[Federal Register Volume 82, Number 117 (Tuesday, June 20, 2017)]
[Rules and Regulations]
[Pages 28009-28012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12841]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2016-0786; FRL-9958-47-OLEM]


Amendment to Standards and Practices for All Appropriate 
Inquiries Under CERCLA

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 update an existing reference 
to a standard practice recently revised 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 E2247-16 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property'' and allow for its use to 
satisfy the statutory requirements for conducting all appropriate 
inquiries under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA).

DATES: This rule is effective on September 18, 2017, without further 
notice, unless EPA receives adverse comment by July 20, 2017. If EPA 
receives such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this direct final rule will 
not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0786 at http://www.regulations.gov. Follow the online

[[Page 28010]]

instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

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, or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Why is EPA using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment as this action is just revising an existing reference in part 
312 to the updated version of a standard practice recently made 
available by ASTM International (E2247-16). However, in the ``Proposed 
Rules'' section of this Federal Register, we are publishing a separate 
document that will serve as the proposed rule if adverse comments are 
received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. For further information about commenting on 
this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

B. Does this action apply to me?

    This action offers certain parties the option of using an available 
industry standard to conduct all appropriate inquiries at certain 
properties. Parties purchasing large tracts of forested land and 
parties purchasing large rural properties may use the ASTM E2247-16 
standard practice to comply with the all appropriate inquiries 
requirements of CERCLA. This rule does not require any entity to use 
this standard. Any party who wants to claim protection from liability 
under CERCLA may follow the regulatory requirements of the All 
Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13 
Standard Practice for Phase I Environmental Site Assessments to comply 
with the all appropriate inquiries provision of CERCLA, or use the 
standard recognized in this direct final rule, the ASTM E2247-16 
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 large tracts of forested lands or large 
rural properties and intend to claim a limitation on CERCLA liability 
in conjunction with the property purchase. In addition, any entity 
conducting a site characterization or assessment on a property that 
consists of large tracts of forested land or a large rural property 
with a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) 
may be affected by this 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
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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.

C. Statutory Authority

    This direct final rule amends the All Appropriate Inquiries Rule 
setting federal standards for the conduct of ``all appropriate 
inquiries'' at 40 CFR part 312. The All Appropriate Inquiries Rule sets 
forth standards and practices necessary for fulfilling the requirements 
of CERCLA section 101(35)(B) as required to obtain CERCLA liability 
relief and for conducting site characterizations and assessments with 
the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).

II. 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 CERCLA 
liability provisions related to innocent purchasers of contaminated 
properties; and provides funding to enhance State and Tribal cleanup 
programs. In part, subtitle B of the Brownfields Amendments revises 
some of the provisions of CERCLA section 101(35) and limits Superfund 
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 defense under CERCLA. The 
Brownfields Amendments clarified the requirement that parties 
purchasing potentially contaminated property undertake ``all 
appropriate inquiries'' into prior ownership and use of property prior 
to purchasing the property 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

[[Page 28011]]

rule, the ASTM E1527-05 ``Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process.'' The 
regulation was amended in December 2013 to recognize the revised ASTM 
E1527-13, ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'' (78 FR 79319). EPA also 
amended the All Appropriate Inquiries Rule in December 2008 to 
recognize another ASTM standard as compliant with the final rule, the 
ASTM E2247-08 ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process for Forestland or Rural 
Property'' (73 FR 78716). Therefore, the All Appropriate Inquiries Rule 
(40 CFR part 312) currently allows for the use of both the ASTM E1527-
13 and the ASTM E2247-08 standards to conduct all appropriate 
inquiries, in lieu of following requirements included in the final 
rule. Note that in October 2014, EPA withdrew the reference to the ASTM 
E1527-05 standard from the AAI rule (79 FR 60087).
    Since EPA promulgated the All Appropriate Inquiries Rule setting 
standards and practices for the conduct of all appropriate inquiries, 
ASTM International published a revised Phase I site assessment standard 
for conducting Phase I environmental site assessments of large tracts 
of rural and forestland properties. This standard, ASTM E2247-16, 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property,'' 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 Rule.

II. What does this action do?

    This direct final rule amends the All Appropriate Inquiries Rule to 
allow the use of the recently revised ASTM standard, E2247-16, for 
conducting all appropriate inquiries, as required under CERCLA for 
establishing the innocent landowner defense, as well as qualifying for 
the bona fide prospective purchaser and contiguous property owner 
liability protections.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (Pub. L. 104-113, section 12(d) (15 U.S.C. 272)) directs 
agencies to use technical standards that are developed or adopted by 
voluntary consensus standards bodies, unless their use would be 
inconsistent with applicable law or otherwise impracticable. ASTM 
International is an internationally recognized voluntary consensus 
standard body. The ASTM E2247-16 ``Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property'' includes an environmental site 
assessment process that EPA finds is not inconsistent with the 
standards and practices included in the All Appropriate Inquiries Rule.
    With this action, EPA is establishing that, 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, as required in the 
Brownfields Amendments to CERCLA, if such parties satisfy the 
applicability requirements and comply with the procedures provided in 
the ASTM E2247-16, ``Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property.'' EPA determined that it is reasonable to 
promulgate this clarification as a direct final rule that is effective 
90 days from the date of publication in the Federal Register, 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 E2247-16 standard is ``not 
inconsistent with,'' and compliant with the All Appropriate Inquiries 
Rule and the Agency sees no reason to delay allowing for its use in 
conducting all appropriate inquiries. The Agency notes that this action 
does not require any party to use the ASTM E2247-16 standard. Any party 
conducting all appropriate inquiries to comply with the CERCLA 
requirements at section 101(35)(B) for the innocent landowner defense, 
the contiguous property owner liability protection, or the bona fide 
prospective purchaser liability protection may continue to follow the 
provisions of the All Appropriate Inquiries Rule at 40 CFR part 312, 
use the ASTM E1527-13 Standard or use the ASTM E2247-16 standard, as 
applicable.
    In taking this action, the Agency is allowing for the use of an 
additional recognized standard or customary business practice, in 
complying with a federal regulation. This action does not require any 
person to use the newly revised standard. This action merely allows for 
the use of ASTM International's E2247-16 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property'' for those parties purchasing 
relatively large tracts of rural property or forestlands who want to 
use the ASTM E2247-16 standard in lieu of the following specific 
requirements of the all appropriate inquiries rule or the ASTM E1527-13 
standard.
    The Agency notes that there are no significant differences between 
the regulatory requirements in the All Appropriate Inquiries Rule and 
the standards and practices included in the two ASTM standards (ASTM 
E1527-13 and ASTM E2247-16). To facilitate an understanding of the 
revisions to the ASTM E2247-08 Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Standard for 
Forestland or Rural Property, which was recognized by EPA as compliant 
with the requirements of the all appropriate inquiries regulation in 
2013, and the revised ASTM E2247-16 Standard, which replaces the ASTM 
E2247-08 standard, EPA developed, and placed in the docket for this 
action, the document ``Summary of Updates and Revisions to ASTM E2247 
Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property.'' Also in the docket for this action is the document 
``Comparison of the All Appropriate Inquiries Regulation, the ASTM 
E1527-13 Phase I Environmental Site Assessment Process and the ASTM 
E2247-16 Phase I Environmental Site Assessment Process for Forestland 
or Rural Property Standard.'' This document provides an overview of the 
similarities and slight differences between the AAI regulatory 
requirements and the requirements included in the two ASTM phase I 
environmental site assessment standards.
    This action includes no changes to the All Appropriate Inquiries 
Rule other than to update the reference in the regulation for the ASTM 
E2247 standard. This action replaces the reference to the ASTM E2247-08 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property'' in the All Appropriate Inquiries Rule with the updated ASTM 
E2247-16 standard of the same name. EPA is not seeking comments on the 
standards and practices included in the final rule published at 40 part 
312. Also, EPA is not seeking comments on the ASTM E2247-16 standard. 
EPA's only action with this direct final rule is recognition of the 
ASTM E2247-16 standard as compliant with the final rule, and

[[Page 28012]]

therefore it is only this action on which the Agency is seeking 
comment.

IV. 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. Further, this action will not have a significant impact on 
a substantial number of small entities and, as a result, is not subject 
to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this 
action does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate or the private sector in any one year, 
and does not contain regulatory requirements that might significantly 
or uniquely affect small governments, it is not subject to Sections 
202, 203, 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 (65 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 final rule 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 final rule 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).

A. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. This action allows for 
the use of the ASTM International Standard known as Standard E2247-16 
and entitled ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process for Forestland or Rural 
Property.''

B. Congressional Review Act

    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 312

    Environmental Protection, Administrative practice and procedure, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements, Superfund.

    Dated: June 12, 2017.
Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency 
Management.

    For the reasons set out in the preamble, the Environmental 
Protection Agency amends title 40 chapter I of the code of Federal 
Regulations 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).


0
2. Section 312.11 is amended by revising paragraph (a) to read as 
follows:


Sec.  312.11   References.

* * * * *
    (a) The procedures of ASTM International Standard E2247-16 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Property.'' This standard is available from ASTM International at 
www.astm.org, 1-610-832-9585.
* * * * *
[FR Doc. 2017-12841 Filed 6-19-17; 8:45 am]
 BILLING CODE 6560-50-P