[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.
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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 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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