminants.
    The scope of today's rule does not include property purchased by a 
non-governmental entity or non-commercial entity for ``residential use 
or other similar uses * * * [where] a facility inspection and title 
search * * * reveal no basis for further investigation.'' (Pub. L. 107-
118 Sec.  223). CERCLA section

[[Page 66077]]

101(35)(B)(v) states that in those cases, title search and facility 
inspection that reveal no basis for further investigation shall satisfy 
the requirements for all appropriate inquiries.
    We note that today's rule does not affect the existing CERCLA 
liability protections for state and local governments that acquire 
ownership to properties involuntarily in their functions as sovereigns, 
pursuant to CERCLA sections 101(20)(D) and 101(35)(A)(ii). Involuntary 
acquisition of properties by state and local governments fall under 
those CERCLA provisions and EPA's policy guidance on those provisions, 
not under the all appropriate inquiry provisions of CERCLA section 
101(35)(B).

B. To Whom Is the Rule Applicable?

    Today's rule applies to any person who may seek the landowner 
liability protections of CERCLA as an innocent landowner, contiguous 
property owner, or bona fide prospective purchaser. The statutory 
requirements to obtain each of these landowner liability protections 
include the conduct of all appropriate inquiries. In addition, the rule 
applies to individuals receiving Federal grant monies under CERCLA 
section 104(k)(2)(B) to conduct site characterization and assessment 
activities. Persons receiving such grant monies must conduct the site 
characterization and assessment in compliance with the all appropriate 
inquiries regulatory requirements.

C. Does the Final Rule Include Any New Reporting or Disclosure 
Obligations?

    The final rule does not include any new reporting or disclosure 
obligations. The rule only applies to those property owners who may 
seek the landowner liability protections provided under CERCLA for 
innocent landowners, contiguous property owners or bona fide 
prospective purchasers. The documentation requirements included in this 
rule are primarily intended to enhance the inquiries by requiring the 
environmental professional to record the results of the inquiries and 
his or her conclusions regarding conditions indicative of releases and 
threatened releases on, at, in, or to the property and to provide a 
record of the environmental professional's inquiry. Today's rule 
contains no new requirements to notify or submit information to EPA or 
any other government entity.
    Although today's rule does not include any new disclosure 
requirements, CERCLA section 103 does require persons in charge of 
vessels and facilities, including on-shore and off-shore facilities, to 
notify the National Response Center of any release of a hazardous 
substance from the vessel or facility in a quantity equal to or greater 
than a ``reportable quantity,'' as defined in CERCLA section 102(b). 
Today's rule includes no changes to this reporting requirement nor any 
changes to any other reporting or disclosure requirements under 
federal, tribal, or state law.

D. What Are the Final Documentation Requirements?

    The proposed rule required that the environmental professional, on 
behalf of the property owner, document the results of the all 
appropriate inquiries in a written report. As explained in the preamble 
to the proposed rule, the property owner could use this report to 
document the results of the inquiries. Such a report can be similar in 
nature to the type of report previously provided under generally 
accepted commercial practices. We proposed no requirements regarding 
the length, structure, or specific format of the written report. In 
addition, the proposed rule did not require that a written report of 
any kind be submitted to EPA or any other government agency, or that a 
written report be maintained on-site at the subject property for any 
length of time.
    Today's final rule retains the requirements, as proposed, for 
documenting the results of the all appropriate inquiries investigation 
conducted under the supervision or responsible charge of an 
environmental professional. As noted above, the primary purpose of the 
documentation requirement is to enhance the inquiry of the 
environmental professional by requiring that the environmental 
professional record the results of the inquiries and his or her 
conclusions. The written report may allow any person claiming one of 
the CERCLA landowner liability protections to offer documentation in 
support of his or her claim that all appropriate inquiries were 
conducted in compliance with the federal regulations.\1\ The Agency 
notes that while today's final regulation does not require parties 
conducting all appropriate inquiries to retain the written report or 
any other documentation discovered, consulted, or created in the course 
of conducting the inquiries, the retention of such documentation and 
records may be helpful should the property owner need to assert 
protection from CERCLA liability after purchasing a property.
---------------------------------------------------------------------------

    \1\ Nothing in this regulation or preamble is intended to 
suggest that any particular documentation prepared in conducting all 
appropriate inquiries will be admissible in court in any litigation 
where a party raises one of the liability protections, or will in 
any way alter the judicial rules of evidence.
---------------------------------------------------------------------------

    The final rule requires that a written report documenting the 
results of the all appropriate inquiries include an opinion of an 
environmental professional as to whether the all appropriate inquiries 
conducted identified conditions indicative of releases or threatened 
releases of hazardous substances on, at, in or to the subject property. 
The rule also requires that the report identify data gaps in the 
information collected that affect the ability of the environmental 
professional to render such an opinion and that the environmental 
professional comment on the significance of the data gaps.
    Several commenters raised issues with regard to the proposed 
requirement that the environmental professional document and comment on 
the significance of data gaps that affect the ability of the 
environmental professional to identify conditions indicative of 
releases or threatened releases of hazardous substances on at, in, or 
to the subject property. Some commenters stated that the need to 
identify data gaps will make it difficult to determine when an all 
appropriate inquiries investigation is complete and therefore the 
requirement would act as a disincentive to the development of 
potentially contaminated properties. Other commenters asserted that the 
fact that the regulations recognize data gaps creates a loophole that 
would result in property owners claiming to be protected from CERCLA 
liability after conducting an incomplete investigation that includes 
significant data gaps. These commenters raised concerns that CERCLA 
liability protection could be claimed by property owners simply because 
they conducted an all appropriate inquiries investigation, even in 
those cases where releases on, at, in, or to the property were missed 
during the investigation. Other commenters stated their support for the 
requirements to document data gaps, as proposed. A summary of EPA's 
response to these comments and the requirements for documenting data 
gaps included in the final rule is provided below in Section IV.N.
    The final rule, at Sec.  312.21(d), retains the proposed 
requirement that the environmental professional who conducts or 
oversees the all appropriate inquiries sign the written report. There 
are two purposes for the requirement to include a signature in the 
report. First, the individual signing the report must declare, on the 
signature page, that he or she meets the definition of an

[[Page 66078]]

environmental professional, as provided in Sec.  312.10. In addition, 
the rule requires that the environmental professional declare that: [I, 
We] have developed and performed the all appropriate inquiries in 
conformance with the standards and practices set forth in 40 CFR part 
312.
    Some commenters raised concerns about whether the proposed rule 
would require the environmental professional to certify the all 
appropriate inquiries report and its findings. Today's final rule does 
not require the environmental professional to ``certify'' the results 
of the all appropriate inquiries when signing the report. The two 
statements or declarations mentioned above and required to be included 
in the final written report documenting the conduct of all appropriate 
inquiries are meant to document that an individual meeting the 
qualifications of an environmental professional was involved in the 
conduct of the all appropriate inquiries and that the activities 
performed by, or under the supervision or responsible charge of, the 
environmental professional were performed in conformance with the 
regulations. Reports signed by individuals holding a Professional 
Engineer (P.E.) or Professional Geologist (P.G.) license, need not 
include the individual's professional seal.
    A few commenters requested that EPA include specific requirements 
for the content of a final report in the final rule. Given that the 
type and extent of information available on a particular property may 
vary greatly with its size, type, past uses, and location, and the type 
and extent of information necessary for an environmental professional 
to render an opinion regarding conditions indicative of releases or 
threatened releases of hazardous substances associated with any 
property may vary, we decided not to include in the final rule specific 
requirements governing the content of all reports.
    The provisions of the final rule allow for the property owner (or 
grantee) and any environmental professional engaged in the conduct of 
all appropriate inquiries for a specific property to design and develop 
the format and content of a written report that will meet the 
prospective landowner's (or grantee's) objectives and information needs 
in addition to providing documentation that all appropriate inquiries 
were completed prior to the acquisition of the property, should the 
landowner (or grantee) need to assert protection from liability after 
purchasing a property.

E. What Are the Qualifications for an Environmental Professional?

Proposed Rule
    In the Brownfields Amendments, Congress required that all 
appropriate inquiries include ``the results of an inquiry by an 
environmental professional'' (CERCLA section 101(35)(B)(iii)(I)). The 
proposed rule included minimal qualifications for persons managing or 
overseeing all appropriate inquiries. The intent of setting minimum 
professional qualifications, is to ensure that all inquiries are 
conducted at a high level of professional ability and ensure the 
overall quality of both the inquiries conducted and the conclusions or 
opinions rendered with regard to conditions indicative of the presence 
of a release or threatened release on, at, in, or to a property, based 
upon the results of all inquiries. The proposed rule required that an 
environmental professional conducting or overseeing all appropriate 
inquiries possess sufficient specific education, training, and 
experience necessary to exercise professional judgment to develop 
opinions and conclusions regarding the presence of releases or 
threatened releases of hazardous substances to the surface or 
subsurface of a property. In addition, the proposed rule included 
minimum qualifications, including minimum levels of education and 
experience, that characterize the type of professional who is best 
qualified to oversee and direct the development of comprehensive 
inquiries and provide the landowner with sound conclusions and opinions 
regarding the potential for releases or threatened releases to be 
present at the property. The proposed rule allowed for individuals not 
meeting the proposed definition of an environmental professional to 
contribute to and participate in the all approp