[Federal Register Volume 79, Number 116 (Tuesday, June 17, 2014)]
[Proposed Rules]
[Pages 34480-34484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14032]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2014-0474; FRL-9911-81-OSWER]


Amendment to Standards and Practices for All Appropriate 
Inquiries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the standards and practices for conducting all appropriate 
inquiries under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA) to remove the reference to ASTM 
International's E1527-05 standard practice. This 2005 standard practice 
recently was replaced with updated standard E1527-13 by ASTM 
International, a widely recognized standards development organization. 
Specifically, EPA is proposing to amend the ``All Appropriate Inquiries 
Rule'' to remove the reference to ASTM International's E1527-05 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.''

DATES: Written comments must be received by July 17, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2014-0474 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: Superfund Docket, Environmental Protection Agency,

[[Page 34481]]

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-
2014-0474. 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 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, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Regulated Entities

    The EPA is proposing to remove the reference to the 2005 ASTM 
standard in the All Appropriate Inquiries Rule at 40 CFR part 312. In 
November 2013, ASTM International replaced its 2005 standard (ASTM 
E1527-05 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'') with an updated standard, 
ASTM E1527-13 ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process.'' The updated 2013 
standard is a currently recognized industry consensus-based standard to 
conduct all appropriate inquiries under CERCLA. In December 2013, EPA 
published a final rule indicating that parties who purchase potentially 
contaminated properties may use the ASTM E1527-13 standard practice 
when conducting all appropriate inquiries pursuant to CERCLA. Today's 
proposed rule does not propose changes to the standards and practices 
included in the All Appropriate Inquiries Rule. Any party who wants to 
conduct all appropriate inquiries under CERCLA may follow the standards 
and procedures set forth in the All Appropriate Inquiries Rule at 40 
CFR part 312 (70 FR 66070) or use the new ASTM E1527-13 standard.
    Parties potentially affected by this action are those who perform 
all appropriate inquiries, including public and private parties who 
intend to claim protection from CERCLA liability as bona fide 
prospective purchasers, contiguous property owners, or innocent 
landowners. In addition, any party 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 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 parties 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 parties not listed in the 
table and EPA welcomes comments on this issue.

Content of Today's Proposed Rule

I. Regulated Entities
II. Statutory Authority
III. Background
IV. Overview of Today's Action
V. Effective Date of Final Action
VI. Statutory and Executive Order Reviews

II. Statutory Authority

    This proposed rule, which proposes to amend the All Appropriate 
Inquiries Rule at 40 CFR part 312 setting Federal standards for the 
conduct of ``all appropriate inquiries,'' is authorized under section 
101(35)(B) of CERCLA (42 U.S.C. 9601), as amended by the Small Business 
Liability Relief and Brownfields Revitalization Act of 2002.

III. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization

[[Page 34482]]

Act, Public Law 107-118 (``the Brownfields Amendments''), which amended 
CERCLA. In general, the Brownfields Amendments provide funds to assess 
and clean up brownfields sites; clarify CERCLA liability provisions 
related to certain 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 CERCLA liability under Section 107 (42 U.S.C. 9607) 
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 
provide that parties purchasing potentially contaminated property must 
undertake ``all appropriate inquiries'' into prior ownership and use of 
the property at issue prior to purchase in order to qualify for 
protection from CERCLA liability.
    The Brownfields Amendments also require EPA to develop regulations 
establishing standards and practices for conducting all appropriate 
inquiries. On November 1, 2005, EPA promulgated regulations that set 
standards and practices for all appropriate inquiries (70 FR 66070). In 
that rule, EPA referenced the ASTM E1527-05 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process'' and authorized its use to comply with the rule. On December 
23, 2008, EPA amended the rule to recognize another ASTM International 
standard as compliant with the rule, ASTM E2247-08 ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property'' (73 FR 78716).
    In November 2013, ASTM International published ASTM E1527-13, 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.'' In early 2013, at ASTM 
International's request, EPA reviewed this standard and determined that 
a party's use of the standard would be compliant with the All 
Appropriate Inquiries Rule.
    On December 30, 2013, EPA published a final rule which provided 
that persons conducting all appropriate inquiries may use the 
procedures included in ASTM E1527-13 to comply with the All Appropriate 
Inquiries Rule (78 FR 79319). In the final rule, EPA indicated that it 
intended to publish a proposed rule to amend the All Appropriate 
Inquiries Rule to remove the reference to ASTM E1527-05 Phase I 
Environmental Site Assessment Standard.
    With today's action, EPA is proposing to amend the All Appropriate 
Inquiries Rule to remove the reference to the historical 2005 ASTM 
standard (ASTM E1527-05). EPA is retaining the reference to the 
recently revised ASTM standard, E1527-13.

IV. Overview of Today's Action

    EPA is proposing to amend the All Appropriate Inquiries Rule at 40 
CFR 312 to remove the reference to ASTM International's E1527-05 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.'' In November 2013, ASTM 
International designated this standard an ``historical standard'' and 
replaced it with the updated ASTM E1527-13 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process.''
    Today's proposed action would not prevent parties from continuing 
to use other standards, methods, or customary business practices for 
conducting all appropriate inquiries, so long as they comply with the 
standards and procedures set forth in the All Appropriate Inquiries 
Rule. Instead, today's proposed action removes the reference to a 
standard that ASTM International no longer recognizes as current and 
that it no longer represents as reflecting its current consensus-based 
standard.
    EPA is proposing this action because the Agency wants to reduce any 
confusion associated with the regulatory reference to a historical 
standard that is no longer recognized by its own promulgating 
organization as meeting its standards for good customary business 
practice. In addition, we believe that today's proposed action would 
promote the use of the standard currently recognized by ASTM 
International as the consensus-based, good customary business standard.
    For properties acquired between November 1, 2005 and the effective 
date of this proposed action, should it be finalized, the 2005 ASTM 
standard (ASTM E1527-05) complies with the All Appropriate Inquiries 
Rule as it was in effect at the time the property was acquired.
    EPA's proposed action includes no proposed changes to the All 
Appropriate Inquiries Rule other than to remove a reference to the 
historical ASTM E1527-05 standard. It does not impact the reference to 
the recently revised ASTM standard, E1527-13 in the All Appropriate 
Inquiries Rule.
    EPA seeks comments on today's proposed action. EPA is not seeking 
comments on the standards and practices included in the All Appropriate 
Inquiries Rule published at 40 CFR 312, nor on the references to any 
other standards included in 40 CFR 312.11.

V. Effective Date of Final Action

    Today's action is a proposed rule. The Agency is seeking comment on 
the proposal to remove the current reference to the ASTM E1527-05 Phase 
I Environmental Site Assessment Standard in the All Appropriate 
Inquiries Rule. After considering all public comments received in 
response to the proposed action, EPA may publish a final rule that will 
result in the removal of the current reference to the ASTM E1527-05 
standard. The EPA anticipates that some parties, at the time that EPA 
publishes a final rule to remove the reference to the ASTM E1527-05 
standard, may still be using the historical standard to comply with the 
provisions of all appropriate inquiries. Therefore, the Agency 
anticipates providing for a delayed effective date of the final action 
to provide parties with an adequate opportunity to complete AAI 
investigations that may be ongoing and to become familiar with the 
updated industry standard (ASTM E1527-13). EPA proposes an effective 
date for removing the reference to ASTM E1527-05 in the AAI rule as one 
year after the publication of the final rule. EPA is soliciting 
comments on the proposal to delay the effective date of a final rule 
removing the reference to the ASTM E1527-05 standard for one year 
following publication of the final rule.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This proposed action is not a ``significant regulatory action'' 
under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This proposed action will not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. Burden is defined at 5 CFR 1320.3(b). The current 
regulation does not have an information collection burden and

[[Page 34483]]

today's action's only change to the regulation is to delete the 
reference to a historical standard that recently was replaced with an 
updated version of the standard. A final rule referencing the updated 
version of the standard was published by EPA on December 30, 2013 (78 
FR 79319).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis for any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act 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. Small entities include small business, small 
organizations, and small governmental jurisdictions.
    Today's proposed action does not change the current regulatory 
status quo and does not impose any regulatory requirements. After 
considering the economic impacts of today's proposed rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or 
the private sector. This proposed action imposes no enforceable duty on 
any state, local or tribal governments or the private sector. This 
proposed action merely removes a reference to a historical voluntary 
consensus standard. The proposed action imposes no new regulatory 
requirements and will result in no additional burden to any entity. 
Therefore, this action is not subject to the requirements of sections 
202 or 205 of UMRA.
    As stated above, this proposed rule also is not subject to the 
requirements of section 203 of UMRA because it contains no new 
regulatory requirements that might significantly or uniquely affect 
small governments.

E. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. Today's 
proposed action will not substantially change the current regulation; 
it merely removes a reference to a historical voluntary consensus 
standard. It 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 EO 13132. Thus, EO 13132 does not apply 
to this rule.
    In the spirit of EO 13132, and consistent with EPA policy to 
promote communication between EPA and state and local governments, EPA 
specifically solicits comment on this proposed action from state and 
local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications, as 
specified in EO 13175 (65 FR 67249, November 9, 2000). This proposed 
action merely removes a reference to a historical voluntary consensus 
standard. Today's proposed action does not change any current 
regulatory requirements and therefore will 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

    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 proposed 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 proposed action is not subject to EO 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 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. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action involves technical standards. Therefore, the 
requirements of section 12(d) of the NTTAA (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 rule complies with the NTTAA as it allows persons 
conducting all appropriate inquiries to use the procedures included in 
the updated ASTM International standard known as Standard E1527-13 and 
entitled ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process to comply with the All 
Appropriate Inquiries Rule.'' The rule also deletes reference to a 
standard that is no longer recognized as current by the standards 
developing organization responsible for its development.
    The EPA welcomes comments on this aspect of the proposed 
rulemaking.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 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

[[Page 34484]]

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 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 action merely removes a reference to a historical 
voluntary consensus standard and does not impose any new requirements.

List of Subjects in 40 CFR Part 312

    Environmental protection, Administrative practice and procedure, 
Hazardous substances.

    Dated: June 6, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations proposes to amend 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).

Subpart B--Definitions and References


Sec.  312.11  [Amended]

0
2. Section 312.11 is amended by removing paragraph (a) and 
redesignating paragraphs (b) and (c) as paragraphs (a) and (b).

[FR Doc. 2014-14032 Filed 6-16-14; 8:45 am]
BILLING CODE 6560-50-P