[Federal Register Volume 82, Number 178 (Friday, September 15, 2017)]
[Rules and Regulations]
[Pages 43310-43312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19593]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2016-0786; FRL-9967-46-OLEM]
RIN 2050-AG94


Amendment to Standards and Practices for All Appropriate 
Inquiries Under CERCLA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the agency) 
is taking final action to amend the Standards and Practices for All 
Appropriate Inquiries to update an existing reference to a standard 
practice revised by ASTM International, a widely recognized standards 
development organization. Specifically, this final rule amends the All 
Appropriate Inquiries Rule to reference ASTM International's E2247-16 
``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 inquires under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA).

DATES: This final rule is effective on March 14, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2016-0786. All documents in the docket are 
listed on the https://www.regulations.gov Web site. Docket materials 
are also available in hard copy at the EPA Docket Center Reading Room. 
Please see https://www.epa.gov/dockets/epa-docket-center-reading-room 
or call (202) 566-1744 for more information on the Docket Center 
Reading Room.

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 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Purpose of This Regulatory Action

    EPA is publishing this final rule to revise an existing reference 
in 40 CFR part 312 to include the updated version of a standard 
practice recently made available by ASTM International (E2247-16).

B. Does this action apply to me?

    This action offers certain parties the option of using an available 
industry standard to conduct all appropriate inquiries at certain 
properties. Parties purchasing large tracts of forested land and 
parties purchasing large rural properties may use the ASTM E2247-16 
standard practice to comply with the all appropriate inquiries 
requirements of CERCLA. This 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 requirements of the All 
Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13 
Standard Practice for Phase I Environmental Site Assessments to comply 
with the all appropriate inquiries provision of CERCLA, or use the 
standard recognized in this final rule, the ASTM E2247-16 standard, as 
applicable.
    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 this 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
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    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.

C. Statutory Authority

    This final rule amends the All Appropriate Inquiries Rule setting 
federal standards for the conduct of ``all appropriate inquiries'' at 
40 CFR part 312. The All Appropriate Inquiries 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; clarify CERCLA 
liability provisions related to innocent purchasers of contaminated 
properties; and provide funding to enhance State and Tribal cleanup 
programs. 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

[[Page 43311]]

defense 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 Process.'' The 
regulation was amended in December 2013 to recognize the revised ASTM 
E1527-13, ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'' (78 FR 79319). EPA also 
amended the All Appropriate Inquiries Rule in December 2008 to 
recognize another ASTM standard as compliant with the final rule, the 
ASTM E2247-08 ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process for Forestland or Rural 
Property'' (73 FR 78651). Therefore, the All Appropriate Inquiries Rule 
(40 CFR part 312) currently allows for the use of both the ASTM E1527-
13 and the ASTM E2247-08 standards to conduct all appropriate 
inquiries, in lieu of following requirements included in the final 
rule. Note that in October 2014, EPA withdrew the reference to the ASTM 
E1527-05 standard from the AAI rule (79 FR 60087).
    Since EPA promulgated the All Appropriate Inquiries Rule setting 
standards and practices for the conduct of all appropriate inquiries, 
ASTM International published a revised Phase I site assessment standard 
for conducting Phase I environmental site assessments of large tracts 
of rural and forestland properties. This standard, ASTM E2247-16, 
``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 Rule. EPA 
proposed to amend the All Appropriate Inquiries Rule to recognize the 
updated ASTM E2247-16 standard on June 20, 2017 (82 FR 28040).

III. Summary of Comments

    EPA received one comment on the proposed rule published June 20, 
2017. Although the commenter generally supports the Agency's proposed 
action, the commenter raised a concern regarding the proposed effective 
date of the action. The commenter offered that parties using the 
previous version of the ASTM E2247 standard (ASTM E2247-08) would not 
have sufficient time to transition to the new standard, given that EPA 
proposed an effective date of 90 days following publication of a direct 
final rule, which was published on the same day as the proposed rule. 
Given the concern raised by the commenter, EPA decided to extend the 
effective date of its action in this final rule. This final rule will 
become effective 180 days following the publication of this final rule 
in Federal Register. The extended effective date will give parties 
using the ASTM E2247-08 standard sufficient time to transition to the 
new standard, ASTM E2247-16. The Agency notes that this action does not 
require any party to use the ASTM E2247-16 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 Rule at 40 CFR part 312, 
use the ASTM E1527-13 Standard or use the ASTM E2247-16 standard, as 
applicable.

IV. What does this action do?

    This final rule amends the All Appropriate Inquiries Rule to allow 
the use of the recently revised ASTM standard, E2247-16 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property,'' 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.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (Pub. L. 104-113, section 12(d) (15 U.S.C. 272)) directs 
agencies to use technical standards that are developed or adopted by 
voluntary consensus standards bodies, unless their use would be 
inconsistent with applicable law or otherwise impracticable. ASTM 
International is an internationally recognized voluntary consensus 
standard body. The ASTM E2247-16 ``Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property'' includes an environmental site 
assessment process that EPA finds is not inconsistent with the 
standards and practices included in the All Appropriate Inquiries Rule.
    With this 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 satisfy the 
applicability requirements and comply with the procedures provided in 
the ASTM E2247-16, ``Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property.'' EPA made this determination based upon 
the Agency's finding that the ASTM E2247-16 standard is ``not 
inconsistent with,'' and compliant with the All Appropriate Inquiries 
Rule. The Agency notes that this action does not require any party to 
use the ASTM E2247-16 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 Rule at 40 CFR part 312, use the ASTM E1527-13 Standard or 
use the ASTM E2247-16 standard, as applicable.
    In taking this action, the Agency is allowing for the use of an 
additional recognized standard or customary business practice, in 
complying with a federal regulation. This action does not require any 
person to use the newly revised standard. This action merely allows for 
the use of ASTM International's E2247-16 ``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 E2247-16 standard in lieu of the following specific 
requirements of the All Appropriate Inquiries Rule or the ASTM E1527-13 
standard.
    The Agency notes that there are no significant differences between 
the regulatory requirements in the All

[[Page 43312]]

Appropriate Inquiries Rule and the standards and practices included in 
the two ASTM standards (ASTM E1527-13 and ASTM E2247-16). To facilitate 
an understanding of the revisions to the ASTM E2247-08 Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Standard for Forestland or Rural Property, which was 
recognized by EPA as compliant with the requirements of the all 
appropriate inquiries regulation in 2013, and the revised ASTM E2247-16 
Standard, which replaces the ASTM E2247-08 standard, EPA developed, and 
placed in the docket for this action, the document ``Summary of Updates 
and Revisions to ASTM E2247 Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property.'' Also in the docket for this action is 
the document ``Comparison of the All Appropriate Inquiries Regulation, 
the ASTM E1527-13 Phase I Environmental Site Assessment Process and the 
ASTM E2247-16 Phase I Environmental Site Assessment Process for 
Forestland or Rural Property Standard.'' This document provides an 
overview of the similarities and slight differences between the AAI 
regulatory requirements and the requirements included in the two ASTM 
phase I environmental site assessment standards.
    This action includes no changes to the All Appropriate Inquiries 
Rule other than to update the reference in the regulation for the ASTM 
E2247 standard. This action replaces the reference to the ASTM E2247-08 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property'' in the All Appropriate Inquiries Rule with the updated ASTM 
E2247-16 standard of the same name. EPA's only action with this final 
rule is recognition of the ASTM E2247-16 standard as compliant with the 
All Appropriate Inquires Rule.

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. Further, this action will not have a significant impact on 
a substantial number of small entities and, as a result, is not subject 
to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this 
action 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, 
and does not contain regulatory requirements that might significantly 
or uniquely affect small governments, it is not subject to Sections 
202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4). This action does not create new binding legal 
requirements that substantially and directly affect Tribes under 
Executive Order 13175 (65 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 final rule was not 
reviewed 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 final rule 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).

A. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. This action allows for 
the use of the ASTM International Standard known as Standard E2247-16 
and entitled ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process for Forestland or Rural 
Property.''

B. Congressional Review Act

    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 312

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements, Superfund.

    Dated: August 31, 2017.
Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency 
Management.

    For the reasons set out in the preamble, the Environmental 
Protection Agency amends title 40 chapter I of the Code of Federal 
Regulations as follows:

PART 312--INNOCENT LANDOWNERS, STANDARDS FOR CONDUCTING ALL 
APPROPRIATE INQUIRIES

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(35)(B).


0
2. Amend Sec.  312.11 by revising paragraph (a) to read as follows:


Sec.  312.11   References.

* * * * *
    (a) The procedures of ASTM International Standard E2247-16 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 
www.astm.org, 1-610-832-9585.
* * * * *
[FR Doc. 2017-19593 Filed 9-14-17; 8:45 am]
 BILLING CODE 6560-50-P