[Federal Register Volume 79, Number 193 (Monday, October 6, 2014)]
[Rules and Regulations]
[Pages 60087-60090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23399]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2014-0474; FRL-9917-28-OSWER]


Amendment to Standards and Practices for All Appropriate 
Inquiries

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending 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 was replaced with an 
updated standard, the E1527-13, by ASTM International, a widely 
recognized standards development organization. Specifically, EPA is 
amending 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: The effective date for this action is October 6, 2015.

ADDRESSES: 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 WJC 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: 

Table of Contents

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

I. Regulated Entities

    The EPA is removing the reference to the 2005 ASTM standard in the 
All Appropriate Inquiries Rule at 40 CFR part 312 (70 FR 66070, as 
amended). 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 as provided under 
CERCLA. In December 2013, EPA published a final rule indicating that 
parties who acquire potentially contaminated properties and brownfields 
grantees using EPA brownfield grant funding to conduct site 
characterizations and assessments may use the ASTM E1527-13 standard 
practice when conducting all appropriate inquiries pursuant to CERCLA 
(78 FR 79319). Today's rule does not include any changes to the 
standards and practices included in the All Appropriate Inquiries Rule 
(AAI Rule). Any party who wants to meet the provisions under CERCLA to 
conduct all appropriate inquiries may follow the standards and 
procedures set forth in the AAI Rule at 40 CFR part 312 or use the new 
ASTM E1527-13 standard, as provided in the AAI Rule.
    Persons potentially affected by this action are those who perform 
all appropriate inquiries, including public and private entities who 
intend to claim protection from CERCLA liability as bona fide 
prospective purchasers, contiguous property owners, or innocent 
landowners. In addition, any person 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.

------------------------------------------------------------------------
         Industry category                       NAICS code
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    The list of potentially affected persons 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.

II. Statutory Authority

    Today's action, which amends the AAI 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 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 added new limitations on CERCLA liability under section 107 
for bona fide prospective purchasers and contiguous property owners and 
clarified the requirements necessary to establish the innocent 
landowner defense under CERCLA. The Brownfields Amendments also revised 
section 101(35) of CERCLA to provide that parties acquiring 
contaminated or potentially contaminated property must undertake ``all 
appropriate inquiries'' into prior ownership and use of the property 
prior

[[Page 60088]]

to acquisition to qualify for protection from CERCLA liability.
    The Brownfields Amendments further directed EPA to develop 
regulations establishing standards and practices for conducting all 
appropriate inquiries. On November 1, 2005, EPA promulgated regulations 
that established standards and practices for all appropriate inquiries 
(70 FR 66070). In the AAI Rule, EPA referenced the existing 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 revised the AAI Rule to 
recognize another ASTM International standard as compliant with the 
standards and practices set forth in the AAI 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 person's use of the standard would be compliant with the AAI 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 AAI Rule (78 FR 
79319). On June 17, 2014, EPA published a proposed rule (79 FR 34480) 
proposing to amend the AAI Rule to remove the reference to ASTM E1527-
05 Phase I Environmental Site Assessment Standard.

IV. Summary of Comments and EPA Responses

    In response to the June 17, 2014 proposed rule (79 FR 34480), EPA 
received five comments. Four of the comments were supportive of the 
proposed rule. The sole negative comment asserted that the principal 
difference between the E1527-05 standard and the E1527-13 standard is 
the inclusion of a requirement to evaluate the potential presence of 
vapor releases under the E1527-13 standard. The commenter further 
stated that because vapor releases are not by themselves a CERCLA 
concern, EPA should continue to allow for the use of the E1527-05 
standard. EPA disagrees with this comment. The scope of the AAI Rule 
and the ASTM E1527-05 standard always included the requirement to 
identify all indications of releases and threatened releases of 
hazardous substances, or ``recognized environmental conditions 
(RECs),'' including indications of vapor migration or vapor releases. 
With the updates included in the 2013 version of the ASTM E1527 
standard, ASTM modified the definition of migration to specifically 
include vapor migration and remove any confusion regarding the need to 
identify all RECs, or all indications of releases or threatened 
releases of hazardous substances, when conducting an AAI investigation.
    Two of the commenters who supported EPA's proposed rule recommended 
in their comments that EPA delay the effective date of the final rule 
until six months after the publication date, rather than the one year 
delay proposed by EPA. Although EPA agrees with the commenters' 
statements that most environmental professionals are likely already 
using the updated E1527-13 standard, the Agency believes it is prudent 
to provide for the one year delay in the effective date. The AAI Rule 
requires that AAI investigations be conducted within one year prior to 
the date of acquisition of the subject property (see 40 CFR 312.20(a)). 
In addition, the AAI Rule requires that certain aspects of the AAI 
investigation be conducted or updated within 180 days prior to the date 
of acquisition of the subject property (40 CFR 312.20(b)). Given these 
requirements, EPA determined that delaying the effective date for the 
final rule by only six months may be burdensome for some parties. 
Therefore, the effective date for this final rule, which removes the 
reference to the ASTM E1527-05 standard, will be October 6, 2015 
allowing sufficient time for AAI investigations initiated or on-going 
at the time of publication of today's rule to be completed or updated 
prior to the effective date.

V. Overview of Today's Action

    EPA is amending the AAI 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 a 
``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 action does 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 practices set forth in the AAI Rule. Instead, today's 
proposed action removes the reference to a standard that ASTM 
International no longer recognizes as current since it no longer 
represents the most recent consensus-based standard.
    EPA is taking 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 originating organization 
as meeting its standards for good customary business practice. In 
addition, we believe that today's final rule will promote the use of 
the 2013 standard currently recognized by ASTM International as the 
consensus-based, good customary business standard.
    Today's action includes no further changes to the AAI Rule other 
than to remove the reference to the historical ASTM E1527-05 standard. 
It does not impact the reference to the recently revised ASTM standard, 
E1527-13 in the AAI Rule. It also does not impact parties who acquired 
properties between November 1, 2005 and the effective date of this 
final rule and used the 2005 ASTM standard (ASTM E1527-05) to comply 
with the AAI Rule, as it was in effect at the time the property was 
acquired.

VI. Effective Date of Final Action

    Today's action is a final rule. The EPA anticipates that some 
parties, at this time may still be using the historical standard (ASTM 
E1527-05) to comply with the provisions of the AAI Rule. Therefore, the 
Agency is delaying the effective date of today's final action for one 
year 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). The effective date of 
today's final rule, which will remove the reference to ASTM E1527-05 in 
the AAI rule, is October 6, 2015.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This 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 action will not impose an information collection burden under 
the

[[Page 60089]]

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 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 action does not change the current regulatory status quo 
and does not impose any regulatory requirements. After considering the 
economic impacts of today's final 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 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 action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. This action merely removes a 
reference to a historical voluntary consensus standard. The final rule 
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 final 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 action does not have federalism implications. Today's final 
rule 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.

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). This action merely removes a 
reference to a historical voluntary consensus standard. Today's final 
rule 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 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

    Today's final rule 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 final 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 AAI 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.

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 
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 final rule will not have 
disproportionately high and adverse human health or

[[Page 60090]]

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.

K. Congressional Review Act

    The Congressional Review Act, as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, generally provides that 
before a rule may take effect, the agency promulgating the rule must 
submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is 
effective on October 6, 2015.

List of Subjects in 40 CFR Part 312

    Environmental protection, Administrative practice and procedure, 
Hazardous substances.

    Dated: September 19, 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 is amended 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. 2014-23399 Filed 10-3-14; 8:45 am]
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