Environmental protection, Administrative practice and procedure, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements.
 
    Dated: October 21, 2005.
Stephen L. Johnson,
Administrator.
 
For reasons set out in the preamble, title 40, chapter I of the Code of 
Federal Regulations is amended by revising part 312 as follows:
 
PART 312--INNOCENT LANDOWNERS, STANDARDS FOR CONDUCTING ALL 
APPROPRIATE INQUIRIES
 
Subpart A--Introduction
Sec.
312.1 Purpose, applicability, scope, and disclosure obligations.
Subpart B--Definitions and References
312.10 Definitions.
312.11 References.
Subpart C--Standards and Practices
312.20 All appropriate inquiries.
312.21 Results of inquiry by an environmental professional.
312.22 Additional inquiries.
312.23 Interviews with past and present owners, operators, and occupants.
312.24 Reviews of historical sources of information.
312.25 Searches for recorded environmental cleanup liens.
312.26 Reviews of federal, state, tribal and local government records.
312.27 Visual inspections of the facility and of adjoining properties.
312.28 Specialized knowledge or experience on the part of the defendant.
312.29 The relationship of the purchase price to the value of the 
property, if the property was not contaminated.
312.30 Commonly known or reasonably ascertainable information about 
the property.
312.31 The degree of obviousness of the presence or likely presence 
of contamination at the property, and the ability to detect the 
contamination by appropriate investigation.
 
    Authority: Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 
9601(35)(B).
 
PART 312--INNOCENT LANDOWNERS, STANDARDS FOR CONDUCTING ALL 
APPROPRIATE INQUIRIES
 
Subpart A--Introduction
 
Sec.  312.1  Purpose, applicability, scope and disclosure obligations.
 
    (a) Purpose. The purpose of this section is to provide standards 
and practices for ``all appropriate inquiries'' for the purposes of 
CERCLA sections 101(35)(B)(i)(I) and 101(35)(B)(ii) and (iii).
    (b) Applicability. The requirements of this part are applicable to:
    (1) Persons seeking to establish:
    (i) The innocent landowner defense pursuant to CERCLA sections 
101(35) and 107(b)(3);
    (ii) The bona fide prospective purchaser liability protection 
pursuant to CERCLA sections 101(40) and 107(r);
    (iii) The contiguous property owner liability protection pursuant 
to CERCLA section 107(q); and
    (2) persons conducting site characterization and assessments with 
the use of a grant awarded under CERCLA section 104(k)(2)(B).
    (c) Scope. (1) Persons seeking to establish one of the liability 
protections under paragraph (b)(1) of this section must conduct 
investigations as required in this part, including an inquiry by an 
environmental professional, as required under Sec.  312.21, and the 
additional inquiries defined in Sec.  312.22, to identify
 
[[Page 66108]]
 
conditions indicative of releases or threatened releases, as defined in 
CERCLA section 101(22), of hazardous substances, as defined in CERCLA 
section 101(14).
    (2) Persons identified in paragraph (b)(2) of this section must 
conduct investigations required in this part, including an inquiry by 
an environmental professional, as required under Sec.  312.21, and the 
additional inquiries defined in Sec.  312.22, to identify conditions 
indicative of releases and threatened releases of hazardous substances, 
as defined in CERCLA section 101(22), and as applicable per the terms 
and conditions of the grant or cooperative agreement, releases and 
threatened releases of:
    (i) Pollutants and contaminants, as defined in CERCLA section 101(33);
    (ii) Petroleum or petroleum products excluded from the definition 
of ``hazardous substance'' as defined in CERCLA section 101(14); and
    (iii) Controlled substances, as defined in 21 U.S.C. 802.
    (d) Disclosure obligations. None of the requirements of this part 
limits or expands disclosure obligations under any federal, state, 
tribal, or local law, including the requirements under CERCLA sections 
101(40)(c) and 107(q)(1)(A)(vii) requiring persons, including 
environmental professionals, to provide all legally required notices 
with respect to the discovery of releases of hazardous substances. It 
is the obligation of each person, including environmental 
professionals, conducting the inquiry to determine his or her 
respective disclosure obligations under federal, state, tribal, and 
local law and to comply with such disclosure requirements.
 
Subpart B--Definitions and References
 
Sec.  312.10  Definitions.
 
    (a) Terms used in this part and not defined below, but defined in 
either CERCLA or 40 CFR part 300 (the National Oil and Hazardous 
Substances Pollution Contingency Plan) shall have the definitions 
provided in CERCLA or 40 CFR part 300.
    (b) When used in this part, the following terms have the meanings 
provided as follows:
    Abandoned property means: property 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.
    Adjoining properties means: any real property or properties the 
border of which is (are) shared in part or in whole with that of the 
subject property, or that would be shared in part or in whole with that 
of the subject property but for a street, road, or other public 
thoroughfare separating the properties.
    Data gap means: a lack of or inability to obtain information 
required by the standards and practices listed in subpart C of this 
part despite good faith efforts by the environmental professional or 
persons identified under Sec.  312.1(b), as appropriate, to gather such 
information pursuant to Sec. Sec.  312.20(e)(1) and 312.20(e)(2).
    Date of acquisition or purchase date means: the date on which a 
person acquires title to the property.
    Environmental Professional means:
    (1) a person who possesses sufficient specific education, training, 
and experience necessary to exercise professional judgment to develop 
opinions and conclusions regarding conditions indicative of releases or 
threatened releases (see Sec.  312.1(c)) on, at, in, or to a property, 
sufficient to meet the objectives and performance factors in Sec.  
312.20(e) and (f).
    (2) Such a person must:
    (i) Hold a current Professional Engineer's or Professional 
Geologist's license or registration from a state, tribe, or U.S. 
territory (or the Commonwealth of Puerto Rico) and have the equivalent 
of three (3) years of full-time relevant experience; or
    (ii) Be licensed or certified by the federal government, a state, 
tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to 
perform environmental inquiries as defined in Sec.  312.21 and have the 
equivalent of three (3) years of full-time relevant experience; or
    (iii) Have a Baccalaureate or higher degree from an accredited 
institution of higher education in a discipline of engineering or 
science and the equivalent of five (5) years of full-time relevant 
experience; or
    (iv) Have the equivalent of ten (10) years of full-time relevant 
experience.
    (3) An environmental professional should remain current in his or 
her field through participation in continuing education or other 
activities.
    (4) The definition of environmental professional provided above 
does not preempt state professional licensing or registration 
requirements such as those for a professional geologist, engineer, or 
site remediation professional. Before commencing work, a person should 
determine the applicability of state professional licensing or 
registration laws to the activities to be undertaken as part of the 
inquiry identified in Sec.  312.21(b).
    (5) A person who does not qualify as an environmental professional 
under the foregoing definition may assist in the conduct of all 
appropriate inquiries in accordance with this part if such person is 
under the supervision or responsible charge of a person meeting the 
definition of an environmental professional provided above when 
conducting such activities.
    Relevant experience, as used in the definition of environmental 
professional in this section, means: participation in the performance 
of all appropriate inquiries investigations, environmental site 
assessments, or other site investigations that may include 
environmental analyses, investigations, and remediation which involve 
the understanding of surface and subsurface environmental conditions 
and the processes used to evaluate these conditions and for which 
professional judgment was used to develop opinions regarding conditions 
indicative of releases or threatened releases (see Sec.  312.1(c)) to 
the subject property.
    Good faith means: the absence of any intention to seek an unfair 
advantage or to defraud another party; an honest and sincere intention 
to fulfill one's obligations in the conduct or transaction concerned.
    Institutional controls means: non-engineered instruments, such as 
administrative and/or legal controls, that help to minimize the 
potential for human exposure to contamination and/or protect the 
integrity of a remedy.
 
Sec.  312.11  References.
 
    The following industry standards may be used to comply with the 
requirements set forth in Sec. Sec.  312.23 through 312.31:
    (a) The procedures of ASTM International Standard E1527-05 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.''
    (b) [Reserved]
 
Subpart C--Standards and Practices
 
Sec.  312.20  All appropriate inquiries.
 
    (a) ``All appropriate inquiries'' pursuant to CERCLA section 
101(35)(B) must be conducted within one year prior to the date of 
acquisition of the subject property and must include:
    (1) An inquiry by an environmental professional (as defined in 
Sec.  312.10), as provided in Sec.  312.21;
    (2) The collection of information pursuant to Sec.  312.22 by 
persons identified under Sec.  312.1(b); and
 
[[Page 66109]]
 
    (3) Searches for recorded environmental cleanup liens, as required 
in Sec.  312.25.
    (b) Notwithstanding paragraph (a) of this section, the following 
components of the all appropriate inquiries must be conducted or 
updated within 180 days of and prior to the date of acquisition of the 
subject property:
    (1) Interviews with past and present owners, operators, and 
occupants (see Sec.  312.23);
    (2) Searches for recorded environmental cleanup liens (see Sec.  
312.25);
    (3) Reviews of federal, tribal, state, and local government records 
(see Sec.  312.26);
    (4) Visual inspections of the facility and of adjoining properties 
(see Sec.  312.27); and
    (5) The declaration by the environmental professional (see Sec.  
312.21(d)).
    (c) All appropriate inquiries may include the results of and 
information contained in an inquiry previously conducted by, or on the 
behalf of, persons identified under Sec.  312.1(b) and who are 
responsible for the inquiries for the subject property, provided:
    (1) Such information was collected during the conduct of all 
appropriate inquiries in compliance with the requirements of CERCLA 
sections 101(35)(B), 101(40)(B) and 107(q)(A)(viii);
    (2) Such information was collected or updated within one year prior 
to the date of acquisition of the subject property;
    (3) Notwithstanding paragraph (b)(2) of this section, the following 
components of the inquiries were conducted or updated within 180 days 
of and prior to the date of acquisition of the subject property:
    (i) Interviews with past and present owners, operators, and 
occupants (see Sec.  312.23);
    (ii) Searches for recorded environmental cleanup liens (see Sec.  
312.25);
    (iii) Reviews of federal, tribal, state, and local government 
records (see Sec.  312.26);
    (iv) Visual inspections of the facility and of adjoining properties 
(see Sec.  312.27); and
    (v) The declaration by the environmental professional (see Sec.  
312.21(d)).
    (4) Previously collected information is updated to include relevant 
changes in the conditions of the property and specialized knowledge, as 
outlined in Sec.  312.28, of the persons conducting the all appropriate 
inquiries for the subject property, including persons identified in 
Sec.  312.1(b) and the environmental professional, defined in Sec.  312.10.
 
    (d) All appropriate inquiries can include the results of report(s) 
specified in Sec.  312.21(c), that have been prepared by or for other 
persons, provided that:
    (1) The report(s) meets the objectives and performance factors of 
this regulation, as specified in paragraphs (e) and (f) of this 
section; and
    (2) The person specified in Sec.  312.1(b) and seeking to use the 
previously collected information reviews the information and conducts 
the additional inquiries pursuant to Sec. Sec.  312.28, 312.29 and 
312.30 and the all appropriate inquiries are updated in paragraph 
(b)(3) of this section, as necessary.
    (e) Objectives. The standards and practices set forth in this part 
for All Appropriate Inquiries are intended to result in the 
identification of conditions indicative of releases and threatened 
releases of hazardous substances on, at, in, or to the subject property.
    (1) In performing the all appropriate inquiries, as defined in this 
section and provided in the standards and practices set forth this 
subpart, the persons identified under Sec.  312.1(b)(1) and the 
environmental professional, as defined in Sec.  312.10, must seek to 
identify through the conduct of the standards and practices set forth 
in this subpart, the following types of information about the subject 
property:
    (i) Current and past property uses and occupancies;
    (ii) Current and past uses of hazardous substances;
    (iii) Waste management and disposal activities that could have 
caused releases or threatened releases of hazardous substances;
    (iv) Current and past corrective actions and response activities 
undertaken to address past and on-going releases of hazardous substances;
    (v) Engineering controls;
    (vi) Institutional controls; and
    (vii) Properties adjoining or located nearby the subject property 
that have environmental conditions that could have resulted in 
conditions indicative of releases or threatened releases of hazardous 
substances to the subject property.
    (2) In the case of persons identified in Sec.  312.1(b)(2), the 
standards and practices for All Appropriate Inquiries set forth in this 
part are intended to result in the identification of conditions 
indicative of releases and threatened releases of hazardous substances, 
pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802) on, at, in, or to 
the subject property. In performing the all appropriate inquiries, as 
defined in this section and provided in the standards and practices set 
forth in this subpart, the persons identified under Sec.  312.1(b) and 
the environmental professional, as defined in Sec.  312.10, must seek 
to identify through the conduct of the standards and practices set 
forth in this subpart, the following types of information about the 
subject property:
    (i) Current and past property uses and occupancies;
    (ii) Current and past uses of hazardous substances, pollutants, 
contaminants, petroleum and petroleum products, and controlled 
substances (as defined in 21 U.S.C. 802);
    (iii) Waste management and disposal activities;
    (iv) Current and past corrective actions and response activities 
undertaken to address past and on-going releases of hazardous 
substances pollutants, contaminants, petroleum and petroleum products, 
and controlled substances (as defined in 21 U.S.C. 802);
    (v) Engineering controls;
    (vi) Institutional controls; and
    (vii) Properties adjoining or located nearby the subject property 
that have environmental conditions that could have resulted in 
conditions indicative of releases or threatened releases of hazardous 
substances, pollutants, contaminants, petroleum and petroleum products, 
and controlled substances (as defined in 21 U.S.C. 802) to the subject 
property.
    (f) Performance factors. In performing each of the standards and 
practices set forth in this subpart and to meet the objectives stated 
in paragraph (e) of this section, the persons identified under Sec.  
312.1(b) or the environmental professional as defined in Sec.  312.10 
(as appropriate to the particular standard and practice) must seek to:
    (1) Gather the information that is required for each standard and 
practice listed in this subpart that is publicly available, obtainable 
from its source within reasonable time and cost constraints, and which 
can practicably be reviewed; and
    (2) Review and evaluate the thoroughness and reliability of the 
information gathered in complying with each standard and practice 
listed in this subpart taking into account information gathered in the 
course of complying with the other standards and practices of this subpart.
    (g) To the extent there are data gaps (as defined in Sec.  312.10) 
in the information developed as part of the inquiries in paragraph (e) 
of this section that affect the ability of persons (including the 
environmental professional) conducting the all
 
[[Page 66110]]
 
appropriate inquiries to identify conditions indicative of releases or 
threatened releases in each area of inquiry under each standard and 
practice such persons should identify such data gaps, identify the 
sources of information consulted to address such data gaps, and comment 
upon the significance of such data gaps with regard to the ability to 
identify conditions indicative of releases or threatened releases of 
hazardous substances [and in the case of persons identified in Sec.  
312.1(b)(2), hazardous substances, pollutants, contaminants, petroleum 
and petroleum products, and controlled substances (as defined in 21 
U.S.C. 802)]
on, at, in, or to the subject property. Sampling and 
analysis may be conducted to develop information to address data gaps.
    (h) Releases and threatened releases identified as part of the all 
appropriate inquiries should be noted in the report of the inquiries. 
These standards and practices however are not intended to require the 
identification in the written report prepared pursuant to Sec.  
312.21(c) of quantities or amounts, either individually or in the 
aggregate, of hazardous substances pollutants, contaminants, petroleum 
and petroleum products, and controlled substances (as defined in 21 
U.S.C. 802) that because of said quantities and amounts, generally 
would not pose a threat to human health or the environment.
 
Sec.  312.21  Results of inquiry by an environmental professional.
 
    (a) Persons identified under Sec.  312.1(b) must undertake an 
inquiry, as defined in paragraph (b) of this section, by an 
environmental professional, or conducted under the supervision or 
responsible charge of, an environmental professional, as defined in 
Sec.  312.10. Such inquiry is hereafter referred to as ``the inquiry of 
the environmental professional.''
    (b) The inquiry of the environmental professional must include the 
requirements set forth in Sec. Sec.  312.23 (interviews with past and 
present owners * * *), 312.24 (reviews of historical sources * * *), 
312.26 (reviews of government records), 312.27 (visual inspections), 
312.30 (commonly known or reasonably ascertainable information), and 
312.31 (degree of obviousness of the presence * * * and the ability to 
detect the contamination * * *). In addition, the inquiry should take 
into account information provided to the environmental professional as 
a result of the additional inquiries conducted by persons identified in 
Sec.  312.1(b) and in accordance with the requirements of Sec.  312.22.
    (c) The results of the inquiry by an environmental professional 
must be documented in a written report that, at a minimum, includes the 
following:
    (1) An opinion as to whether the inquiry has identified conditions 
indicative of releases or threatened releases of hazardous substances 
[and in the case of inquiries conducted for persons identified in Sec.  
312.1(b)(2) conditions indicative of releases and threatened releases 
of pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802)]
on, at, in, or to 
the subject property;
    (2) An identification of data gaps (as defined in Sec.  312.10) in 
the information developed as part of the inquiry that affect the 
ability of the environmental professional to identify conditions 
indicative of releases or threatened releases of hazardous substances 
[and in the case of inquiries conducted for persons identified in Sec.  
312.1(b)(2) conditions indicative of releases and threatened releases 
of pollutants, contaminants, petroleum and petroleum products, and 
controlled substances (as defined in 21 U.S.C. 802)]
on, at, in, or to 
the subject property and comments regarding the significance of such 
data gaps on the environmental professional's ability to provide an 
opinion as to whether the inquiry has identified conditions indicative 
of releases or threatened releases on, at, in, or to the subject 
property. If there are data gaps such that the environmental 
professional cannot reach an opinion regarding the identification of 
conditions indicative of releases and threatened releases, such data 
gaps must be noted in the environmental professional's opinion in 
paragraph (c)(1) of this section; and
    (3) The qualifications of the environmental professional(s).
    (d) The environmental professional must place the following 
statements in the written document identified in paragraph (c) of this 
section and sign the document:
 
    ``[I, We]
declare that, to the best of [my, our]
professional 
knowledge and belief, [I, we]
meet the definition of Environmental 
Professional as defined in Sec.  312.10 of this part.''
    ``[I, We]
have the specific qualifications based on education, 
training, and experience to assess a property of the nature, 
history, and setting of the subject property. [I, We]
have developed 
and performed the all appropriate inquiries in conformance with the 
standards and practices set forth in 40 CFR Part 312.''
 
Sec.  312.22  Additional inquiries.
 
    (a) Persons identified under Sec.  312.1(b) must conduct the 
inquiries listed in paragraphs (a)(1) through (a)(4) below and may 
provide the information associated with such inquiries to the 
environmental professional responsible for conducting the activities 
listed in Sec.  312.21:
    (1) As required by Sec.  312.25 and if not otherwise obtained by 
the environmental professional, environmental cleanup liens against the 
subject property that are filed or recorded under federal, tribal, 
state, or local law;
    (2) As required by Sec.  312.28, specialized knowledge or 
experience of the person identified in Sec.  312.1(b);
    (3) As required by Sec.  312.29, the relationship of the purchase 
price to the fair market value of the subject property, if the property 
was not contaminated; and
    (4) As required by Sec.  312.30, and if not otherwise obtained by 
the environmental professional, commonly known or reasonably 
ascertainable information about the subject property.
 
Sec.  312.23  Interviews with past and present owners, operators, and 
occupants.
 
    (a) Interviews with owners, operators, and occupants of the subject 
property must be conducted for the purposes of achieving the objectives 
and performance factors of Sec.  312.20(e) and (f).
    (b) The inquiry of the environmental professional must include 
interviewing the current owner and occupant of the subject property. If 
the property has multiple occupants, the inquiry of the environmental 
professional shall include interviewing major occupants, as well as 
those occupants likely to use, store, treat, handle or dispose of 
hazardous substances [and in the case of inquiries conducted for 
persons identified in Sec.  312.1(b)(2) pollutants, contaminants, 
petroleum and petroleum products, and controlled substances (as defined 
in 21 U.S.C. 802)], or those who have likely done so in the past.
    (c) The inquiry of the environmental professional also must 
include, to the extent necessary to achieve the objectives and 
performance factors of Sec.  312.20(e) and (f), interviewing one or 
more of the following persons:
    (1) Current and past facility managers with relevant knowledge of 
uses and physical characteristics of the property;
    (2) Past owners, occupants, or operators of the subject property; 
or
    (3) Employees of current and past occupants of the subject property.
    (d) In the case of inquiries conducted at ``abandoned properties,'' 
as defined in Sec.  312.10, where there is evidence of potential 
unauthorized uses of the subject property or evidence of
 
[[Page 66111]]
 
uncontrolled access to the subject property, the environmental 
professional'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 factors of Sec.  
312.20(e) and (f).
 
Sec.  312.24  Reviews of historical sources of information.
 
    (a) Historical documents and records must be reviewed for the 
purposes of achieving the objectives and performance factors of Sec.  
312.20(e) and (f). Historical documents and records may include, but 
are not limited to, aerial photographs, fire insurance maps, building 
department records, chain of title documents, and land use records.
    (b) 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. For the purpose of achieving the 
objectives and performance factors of Sec.  312.20(e) and (f), 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.
 
Sec.  312.25  Searches for recorded environmental cleanup liens.
 
    (a) All appropriate inquiries must include a search for the 
existence of environmental cleanup liens against the subject property 
that are filed or recorded under federal, tribal, state, or local law.
    (b) All information collected regarding the existence of such 
environmental cleanup liens associated with the subject property by 
persons to whom this part is applicable per Sec.  312.1(b) and not by 
an environmental professional, may be provided to the environmental 
professional or retained by the applicable party.
 
Sec.  312.26  Reviews of Federal, State, Tribal, and local government 
records.
 
    (a) Federal, tribal, state, and local government records or data 
bases of government records of the subject property and adjoining 
properties must be reviewed for the purposes of achieving the 
objectives and performance factors of Sec.  312.20(e) and (f).
    (b) With regard to the subject property, the review of federal, 
tribal, and state government records or data bases of such government 
records and local government records and data bases of such records 
should include:
    (1) Records of reported releases or threatened releases, including 
site investigation reports for the subject property;
    (2) Records of activities, conditions, or incidents likely to cause 
or contribute to releases or threatened releases as defined in Sec.  
312.1(c), including landfill and other disposal unit location records 
and permits, storage tank records and permits, hazardous waste handler 
and generator records and permits, federal, tribal and state government 
listings of sites identified as priority cleanup sites, and spill 
reporting records;
    (3) CERCLIS records;
    (4) Public health records;
    (5) Emergency Response Notification System records;
    (6) Registries or publicly available lists of engineering controls; 
and
    (7) Registries or publicly available lists of institutional 
controls, including environmental land use restrictions, applicable to 
the subject property.
    (c) With regard to nearby or adjoining properties, the review of 
federal, tribal, state, and local government records or databases of 
government records should include the identification of the following:
    (1) Properties for which there are government records of reported 
releases or threatened releases. Such records or databases containing 
such records and the associated distances from the subject property for 
which such information should be searched include the following:
    (i) Records of NPL sites or tribal- and state-equivalent sites (one 
mile);
    (ii) RCRA facilities subject to corrective action (one mile);
    (iii) Records of federally-registered, or state-permitted or 
registered, hazardous waste sites identified for investigation or 
remediation, such as sites enrolled in state and tribal voluntary 
cleanup programs and tribal- and state-listed brownfields sites (one-
half mile);
    (iv) Records of leaking underground storage tanks (one-half mile); 
and
    (2) Properties that previously were identified or regulated by a 
government entity due to environmental concerns at the property. Such 
records or databases containing such records and the associated 
distances from the subject property for which such information should 
be searched include the following:
    (i) Records of delisted NPL sites (one-half mile);
    (ii) Registries or publicly available lists of engineering controls 
(one-half mile); and
    (iii) Records of former CERCLIS sites with no further remedial 
action notices (one-half mile).
    (3) Properties for which there are records of federally-permitted, 
tribal-permitted or registered, or state-permitted or registered waste 
management activities. Such records or data bases that may contain such 
records include the following:
    (i) Records of RCRA small quantity and large quantity generators 
(adjoining properties);
    (ii) Records of federally-permitted, tribal-permitted, or state-
permitted (or registered) landfills and solid waste management 
facilities (one-half mile); and
    (iii) Records of registered storage tanks (adjoining property).
    (4) A review of additional government records with regard to sites 
identified under paragraphs (c)(1) through (c)(3) of this section may 
be necessary in the judgment of the environmental professional for the 
purpose of achieving the objectives and performance factors of Sec.  
312.20(e) and (f).
    (d) The search distance from the subject property boundary for 
reviewing government records or databases of government records listed 
in paragraph (c) of this section may be modified based upon the 
professional judgment of the environmental professional. The rationale 
for such modifications must be documented by the environmental 
professional. The environmental professional may consider one or more 
of the following factors in determining an alternate appropriate search 
distance:
    (1) The nature and extent of a release;
    (2) Geologic, hydrogeologic, or topographic conditions of the 
subject property and surrounding environment;
    (3) Land use or development densities;
    (4) The property type;
    (5) Existing or past uses of surrounding properties;
    (6) Potential migration pathways (e.g., groundwater flow direction, 
prevalent wind direction); or
    (7) Other relevant factors.
 
Sec.  312.27  Visual inspections of the facility and of adjoining 
properties.
 
    (a) For the purpose of achieving the objectives and performance 
factors of Sec.  312.20(e) and (f), the inquiry of the environmental 
professional must include:
    (1) A visual on-site inspection of the subject property and 
facilities and improvements on the subject property,
 
[[Page 66112]]
 
including a visual inspection of the areas where hazardous substances 
may be or may have been used, stored, treated, handled, or disposed. 
Physical limitations to the visual inspection must be noted.
    (2) A visual inspection of adjoining properties, from the subject 
property line, public rights-of-way, or other vantage point (e.g., 
aerial photography), including a visual inspection of areas where 
hazardous substances may be or may have been stored, treated, handled 
or disposed. Physical limitations to the inspection of adjacent 
properties must be noted.
    (b) Persons conducting site characterization and assessments using 
a grant awarded under CERCLA section 104(k)(2)(B) must include in the 
inquiries referenced in Sec.  312.27(a) visual inspections of areas 
where hazardous substances, and may include, as applicable per the 
terms and conditions of the grant or cooperative agreement, pollutants 
and contaminants, petroleum and petroleum products, and controlled 
substances as defined in 21 U.S.C. 802 may be or may have been used, 
stored, treated, handled or disposed at the subject property and 
adjoining properties.
    (c) Except as noted in this subsection, a visual on-site inspection 
of the subject property must be conducted. In the unusual circumstance 
where an on-site visual inspection of the subject property cannot be 
 
performed because of physical limitations, remote and inaccessible 
location, or other inability to obtain access to the property, provided 
good faith (as defined in Sec.  312.10) efforts have been taken to 
obtain such access, an on-site inspection will not be required. The 
mere refusal of a voluntary seller to provide access to the subject 
property does not constitute an unusual circumstance. In such unusual 
circumstances, the inquiry of the environmental professional must include:
    (1) Visually inspecting the subject property via another method 
(such as aerial imagery for large properties), or visually inspecting 
the subject property from the nearest accessible vantage point (such as 
the property line or public road for small properties);
    (2) Documentation of efforts undertaken to obtain access and an 
explanation of why such efforts were unsuccessful; and
    (3) Documentation of other sources of information regarding 
releases or threatened releases at the subject property that were 
consulted in accordance with Sec.  312.20(e). Such documentation should 
include comments by the environmental professional on the significance 
of the failure to conduct a visual on-site inspection of the subject 
property with regard to the ability to identify conditions indicative 
of releases or threatened releases on, at, in, or to the subject 
property, if any.
 
Sec.  312.28  Specialized knowledge or experience on the part of the 
defendant.
 
    (a) Persons to whom this part is applicable per Sec.  312.1(b) must 
take into account, their specialized knowledge of the subject property, 
the area surrounding the subject property, the conditions of adjoining 
properties, and any other experience relevant to the inquiry, for the 
purpose of identifying conditions indicative of releases or threatened 
releases at the subject property, as defined in Sec.  312.1(c).
    (b) All appropriate inquiries, as outlined in Sec.  312.20, are not 
complete unless the results of the inquiries take into account the 
relevant and applicable specialized knowledge and experience of the 
persons responsible for undertaking the inquiry (as described in Sec.  
312.1(b)).
 
Sec.  312.29  The relationship of the purchase price to the value of 
the property, if the property was not contaminated.
 
    (a) Persons to whom this part is applicable per Sec.  312.1(b) must 
consider whether the purchase price of the subject property reasonably 
reflects the fair market value of the property, if the property were 
not contaminated.
    (b) Persons who conclude that the purchase price of the subject 
property does not reasonably reflect the fair market value of that 
property, if the property were not contaminated, must consider whether 
or not the differential in purchase price and fair market value is due 
to the presence of releases or threatened releases of hazardous substances.
    (c) Persons conducting site characterization and assessments with 
the use of a grant awarded under CERCLA section 104(k)(2)(B) and who 
know that the purchase price of the subject property does not 
reasonably reflect the fair market value of that property, if the 
property were not contaminated, must consider whether or not the 
differential in purchase price and fair market value is due to the 
presence of releases or threatened releases of hazardous substances, 
pollutants, contaminants, petroleum and petroleum products, or 
controlled substances as defined in 21 U.S.C. 802.
 
Sec.  312.30  Commonly known or reasonably ascertainable information 
about the property.
 
    (a) Throughout the inquiries, persons to whom this part is 
applicable per Sec.  312.1(b) and environmental professionals 
conducting the inquiry must take into account commonly known or 
reasonably ascertainable information within the local community about 
the subject property and consider such information when seeking to 
identify conditions indicative of releases or threatened releases, as 
set forth in Sec.  312.1(c), at the subject property.
    (b) Commonly known information may include information obtained by 
the person to whom this part applies in Sec.  312.1(b) or by the 
environmental professional about releases or threatened releases at the 
subject property that is incidental to the information obtained during 
the inquiry of the environmental professional.
    (c) To the extent necessary to achieve the objectives and 
performance factors of Sec.  312.20(e) and (f), persons to whom this 
part is applicable per Sec.  312.1(b) and the environmental 
professional must gather information from varied sources whose input 
either individually or taken together may provide commonly known or 
reasonably ascertainable information about the subject property; the 
environmental professional may refer to one or more of the following 
sources of information:
    (1) Current owners or occupants of neighboring properties or 
properties adjacent to the subject property;
    (2) Local and state government officials who may have knowledge of, 
or information related to, the subject property;
    (3) Others with knowledge of the subject property; and
    (4) Other sources of information (e.g., newspapers, Web sites, 
community organizations, local libraries and historical societies).
 
Sec.  312.31  The degree of obviousness of the presence or likely 
presence of contamination at the property, and the ability to detect 
the contamination by appropriate investigation.
 
    (a) Persons to whom this part is applicable per Sec.  312.1(b) and 
environmental professionals conducting an inquiry of a property on 
behalf of such persons must take into account the information collected 
under Sec.  312.23 through 312.30 in considering the degree of 
obviousness of the presence of releases or threatened releases at the 
subject property.
    (b) Persons to whom this part is applicable per Sec.  312.1(b) and
 
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environmental professionals conducting an inquiry of a property on 
behalf of such persons must take into account the information collected 
under Sec.  312.23 through 312.30 in considering the ability to detect 
contamination by appropriate investigation. The inquiry of the 
environmental professional should include an opinion regarding 
additional appropriate investigation, if any.