[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Rules and Regulations]
[Pages 49690-49693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19764]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2013-0513; FRL-9845-9]


Amendment to Standards and Practices for All Appropriate 
Inquiries

AGENCY: Environmental Protection Agency (EPA).

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 E1527-13 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process'' and allow for its use to satisfy the requirements for 
conducting all appropriate inquiries under the Comprehensive 
Environmental Response, Compensation and Liability Act.

DATES: This rule is effective on November 13, 2013, without further 
notice, unless EPA receives adverse comment by September 16, 2013. 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-2013-0513 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: superfund.docket@epa.gov.
     Fax: 202-566-9744.
     Mail: Superfund Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
     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-
2013-0513. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA without going through www.regulations.gov your email 
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

[[Page 49691]]

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 
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
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 International's 
E1527-13 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'' will not be placed 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 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 federal 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 Rachel Lentz, Office of Brownfields and Land 
Revitalization (5105T), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW., Washington, DC 20460-0002, 202-566-2745, or 
lentz.rachel@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Regulated Entities

    Today's action offers certain parties the option of using an 
available industry standard to conduct all appropriate inquiries. 
Parties purchasing potentially contaminated properties may use the ASTM 
E1527-13 standard practice to comply with the all appropriate inquiries 
requirements of the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA). Today's rule does not require any entity to 
use this standard. Any party who wants to claim protection from 
liability under one of CERCLA's landowner liability protections may 
follow the regulatory requirements of the All Appropriate Inquiries 
Final Rule at 40 CFR part 312, use the ASTM E1527-05 Standard Practice 
for Phase I Environmental Site Assessments to comply with the all 
appropriate inquiries provision of CERCLA, use the ASTM E2247-08 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property,'' or use the recognized in today's direct final rule, the 
ASTM E1527-13 standard.
    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 potentially contaminated properties and wish 
to establish a limitation on CERCLA liability in conjunction with the 
property purchase. In addition, any entity conducting a site 
characterization or assessment on a 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 
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.

II. Statutory Authority

    This direct final rule amends the All Appropriate Inquiries Final 
Rule setting federal standards for the conduct of ``all appropriate 
inquiries'' 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 protection and for conducting site characterizations and 
assessments with the use of brownfields grants per CERCLA section 
104(k)(2)(B)(ii).

III. 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 existing and 
establishes new CERCLA liability provisions related to certain types of 
owners contaminated properties; and provides funding to establish or 
enhance State and Tribal cleanup programs. The Brownfields Amendments 
revised some of the provisions of CERCLA Section 101(35) and limit 
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 liability protection 
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.'' In 
December 2008, EPA amended the final rule to recognize another ASTM 
standard as compliant with the final rule, ASTM E2247-08 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural

[[Page 49692]]

Property.'' Therefore, the final rule (40 CFR part 312) allows for the 
use of the ASTM E1527-05 standard or the ASTM E2247-08 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 revised standard for 
conducting Phase I environmental site assessments. This standard, ASTM 
E1527-13, ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process,'' 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, 
E1527-13, for conducting all appropriate inquiries, as required under 
CERCLA for establishing the bona fide prospective purchaser, contiguous 
property owner, and innocent landowner liability protections.
    With today's action, 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, if such parties comply with the procedures provided in the 
ASTM E1527-13, ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process.'' 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 E1527-13 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 E1527-13 standard. Any party conducting all appropriate 
inquiries to comply with the CERCLA's bona fide prospective purchaser, 
contiguous property owner, and innocent landowner liability protections 
may continue to follow the provisions of the All Appropriate Inquiries 
Final Rule at 40 CFR part 312, use the ASTM E1527-05 Standard or use 
the ASTM E2247-08 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 revised standard. Today's action merely 
allows for the use of ASTM International's E1527-13 ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process'' for those parties purchasing potentially 
contaminated properties who want to use the ASTM E1527-13 standard in 
lieu of the following specific requirements of the all appropriate 
inquiries final rule.
    The Agency notes that there are no legally significant differences 
between the regulatory requirements and the two ASTM E1527 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 revised ASTM E1527-13 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process,'' as well as the applicability 
of the E1527-13 standard to certain types of properties, EPA developed, 
and placed in the docket for today's action, the document ``Summary of 
Updates and Revisions to ASTM E1527 Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Process: How 
E1527-13 Differs from E1527-05.'' The document provides a comparison of 
the two ASTM E1527 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.
    Today's action includes no changes to the All Appropriate Inquiries 
Rule other than to add an additional reference to the new ASTM E1527-13 
standard. EPA is not seeking comments on the standards and practices 
included in the final rule published at 40 CFR part 312. Also, EPA is 
not seeking comments on the ASTM E1527-13 standard. EPA's only action 
with today's direct final rule is recognition of the ASTM E1527-13 
standard as compliant with the final rule and, therefore it is only 
this action on which the Agency is seeking comment.

IV. 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 that may benefit from the use of the ASTM 
E1527-13 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 standards (ASTM E1527-05 or ASTM 
E2247-08) 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, the ASTM E2247-08 
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 
September 16, 2013, this rule will become effective on November 13, 
2013, 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 September 
16, 2013.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
OMB review. This action merely amends the All Appropriate Inquiries 
Rule to reference ASTM International's E1527-13 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process'' and allow for

[[Page 49693]]

its use to satisfy the requirements for conducting all appropriate 
inquiries under CERCLA. This action does not impose any requirements on 
any entity, including small entities. Therefore, pursuant to the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), after considering 
the economic impacts of this action on small entities, I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities. This action does not contain any 
unfunded mandates or significantly or uniquely affect small governments 
as described in Sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1999 (UMRA) (Pub. L. 104-4). This action does not create new 
binding legal requirements that substantially and directly affect 
Tribes under Executive Order 13175 (63 FR 67249, November 9, 2000). 
This action does not have significant Federalism implications under 
Executive Order 13132 (64 FR 43255, August 10, 1999). Because this 
action has been exempted from review under Executive Order 12866, this 
final rule is not subject to Executive Order 13211, entitled Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 
13045, entitled Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, April 23, 1997). This action does not 
contain any information collections subject to OMB approval under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it 
require any special considerations under Executive Order 12898, 
entitled Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).
    This action does involve technical standards; thus, the 
requirements of Section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) does 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), whenever 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 E1527-13 and entitled ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process.''
    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. 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 November 13, 2013, unless EPA receives adverse comment by 
September 16, 2013.

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

    Dated: August 5, 2013.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    For the reasons set out in the preamble, title 40 CFR 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 (c) to read as 
follows:


Sec.  312.11  References.

* * * * *
    (c) The procedures of ASTM International Standard E1527-13 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.'' This standard is available 
from ASTM International at www.astm.org, 1-610-832-9585.

[FR Doc. 2013-19764 Filed 8-14-13; 8:45 am]
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