[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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