[Federal Register Volume 68, Number 90 (Friday, May 9, 2003)]
[Rules and Regulations]
[Pages 24888-24891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11473]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[FRL-7496-2]
RIN 2050-AF05


Clarification to Interim Standards and Practices for All 
Appropriate Inquiry Under CERCLA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule clarifies a provision included in recent 
amendments to the Comprehensive

[[Page 24889]]

Environmental Response, Compensation, and Liability Act (CERCLA). 
Specifically, today's final rule addresses the interim standard set by 
Congress in the Small Business Liability Relief and Brownfields 
Revitalization Act (``The Brownfields Law'') for conducting ``all 
appropriate inquiry.'' Today's action clarifies that, in the case of 
property purchased on or after May 31, 1997, the requirements for 
conducting ``all appropriate inquiry,'' including the conduct of such 
activities to qualify as a bona fide prospective purchaser and to 
establish an innocent landowner defense under CERCLA, can be satisfied 
through the use of ASTM Standard E1527-00, entitled ``Standard Practice 
for Environmental Site Assessment: Phase I Environmental Site 
Assessment Process.'' In addition, recipients of brownfields site 
assessment grants will be in compliance with the all appropriate 
inquiry requirements if they comply with either the ASTM Standard 
E1527-97, or the ASTM E1527-00 Standard.

DATES: This final rule is effective June 9, 2003.

ADDRESSES: The record for this rulemaking has been established under 
docket number SFUND-2002-0007. Copies of public comments received, EPA 
response, and all other supporting documents are available for review 
at the U.S. Environmental Protection Agency Docket Center located at 
1301 Constitution Ave., NW., Washington, DC 20004. This Docket Facility 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. To review docket material, it is recommended that the 
public make an appointment by calling (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/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 Cleanup 
and Redevelopment (5105T), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-566-2774. 
[email protected].

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially affected by this action include public and 
private parties who, as bona fide prospective purchasers, contiguous 
property owners, or innocent landowners, purchase property 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 with a brownfields grant awarded under 
CERCLA section 104(k)(2)(B) 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.

------------------------------------------------------------------------
                     Industry category                        NAICS code
------------------------------------------------------------------------
Real Estate................................................          531
Insurance..................................................        52412
Banking/Real Estate Credit.................................        52292
Environmental Consulting Services..........................        54162
State, Local and Tribal Government.........................          N/A
------------------------------------------------------------------------

    The list of potentially affected entities in the above table may 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 or 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 INFORMATON CONTACT.

Preamble

I. Statutory Authority
II. Background
III. Summary of Final Rule
IV. Changes from January 24, 2003 Proposed Rule
V. Response to Comments
VI. Administrative Requirements

I. Statutory Authority

    This final rule clarifies provisions included in section 223 of the 
Small Business Liability Relief and Brownfields Revitalization Act 
which amends section 101(35)(B) of CERCLA (42 U.S.C. 9601(35)) and 
clarifies interim standards for the conduct of ``all appropriate 
inquiry'' for obtaining CERCLA liability relief and for conducting site 
characterizations and assessments with the use of brownfields grant 
monies.

II. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act (``the Brownfields 
Law''). The Brownfields Law revises CERCLA section 101(35) and provides 
Superfund liability limitations for bona fide prospective purchasers 
and contiguous property owners, in addition to clarifying the 
requirements necessary to establish the innocent landowner defense 
under CERCLA. Among the requirements added to CERCLA is the requirement 
that such parties undertake ``all appropriate inquiry'' into prior 
ownership and use of certain property.
    The Brownfields Law requires EPA to develop regulations that will 
establish standards and practices for how to conduct all appropriate 
inquiry. In addition, in the Brownfields Law, Congress established, as 
the Federal interim standard for conducting all appropriate inquiry, 
the procedures of the American Society for Testing and Materials (ASTM) 
including Standard E1527-97 (entitled ``Standard Practice for 
Environmental Site Assessment: Phase 1 Environmental Site Assessment 
Process''). This interim standard applies to properties purchased on or 
after May 31, 1997, until EPA promulgates Federal regulations 
establishing standards and practices for conducting all appropriate 
inquiry.
    On January 24, 2003, EPA published a proposed rule (68 FR 3478) 
that would clarify for the purposes of CERCLA section 101(35)(B), and 
until the Agency promulgates regulations implementing standards for all 
appropriate inquiry, parties may use either the procedures provided in 
ASTM E1527-00, entitled ``Standard Practice for Environmental Site 
Assessment: Phase I Environmental Site Assessment Process,'' or the 
standard ASTM E1527-97. Today's rulemaking constitutes EPA's final 
action on the proposed rule.

III. Summary of Final Rule

    Today's final rule clarifies that persons may use the current ASTM 
standard, E1527-00 for conducting all appropriate inquiry under CERCLA 
section 101(35)(B) for properties purchased on or after May 31, 1997. 
Such property owners also may continue to use ASTM's previous standard, 
E1527-97 for conducting all appropriate inquiry. In addition, parties 
receiving federal grant monies for the characterization and assessment 
of brownfields properties, may use either the 1997 or the 2000 version 
of the ASTM Phase I Site Assessment Standard when conducting site 
assessments using brownfields grant monies.

IV. Changes From the January 24, 2003 Proposed Rule

    We made one minor change in the rule text. One commenter pointed 
out that the most recent version of the ASTM Phase I Environmental Site 
Assessment Standard was incorrectly referenced as ``ASTM E1527-2000'' 
in the proposed rule. We agree that the

[[Page 24890]]

correct nomenclature is ASTM E1527-00 and we made the corresponding 
correction in today's final rule.
    The statutory cite referencing the award of brownfields assessment 
grants was corrected to reflect the appropriate cite.

V. Response to Comments

    On January 24, 2003, EPA published a proposed rule (68 FR 3478) 
clarifying that both the 1997 and the 2000 version of ASTM's E1527 
Phase I environmental site assessment standard may be used to comply 
with the interim standard for all appropriate inquiry established by 
Congress in the Brownfields Law. We received several comments on the 
proposed rule. A discussion of the significant comments follows. A 
complete copy of the comments and EPA's response are included in the 
docket for today's final rule.
    One commenter, the Utah Professional Environmental Consultants 
Association, stated that EPA's proposal was inappropriate and biased 
because the site assessment method cited by EPA (the ASTM-E1527-00 
standard) ``excludes methods of site auditing that do not conform to or 
acknowledge ASTM standards.'' The commenter also stated that ``States 
should be setting the standards for site assessment, not the Federal 
EPA, especially when the Agency is using the auditing style of a for-
profit organization.''
    The Ohio Department of Transportation (ODOT) commented that Ohio 
did not adopt the ASTM Phase I site assessment standards because it is 
designed for private commercial/industrial transactions and does not 
address ODOT's needs.
    Section 101(35)(B)(iv)(II) of CERCLA provides that until EPA 
promulgates the regulations under (B)(ii), ``the procedures of the 
American Society for Testing and Materials * * * shall satisfy the 
requirements in clause (i).'' Thus, the decision to accept ASTM 
procedures was made by Congress, and not by EPA. The narrow purpose of 
today's rule is to recognize that there is a more recent ASTM standard 
than the one mentioned in the statute. In addition, EPA is developing a 
regulation pursuant to section 101(35)(B) that will establish new 
Federal standards for conducting all appropriate inquiry for the 
purposes of establishing liability and conducting property assessments 
with brownfields grants. States also are free to promulgate any 
standards they feel are appropriate for use in their State programs. To 
the extent any State has regulations establishing standards for all 
appropriate inquiry, EPA may consider the merits of such standards 
during the development of the Federal standard.
    Another commenter, INTERTOX, stated that the ASTM standard 
``inadequately accounts for regional differences in the availability of 
historical documents for the characterization of past uses of a site.'' 
The commenter also stated that all appropriate inquiry ``should vary 
according to the geographic location of the site under investigation.''
    As stated in the proposed rule, the interim ASTM standard, as 
provided by Congress in the Brownfields Law, will be effective only 
until EPA promulgates regulations setting a federal standard for all 
appropriate inquiry. The issue of ``historical sources'' will be 
addressed in the subsequent rule, consistent with the statutory 
criteria for those standards and practices. While developing the ``all 
appropriate inquiry'' standards, EPA intends to consider multiple 
sources of information regarding technical standards and ``historical 
sources'' of site use.
    Phase Engineering, Inc. submitted a comment pointing out that EPA 
incorrectly cited the most recent version of the ASTM Phase I site 
assessment standards as ``ASTM E1527-2000.'' The commenter pointed out 
that the correct nomenclature is ``ASTM E1527-00.'' Today's final rule 
includes the correct nomenclature.

VI. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget.
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 FR U.S.C. 
3501 et seq.).
    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the APA or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This action will not have a significant impact on a substantial number 
of small entities because it does not create any new requirements.
    Because the purpose of today's action is to make a clarification 
that does not create any new requirements it has no economic impact and 
is not subject to sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does 
not significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA.
    This rule 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 Executive Order 13132 (64 FR 
43255, August 10, 1999). In addition, this rule also does not have 
tribal implications, as specified by Executive Order 13175 (65 FR 
67249, November 6, 2000).
    This rule also is not subject to Executive Order 13045 (62 FR 1985, 
April 23, 1997), because it is not economically significant.
    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.
    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, given that the 
interim standard for all appropriate inquiry that is the subject of 
today's action is a private sector standard developed by a standard 
developing organization. Today's action

[[Page 24891]]

allows for the use of the American Society for Testing and Materials 
(ASTM) standard known as Standard E1527-00 and entitled ``Standard 
Practice for Environmental Site Assessment: Phase 1 Environmental Site 
Assessment Process'' as the interim standard for conducting all 
appropriate inquiry for properties purchased on or after May 31, 1997, 
or in the alternative, the use of Standard E1527-97, and entitled 
``Standard Practice for Environmental Site Assessment: Phase 1 
Environmental Site Assessment Process.''
    Today's action does not involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994).
    The Congressional Review Act (5 U.S.C. 801 et seq.), 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. 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 9, 2003.

List of Subjects in 40 CFR Part 312

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

    Dated: May 2, 2003.
Christine Todd Whitman,
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
1. Subchapter J is amended by adding new part 312 to read as follows:

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

Subpart A--Introduction
Sec.
312.1 Purpose and applicability.
312.2 Standards and practices for all appropriate inquiry.
Subpart B--[Reserved]

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

Subpart A--Introduction


Sec.  312.1  Purpose and applicability.

    (a) Purpose. The purpose of this section is to provide standards 
and procedures for ``all appropriate inquiry'' for the purposes of 
CERCLA Section 103(35)(B).
    (b) Applicability. This section is applicable to: potential 
innocent landowners conducting all appropriate inquiry under Section 
101(35)(B) of CERCLA; bona fide prospective purchasers defined under 
Section 101(40) of CERCLA; contiguous property owners under Section 
107(q) of CERCLA; and persons conducting site characterization and 
assessments with the use of a grant awarded under CERCLA Section 
104(k)(2)(B).


Sec.  312.2  Standards and practices for all appropriate inquiry.

    With respect to property purchases on or after May 31, 1997, the 
procedures of the American Society for Testing and Materials (ASTM) 
1527-97 and the procedures of the American Society for Testing and 
Materials (ASTM) 1527-00, both entitled ``Standard Practice for 
Environmental Site Assessment: Phase 1 Environmental Site Assessment 
Process,'' shall satisfy the requirements for conducting ``all 
appropriate inquiry'' under Section 101(35)(B)(i)(I) of CERCLA, as 
amended by the Small Business Liability Relief and Brownfields 
Revitalization Act.

[FR Doc. 03-11473 Filed 5-8-03; 8:45 am]
BILLING CODE 6560-50-M