[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Proposed Rules]
[Pages 78716-78720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30537]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2008-0873; FRL-8755-7]
RIN 2050-AG47


Amendment to Standards and Practices for All Appropriate 
Inquiries Under CERCLA

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 
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). In the 
``Rules and Regulations'' section of this Federal Register, EPA is 
amending the All Appropriate Inquiries Final Rule to reference the ASTM 
E2247-08 Standard as a direct final rule without a prior proposed rule. 
If we receive no adverse comment, we will not take further action on 
this proposed rule.

DATES: Written comments must be received by January 22, 2009.

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: [email protected].
     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

[[Page 78717]]

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 
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 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 
[email protected].

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 proposed rule 
will 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 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.

------------------------------------------------------------------------
              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.

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 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). We have 
published a direct final rule amending the All Appropriate Inquiries 
regulations to reference the ASTM E2237-08 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.

Preamble

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

I. 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 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

[[Page 78718]]

Amendments to CERCLA provide funds to assess and cleanup 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 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.'' 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.
    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, 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 proposing to establish 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 make this determination based upon the Agency's finding 
that the ASTM E2247-08 standard is compliant with the all appropriate 
inquiries regulation. The Agency notes that today's action will 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 land 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 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 recognized standard. Today's 
proposed action merely will allow for the use of the ASTM 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 for certain types of properties, 
EPA developed, and placed in the docket for today's proposed action, 
the document ``Comparison of All Appropriate Inquiries Regulation and 
ASTM E2247-08 Phase I Environmental Site Assessment Process or 
Forestland or Rural Property.'' The document provides a cross walk 
between the federal regulation and the two ASTM standards.
    By proposing today's action, EPA is fulfilling the intent and 
requirements of the National Technology Transfer and Advancement Act 
(NTTAA).

III. 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 E2247-08 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 standard (ASTM E1527-05) 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 or follow the requirements of the 
All Appropriate Inquiries Final Rule when conducting all appropriate 
inquiries.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    This proposed 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

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

[[Page 78719]]

C. Regulatory Flexibility Act

    Today's proposed action 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 proposed 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 proposed 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 proposes to allow for the use of a voluntary 
consensus standard. This action would not require the newly recognized 
standard be used by any entity. The proposed rule includes no new 
regulatory requirements and will result in no additional burden to any 
entity. Thus, this proposed rule is not subject to the requirements of 
sections 202 or 205 of the Unfunded Mandates Reform Act. This proposed 
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 proposed 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 proposed rule does not have federalism implications. It will 
not result in 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 (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 (62 F.R. 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 Executive Order 13211 (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 proposed action is compliant with the spirit and 
requirements of the NTTAA. Today's proposed 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 (EO) 12898 (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 proposed rule will not have 
disproportionately high and adverse

[[Page 78720]]

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 proposed action will not 
change any regulatory requirements or impose any new requirements.

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

    Dated: December 17, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-30537 Filed 12-22-08; 8:45 am]
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