[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Rules and Regulations]
[Pages 49690-49693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19764]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 312
[EPA-HQ-SFUND-2013-0513; FRL-9845-9]
Amendment to Standards and Practices for All Appropriate
Inquiries
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action 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, this
direct final rule amends the All Appropriate Inquiries 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: This rule is effective on November 13, 2013, without further
notice, unless EPA receives adverse comment by September 16, 2013. If
EPA receives such comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
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
[[Page 49691]]
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
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 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 rule does 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 Standard Practice
for Phase I Environmental Site Assessments to comply with the all
appropriate inquiries provision of CERCLA, 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 recognized in today's direct final 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 Section104(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 North American Industry Classification
System (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. Statutory Authority
This direct final rule amends the All Appropriate Inquiries Final
Rule setting 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).
III. 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; clarifies existing and
establishes new CERCLA liability provisions related to certain types of
owners 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 inquiry'' into prior ownership and use of property prior to
purchasing the property in order 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.'' In
December 2008, EPA amended the final rule to recognize another ASTM
standard as compliant with the final rule, ASTM E2247-08 ``Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process for Forestland or Rural
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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 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.
Today's direct final rule amends the All Appropriate Inquiries
Final Rule to allow 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 promulgate this clarification as a direct final rule
that is effective immediately, rather than delay promulgation of the
clarification until after receipt and consideration of public comments.
EPA made this determination based upon the Agency's finding that the
ASTM E1527-13 standard is compliant with the All Appropriate Inquiries
Final Rule and the Agency sees no reason to delay allowing for its use
in conducting all appropriate inquiries.
The Agency notes that today's action does not require any party to
use the ASTM E1527-13 standard. Any party conducting all appropriate
inquiries to comply with the 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, use the ASTM E1527-05 Standard or use
the ASTM E2247-08 standard.
In taking today's action, the Agency is allowing for the use of an
additional recognized standard or customary business practice, in
complying with a federal regulation. Today's action does not require
any person to use the newly revised standard. Today's action merely
allows for the use of ASTM International's 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 to certain types of properties, EPA developed,
and placed in the docket for today's 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 comparison of
the two ASTM E1527 standards.
By taking today's action, EPA is fulfilling the intent and
requirements of the National Technology Transfer and Advancement Act of
1995 (NTTAA), Public Law 104-113.
Today's 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 direct final 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.
IV. This Action
EPA is publishing this direct final rule without prior proposal
because the Agency wants to provide additional flexibility for grant
recipients or other entities that may benefit from the use of the ASTM
E1527-13 standard. In addition, the Agency views this as a
noncontroversial action and anticipates no adverse comment. We believe
that today's action is reasonable and can be promulgated without
consideration of public comment because it allows 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 does not alter the requirements of the previously
promulgated final rule. In addition, today's action will potentially
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
standard, or follow the requirements of the All Appropriate Inquiries
Final Rule when conducting all appropriate inquiries.
Although we view today's action as noncontroversial, in the
``Proposed Rules'' section of today's Federal Register, we are
publishing a separate proposed rule containing the clarification
summarized above. That proposed rule will serve as the proposal to be
revised if adverse comments are received. If EPA does not receive
adverse comment in response to this direct final rule prior to
September 16, 2013, this rule will become effective on November 13,
2013, without further notice. If EPA receives adverse comment, we will
publish a timely withdrawal of this direct final rule in the Federal
Register, informing the public that the rule will not take effect. We
will address all public comments in a subsequent final rule. We will
not institute a second comment period on this action. Any parties
interested in commenting must do so at this time and before September
16, 2013.
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. This action merely amends the All Appropriate Inquiries
Rule to reference ASTM International's E1527-13 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process'' and allow for
[[Page 49693]]
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. This action does not contain any
unfunded mandates or significantly or uniquely affect small governments
as described in Sections 202 and 205 of the Unfunded Mandates Reform
Act of 1999 (UMRA) (Pub. L. 104-4). This action does not create new
binding legal requirements that substantially and directly affect
Tribes under Executive Order 13175 (63 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
action has been exempted from review 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 action 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).
This action does involve technical standards; thus, the
requirements of Section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) does 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), whenever possible in lieu
of creating proprietary, non-consensus standards.
Today's action is compliant with the spirit and requirements of the
NTTAA. Today's action allows for the use of the ASTM International
standard known as Standard E1527-13 and entitled ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process.''
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before certain actions may take effect, the agency
promulgating the action must submit a report, which includes a copy of
the action, 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. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is
effective on November 13, 2013, unless EPA receives adverse comment by
September 16, 2013.
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.
For the reasons set out in the preamble, title 40 CFR chapter I is
amended as follows:
PART 312--[AMENDED]
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(3)(B).
Subpart B--Definitions and References
0
2. Section 312.11 is amended by adding paragraph (c) to read as
follows:
Sec. 312.11 References.
* * * * *
(c) The procedures of ASTM International Standard E1527-13 entitled
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process.'' This standard is available
from ASTM International at www.astm.org, 1-610-832-9585.
[FR Doc. 2013-19764 Filed 8-14-13; 8:45 am]
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