[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Proposed Rules]
[Pages 49714-49716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19763]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 312
[EPA-HQ-SFUND-2013-0513; FRL-9845-8]
Amendment to Standards and Practices for All Appropriate
Inquiries
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing 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, EPA is proposing to amend the
All Appropriate Inquiries Final 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: Written comments must be received by September 16, 2013.
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: [email protected].
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 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: 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
[[Page 49715]]
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 [email protected].
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 proposed rule will 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, 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 standard recognized in today's proposed 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 Section 104(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 NAICS codes) is displayed in
the table below.
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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. Why is EPA issuing this proposed rule?
This document proposes to amend the All Appropriate Inquiries Final
Rule at 40 CFR part 312 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
CERCLA. We have published a direct final rule amending the All
Appropriate Inquiries Final Rule to reference the ASTM E1527-13
standard and allow for its use to comply with the final rule in the
``Rules and Regulations'' section of this Federal Register because we
view this as a noncontroversial action and anticipate no adverse
comment. We have explained our reasons for this action in the preamble
to the direct final rule.
If we receive no adverse comment, we will not take further action
on this proposed rule. If we receive adverse comment, we will withdraw
the direct final rule and it will not take effect. We will address all
public comments in any subsequent final rule based on this proposed
rule. We do not intend to institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
For further information, please see the information provided in the
ADDRESSES section of this document.
III. Statutory Authority
EPA is proposing to amend the All Appropriate Inquiries Final Rule
that sets 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).
IV. 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 cleanup brownfields sites; clarifies existing and
establishes new CERCLA liability provisions related to certain types of
owners of 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 inquiries'' into prior ownership and use of property prior
to purchasing the property 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 Standard
Process.'' In December 2008, EPA amended the final rule to recognize
another ASTM standard as compliant with the direct final rule, ASTM
E2247-08 ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process for Forestland or Rural
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
[[Page 49716]]
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.
With today's action, EPA is proposing to amend the all appropriate
inquiries final rule to allow for 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 make this determination based upon the Agency's
finding that the ASTM E1527-13 standard is compliant with the All
Appropriate Inquiries Final Rule.
The Agency notes that today's action will not require any party to
use the ASTM E1527-13 standard. Any party conducting all appropriate
inquiries to comply with 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 or continue to use either the ASTM E1527-
05 standard or use the ASTM E2247-08 standard.
In proposing today's action, the Agency is allowing for the use of
an additional recognized standard or customary business practice, to
comply with a federal regulation. Today's proposed action does not
require any person to use the newly revised standard. Today's proposed
action merely will allow for the use of the ASTM 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 for certain types of properties, EPA
developed, and placed in the docket for today's proposed 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 cross walk between the two ASTM E1527 standards.
By proposing today's action, EPA is fulfilling the intent and
requirements of the National Technology Transfer and Advancement Act
(NTTAA).
EPA's proposed 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 proposed 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.
V. This Action
EPA is proposing this action because the Agency wants to provide
additional flexibility for brownfields grant recipients or other
entities that may benefit from the use of the ASTM E1527-13 standard.
We believe that today's proposed action will allow 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 will not alter the requirements of the previously
promulgated final rule. In addition, today's proposal potentially will
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 or
follow the requirements of the All Appropriate Inquiries Final Rule
when conducting all appropriate inquiries.
VI. Statutory and Executive Order Reviews
For a complete discussion of all of the administrative requirements
applicable to this action, see the discussion in the ``Statutory and
Executive Order Reviews'' section to the preamble for the direct final
rule that is published in the Rules and Regulations section of this
Federal Register.
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this proposed
action is not a ``significant regulatory action'' and is therefore not
subject to OMB review. This action merely amends the All Appropriate
Inquiries Final 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
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.
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.
[FR Doc. 2013-19763 Filed 8-14-13; 8:45 am]
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