Environmental protection, Administrative practice and procedure,

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

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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

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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.