[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Rules and Regulations]
[Pages 78651-78655]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30536]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2008-0873; FRL-8755-6]
RIN 2050-AG47


Amendment to Standards and Practices for All Appropriate 
Inquiries Under CERCLA

AGENCY: Environmental Protection Agency (EPA).

[[Page 78652]]


ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the Standards and 
Practices for All Appropriate Inquiries to reference a standard 
practice recently made available by ASTM International, a widely 
recognized standards development organization. Specifically, this 
direct final rule amends the All Appropriate Inquiries Rule to 
reference ASTM International's E2247-08 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property'' and allow for its use to 
satisfy the statutory requirements for conducting all appropriate 
inquiries under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA).

DATES: This rule is effective on March 23, 2009, without further 
notice, unless EPA receives adverse comment by January 22, 2009. If EPA 
receives such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-HQ-
SFUND-2008-0873] by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: superfund.docket@epa.gov.
     Fax: 202-566-9744
     Mail: Superfund Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies.
     Hand Delivery: EPA Headquarters West Building, Room 3334, 
located at 1301 Constitution Ave., NW., Washington, DC. Such deliveries 
are only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The EPA Headquarters Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m. Eastern Standard Time, Monday 
through Friday, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2008-0873. Please reference Docket number EPA-HQ-SFUND-2008-0873 when 
submitting your comments.
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http:/
/www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
    Docket: You may use EPA Dockets at http://www.epa.gov/edocket/ to 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
docket identification number.
    All documents in the docket are listed in the http://
www.regulations.gov index. Certain types of information claimed as CBI, 
and other information whose disclosure is restricted by statute, will 
not be available for public viewing in EPA's electronic public docket. 
EPA's policy is that copyrighted material, such as ASTM Internationals' 
E2247-08 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process for Forestland or Rural 
Property'' will not be place in EPA's electronic public docket but will 
be publicly available only in printed form in the official public 
docket. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the HQ 
EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room at this docket facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Superfund Docket is 
(202) 566-9744.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing 
impaired). In the Washington, DC metropolitan area, call 703-412-9810 
or TDD 703-412-3323. For more detailed information on specific aspects 
of this rule, contact Patricia Overmeyer, Office of Brownfields and 
Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-566-2774, or 
overmeyer.patricia@epa.gov.

Regulated Entities

    Today's action offers certain parties the option of using an 
available industry standard to conduct all appropriate inquiries at 
certain properties. Parties purchasing large tracts (greater than 120 
acres) of forested land and parties purchasing large rural properties 
may use the ASTM E2247-08 standard practice to comply with the all 
appropriate inquiries requirements of CERCLA. Today's rule does not 
require any entity to use this standard. Any party who wants to claim 
protection from liability under CERCLA may follow the regulatory 
requirement of the All Appropriate Inquiries Final Rule at 40 CFR part 
312, or use the ASTM E1527-05 Standard Practice for Phase I 
Environmental Site Assessments to comply with the all appropriate 
inquiries provision of CERCLA.
    Entities potentially affected by this action, or who may choose to 
use the newly referenced ASTM standard to perform all appropriate 
inquiries, include public and private parties who, as bona fide 
prospective purchasers, contiguous property owners, or innocent 
landowners, are purchasing large tracts of forested lands or large 
rural properties and intend to claim a limitation on CERCLA liability 
in conjunction with the property purchase. In addition, any entity 
conducting a site characterization or assessment on a property that 
consists of large tracts of forested land or a large rural property 
with a brownfields grant awarded under CERCLA section104(k)(2)(B)(ii) 
may be affected by today's action. This includes State, local and 
Tribal governments that receive brownfields site assessment grants. A 
summary of the potentially affected industry sectors (by North American 
Industry Classification

[[Page 78653]]

System (NAICS) codes) is displayed in the table below.

------------------------------------------------------------------------
                  Industry category                        NAICS code
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Real Estate..........................................                531
Insurance............................................              52412
Banking/Real Estate Credit...........................              52292
Environmental Consulting Services....................              54162
State, Local and Tribal Government...................     926110, 925120
Federal Government...................................    925120, 921190,
                                                                  924120
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    The list of potentially affected entities in the above table may 
not be exhaustive. Our aim is to provide a guide for readers regarding 
those entities that EPA is aware potentially could be affected by this 
action. However, this action may affect other entities not listed in 
the table. 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.

Preamble

I. Statutory Authority
II. Background
III. This Action
IV. Administrative Requirements

I. Statutory Authority

    This direct final rule amends the All Appropriate Inquiries Final 
Rule setting federal standards for the conduct of ``all appropriate 
inquiry'' at 40 CFR part 312. The All Appropriate Inquiries Final Rule 
sets forth standards and practices necessary for fulfilling the 
requirements of CERCLA section 101(35)(B) as required to obtain CERCLA 
liability relief and for conducting site characterizations and 
assessments with the use of brownfields grants per CERCLA section 
104(k)(2)(B)(ii).

II. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act (``the Brownfields 
Amendments''). In general, the Brownfields Amendments to CERCLA provide 
funds to assess and clean up brownfields sites; clarifies CERCLA 
liability provisions related to innocent purchasers of contaminated 
properties; and provides funding to enhance State and Tribal cleanup 
programs. In part, subtitle B of the Brownfields Amendments revises 
some of the provisions of CERCLA section 101(35) and limits Superfund 
liability under section 107 for bona fide prospective purchasers and 
contiguous property owners, in addition to clarifying the requirements 
necessary to establish the innocent landowner defense under CERCLA. The 
Brownfields Amendments clarified the requirement that parties 
purchasing potentially contaminated property undertake ``all 
appropriate inquiry'' into prior ownership and use of property prior to 
purchasing the property in order to qualify for protection from CERCLA 
liability.
    The Brownfields Amendments required EPA to develop regulations 
establishing standards and practices for how to conduct all appropriate 
inquiries. EPA promulgated regulations that set standards and practices 
for all appropriate inquiries on November 1, 2005 (70 FR 66070). In the 
final regulation, EPA referenced, and recognized as compliant with the 
final rule, the ASTM E1527-05 ``Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Process. 
Therefore, the final rule (40 CFR part 312) allows for the use of the 
ASTM E1527-05 standard to conduct all appropriate inquiries, in lieu of 
following requirements included in the final rule.
    Since EPA promulgated the All Appropriate Inquiries Final Rule 
setting standards and practices for the conduct of all appropriate 
inquiries, ASTM International published a new Phase I site assessment 
standard specifically tailored to conducting site assessments of large 
tracts of rural and forestland property. This standard, ASTM E2247-08, 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property,'' was reviewed by EPA, in response to a request for its 
review by ASTM International, and determined by EPA to be compliant 
with the requirements of the All Appropriate Inquiries Final Rule.
    Today's direct final rule amends the All Appropriate Inquiries 
Final Rule to allow the use of the recently revised ASTM standard, 
E2247-08, for conducting all appropriate inquiries, as required under 
CERCLA for establishing the innocent landowner defense, as well as 
qualifying for the bona fide prospective purchaser and contiguous 
property owner liability protections.
    With today's action, EPA is establishing that, parties seeking 
liability relief under CERCLA's landowner liability protections, as 
well as recipients of brownfields grants for conducting site 
assessments, will be considered to be in compliance with the 
requirements for all appropriate inquiries, as required in the 
Brownfields Amendments to CERCLA, if such parties comply with the 
procedures provided in the ASTM E2247-08, ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property.'' EPA determined that it is 
reasonable to promulgate this clarification as a direct final rule that 
is effective immediately, rather than delay promulgation of the 
clarification until after receipt and consideration of public comments. 
EPA made this determination based upon the Agency's finding that the 
ASTM E2247-08 standard is compliant with the All Appropriate Inquiries 
Final Rule and the Agency sees no reason to delay allowing for its use 
in conducting all appropriate inquiries. The Agency notes that today's 
action does not require any party to use the ASTM E2247-08 standard. 
Any party conducting all appropriate inquiries to comply with the 
CERCLA requirements at section 101(35)(B) for the innocent landowner 
defense, the contiguous property owner liability protection, or the 
bona fide prospective purchaser liability protection may continue to 
follow the provisions of the All Appropriate Inquiries Final Rule at 40 
CFR part 312 or use the ASTM E1527-05 Standard.
    In taking today's action, the Agency is allowing for the use of an 
additional recognized standard or customary business practice, in 
complying with a federal regulation. Today's action does not require 
any person to use the newly recognized standard. Today's action merely 
allows for the use of ASTM International's E2247-08 ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property'' for those parties 
purchasing relatively large tracts of rural property or forestlands who 
want to use the ASTM E2247-08 standard in lieu of the following 
specific requirements of the All Appropriate Inquiries Final Rule or 
the ASTM E1527-05 standard.
    The Agency notes that there are no significant differences between 
the regulatory requirements and the two ASTM standards. To facilitate 
an understanding of the slight differences between the All Appropriate 
Inquiries Final Rule, the ASTM E1527-05 Phase I Environmental Site 
Assessment Standard and the ASTM E2247-08 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property,'' as well as the 
applicability of the E2247-08 standard to certain types of properties, 
EPA developed, and placed in the docket for today's action, the 
document ``Comparison of All Appropriate Inquiries Regulation and

[[Page 78654]]

ASTM E2247-08 Phase I Environmental Site Assessment Process for 
Forestland or Rural Property.'' The document provides a comparison of 
the federal regulation and the two ASTM standards.
    By taking today's action, EPA is fulfilling the intent and 
requirements of the National Technology Transfer and Advancement Act of 
1995 (NTTAA), Public Law 104-113.

III. This Action

    EPA is publishing this direct final rule without prior proposal 
because the Agency wants to provide additional flexibility for grant 
recipients or other entities who may benefit from the use of the ASTM 
E2247-08 standard. In addition, the Agency views this as a 
noncontroversial action and anticipates no adverse comment. We believe 
that today's action is reasonable and can be promulgated without 
consideration of public comment because it allows for the use of a 
tailored standard developed by a recognized standards developing 
organization and that was reviewed by EPA and determined to be 
equivalent to the Agency's final rule. Today's action does not disallow 
the use of the previously recognized standard (ASTM E1527-05) and it 
does not alter the requirements of the previously promulgated final 
rule. In addition, today's action will potentially increase flexibility 
for some parties who may make use of the new standard, without placing 
any additional burden on those parties who prefer to use either the 
ASTM E1527-05 standard or follow the requirements of the All 
Appropriate Inquiries Final Rule when conducting all appropriate 
inquiries.
    Although we view today's action as noncontroversial, in the 
``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate proposed rule containing the clarification 
summarized above. That proposed rule will serve as the proposal to be 
revised if adverse comments are received. If EPA does not receive 
adverse comment in response to this direct final rule prior to January 
22, 2009, this rule will become effective on March 23, 2009, without 
further notice. If EPA receives adverse comment, we will publish a 
timely withdrawal of this direct final rule in the Federal Register, 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time and before January 22, 
2009.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866, entitled ``Regulatory Planning and 
Review'' (58 FR 51735 (October 4, 1993)), and is therefore not subject 
to review by the Office of Management and Budget under the EO.

B. Paperwork Reduction Act

    Today's action includes no information collection requirements and 
therefore no associated burdens. The action will not result in any 
change to the current regulation other than to allow for the use of an 
additional standard.

C. Regulatory Flexibility Act

    Today's direct rule is not subject to the Regulatory Flexibility 
Act (RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. (5 U.S.C. 601 et 
seq.). Although the rule is subject to the APA, the Agency has invoked 
the ``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice and comment requirements under the APA or any 
other statute. Today's action does not change the current regulatory 
status quo and it has no economic impact. Therefore, it is not subject 
to the regulatory flexibility provisions of the Regulatory Flexibility 
Act.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
This action merely allows for the use of a voluntary consensus 
standard. This action allows the newly recognized standard to be used 
by any entity. The action imposes no new regulatory requirements and 
will result in no additional burden to any entity. Thus, this rule is 
not subject to the requirements of sections 202 or 205 of the Unfunded 
Mandates Reform Act. This rule is also not subject to the requirements 
of section 203 of UMRA because it contains no regulatory requirements 
that might significantly or uniquely affect small governments. This 
action imposes no enforceable duty on any State, local or tribal 
governments or the private sector.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August 
10, 1999)), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the EO to 
include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    This direct final rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in EO 13132. Thus, EO 13132 does not apply to 
this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in EO 
13175, entitled ``Consultation and Coordination with Indian Tribal 
Governments'' (65 FR 67249 (November 9, 2000)). Today's action does not 
change any current regulatory requirements and therefore does not 
impose any impacts upon tribal entities. Thus, EO 13175 does not apply 
to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to EO 13045, ``Protection of Children 
From Environmental Health Risks and Safety Risks'' (62 FR 19885 (April 
23, 1997)), because it is not economically significant as defined in EO 
12866, and EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to EO 13211, entitled ``Actions 
Concerning Regulations That Significantly Affect

[[Page 78655]]

Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), 
because it is not a significant regulatory action under EO 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does involve technical standards. Therefore, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) apply. The NTTAA was signed 
into law on March 7, 1996 and, among other things, directs the National 
Institute of Standards and Technology (NIST) to bring together federal 
agencies as well as state and local governments to achieve greater 
reliance on voluntary standards and decreased dependence on in-house 
standards. It states that use of such standards, whenever practicable 
and appropriate, is intended to achieve the following goals: (a) 
Eliminate the cost to the government of developing its own standards 
and decrease the cost of goods procured and the burden of complying 
with agency regulation; (b) provide incentives and opportunities to 
establish standards that serve national needs; (c) encourage long-term 
growth for U.S. enterprises and promote efficiency and economic 
competition through harmonization of standards; and (d) further the 
policy of reliance upon the private sector to supply Government needs 
for goods and services. The Act requires that federal agencies adopt 
private sector standards, particularly those developed by standards 
developing organizations (SDOs), wherever possible in lieu of creating 
proprietary, non-consensus standards.
    Today's action is compliant with the spirit and requirements of the 
NTTAA. Today's action allows for the use of the ASTM International 
standard known as Standard E2247-08 and entitled ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property.''

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898, entitled ``Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629 (Feb. 16, 1994)), establishes federal 
executive policy on environmental justice. Its main provision directs 
federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this direct final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. Today's action does not change any regulatory requirements 
or impose any new requirements.

K. Congressional Review Act

    The Congressional Review Act, as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, generally provides that 
before a rule may take effect, the agency promulgating the rule must 
submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 5 
U.S.C. 801 et seq. EPA submitted a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is effective 
on March 23, 2009, unless EPA receives adverse comment by January 22, 
2009.

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

    Dated: December 17, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40 chapter I of the code 
of Federal Regulations is amended as follows:
0
Title 40 Chapter I is amended as follows:

PART 312--[AMENDED]

0
1. The authority citation for part 312 continues to read as follows:

    Authority: Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 
9601(3)(B).

Subpart B--Definitions and References

0
2. Section 312.11 is amended by adding paragraph (b) to read as 
follows:


Sec.  312.11  References.

* * * * *
    (b) The procedures of ASTM International Standard E2247-08 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property.'' This standard is available from ASTM International at 
http://www.astm.org, 1-610-832-9585.

[FR Doc. E8-30536 Filed 12-22-08; 8:45 am]
BILLING CODE 6560-50-P