[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Rules and Regulations]
[Pages 76578-76581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27044]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2021-0946; FRL-9334.1-01-OLEM]


Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking 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 developing organization. Specifically, this final 
rule amends the All Appropriate Inquiries Rule (AAI rule) to reference 
ASTM International's E1527-21 ``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, and to remove after one year 
recognition of the previous version of that standard, ASTM E1527-13, as 
compliant with the AAI rule.

DATES: This rule is effective on February 13, 2023.

FOR FURTHER INFORMATION CONTACT: 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: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Does this action apply to me?
II. Statutory Authority
III. Background
IV. Summary of Comments
V. What action is the EPA taking?
VI. Statutory and Executive Order Reviews

I. Does this action apply to me?

    This 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-
21 standard practice to comply with the all appropriate inquiries 
requirements of the Comprehensive Environmental Response, Compensation, 
and Liability

[[Page 76579]]

Act (CERCLA). This 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 Rule at 40 CFR 
part 312, use the ASTM E1527-13 ``Standard Practice for Phase I 
Environmental Site Assessments'' for up to one year after this rule 
becomes effective, use the ASTM E2247-16 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Property,'' or use the standard 
recognized in this final rule, the ASTM E1527-21 standard, to comply 
with the all appropriate inquiries provision of CERCLA.
    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 funding from 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
------------------------------------------------------------------------
Real Estate...............................  531.
Insurance.................................  52412.
Banking/Real Estate Credit................  522292.
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 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) 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 brownfield sites; clarify existing and 
establish new CERCLA liability provisions related to certain types of 
owners of contaminated properties; and provide funding to establish or 
enhance State and Tribal cleanup programs. The Brownfields Amendments 
revised some of the provisions of CERCLA Section 101(35) and limited 
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 Sections 107 and 101(35). The Brownfields Amendments 
clarified the requirement that parties purchasing potentially 
contaminated property undertake ``all appropriate inquiries'' into 
prior ownership and use of property before purchasing the property to 
qualify for protection from CERCLA liability.
    The Brownfields Amendments of 2002 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 rule, the ASTM E1527-05 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process.'' In December 2008, EPA amended the All Appropriate Inquiries 
Rule to recognize another ASTM 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.'' Both standards, the ASTM E1527-05 and the ASTM E2247-08, 
were subsequently revised by ASTM International. EPA referenced the 
revised ASTM E1527-13 standard on August 15, 2013 (78 FR 49690), and 
referenced the revised ASTM E2247-16 Standard on September 15, 2017 (82 
FR 43310), as compliant with the All Appropriate Inquiries Rule. 
Currently, the All Appropriate Inquiries Rule (40 CFR part 312) allows 
for the use of the ASTM E1527-13 standard or the ASTM E2247-16 standard 
to conduct all appropriate inquiries, in lieu of following the 
requirements included in the rule. Once this action is final, the All 
Appropriate Inquiries Rule will allow for the use of the ASTM E1527-21 
standard and will phase out use of the ASTM E1527-13 standard.
    Recently, ASTM International published a revised standard for 
conducting Phase I environmental site assessments. This standard, ASTM 
E1527-21 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process,'' was reviewed by EPA, and 
determined by EPA to be compliant with the requirements of the All 
Appropriate Inquiries Rule.
    On March 14, 2022, EPA published a direct final rule (87 FR 14174) 
to amend the All Appropriate Inquiries Rule to reference ASTM E1527-21 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process,'' and allow for its use to 
satisfy the requirements of the All Appropriate Inquiries Rule. A 
companion proposed rule, also published on March 14, 2022, invited 
comment on the direct final rule and stated that if EPA received 
adverse comment on the proposal to reference the ASTM E1527-21 
standard, the Agency would withdraw the direct final rule. EPA received 
adverse comments on that action and published a notification of 
withdrawal of the direct final rule on May 2, 2022 (87 FR 25572). In 
this document, EPA is finalizing the amendment to the All Appropriate 
Inquiries Rule referencing the ASTM E1527-21 standard practice and 
addressing the comments received in response to the March 14, 2022 
proposed rule.

IV. Summary of Comments

    EPA received thirteen comments on the proposed rule published March 
14, 2022. EPA developed a Response to Comments document and placed it 
in the docket for this action. The comments and EPA's responses are 
summarized here. Most commenters supported the Agency's proposed action 
to amend the All Appropriate Inquiries Rule to add a reference to ASTM

[[Page 76580]]

International's E1527-21 ``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. Several commenters raised concerns related to the 
Agency's decision to continue to recognize a previous ASTM standard, 
ASTM E1527-13, as compliant with the All Appropriate Inquiries Rule. 
Commenters pointed out that the previous version of the ASTM standard, 
ASTM E1527-13, will sunset and will no longer be available from ASTM 
International. Commenters pointed out that the revised standard, ASTM 
E1527-21, was developed with input from industry professionals, users, 
and regulators and its updated provisions offer positive benefits to 
stakeholders. In addition, commenters asserted that the updated 
standard now represents ``good commercial and customary business 
practice,'' and therefore should replace the current ASTM E1527-13 
Phase I Environmental Site Assessment standard referenced by EPA, 
rather than merely being added as an additionally referenced standard. 
Other commenters stated that EPA's continued acceptance of the 2013 
version of the ASTM E1527 standard will create confusion within the 
marketplace because users will need to unnecessarily compare the costs 
and benefits of the use of the two standards when receiving multiple 
bids from potential contractors before environmental site assessment. 
EPA recognizes the commenters' concerns.
    In response to concerns raised by commenters regarding the 
potential confusion associated with the Agency's recognition of a 
historical standard no longer recognized by ASTM International as 
current, or no longer reflecting its current consensus-based, or 
customary business standard, the Agency will remove its reference to 
the ASTM E1527-13 Standard Practice for Environmental Site Assessments. 
To provide parties with an adequate opportunity to complete AAI 
investigations that may be on-going and to allow all parties sufficient 
notice to become familiar with the updated industry standard (ASTM 
E1527-21), the Agency is providing for a sunset period for the removal 
of its recognition of the historic standard (ASTM E1527-13) as 
compliant with all appropriate inquiries. The sunset period for removal 
of the reference to the ASTM E1527-13 Standard Practice for 
Environmental Site Assessments is one year from publication of this 
final rule. A Phase 1 Environmental Site Assessment completed before 
that date using ASTM E1527-13 will be recognized as compliant with the 
All Appropriate Inquiries Rule.
    One commenter requested that EPA provide a formal notice and 
comment opportunity on the ASTM E1527-21 Phase I Environmental Site 
Assessment Process. The commenter also stated that the reference to 
``emerging contaminants'' in the ASTM E1527-21 standard is an ``out of 
scope'' consideration that may lead to additional potential CERCLA 
liability prematurely for landowners and potential buyers. In the March 
14 direct final rule and the accompanying proposed rule, EPA clearly 
stated that it was not requesting comment on the ASTM standard. The 
ASTM standard is not an EPA regulation, and its use is not required to 
comply with the All Appropriate Inquiries Rule or any other EPA 
regulations.
    Industry standards may include elements that are not within the 
scope of the All Appropriate Inquiries Rule. Use of the ASTM E1527-21 
standard is not required for compliance with the All Appropriate 
Inquiries Rule. Therefore, EPA does not consider these additional 
elements as a reason to avoid recognition of the revised E1527-21 
standard as compliant with the All Appropriate Inquiries Rule.
    Two commenters submitted requests for modifications to the ASTM 
E1527-21 standard. One commenter requested changes to the standard's 
requirements for environmental lien searches and to the definitions of 
``recognized environmental conditions.'' Another commenter requested a 
modification to the definition of ``property use limitation'' as it is 
used in the ASTM E1527-21 standard. The ASTM E1527-21 is not an EPA 
standard and the Agency stated in the proposed rule that it was not 
requesting comments on the ASTM standard. Requests to modify the ASTM 
standard should be directed to ASTM. Use of the ASTM standard is not 
required to comply with the All Appropriate Inquiries Rule.

V. What action is the EPA taking?

    This rule amends the All Appropriate Inquiries Rule to allow for 
the use of the recently revised ASTM International standard ASTM E1527-
21 to satisfy the all appropriate inquiries requirements under CERCLA 
for establishing the bona fide prospective purchaser, contiguous 
property owner, and innocent landowner liability protections.
    With this 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 in 
compliance with the requirements for all appropriate inquiries, if such 
parties comply with the procedures provided in the ASTM E1527-21 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.''
    The Agency notes that this action does not require any party to use 
the ASTM E1527-21 standard. Any party conducting all appropriate 
inquiries to comply with CERCLA's bona fide prospective purchaser, 
contiguous property owner, and innocent landowner liability 
protections, or a brownfields site assessment under CERCLA Section 
104(k), may follow the provisions of the All Appropriate Inquiries Rule 
at 40 CFR part 312. This action merely allows for the option of using 
ASTM International's E1527-21 ``Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Process'' by 
those parties purchasing potentially contaminated properties in lieu of 
following the specific requirements of the All Appropriate Inquiries 
Rule.
    The Agency notes that there are no legally significant differences 
between the regulatory requirements and the ASTM E1527-21 standard. To 
facilitate an understanding of the slight differences between the All 
Appropriate Inquiries Rule and the revised ASTM E1527-21 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process,'' as well as the applicability of the E1527-21 
standard to certain types of properties, EPA developed, and placed in 
the docket for this action, the document ``Comparison of All 
Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I 
Environmental Site Assessment Process, and ASTM E1527-21 Phase I 
Environmental Site Assessment Process.'' The document also provides a 
comparison of the two ASTM E1527 standards.
    This action also includes the removal of the current reference in 
the All Appropriate Inquiries Rule to the ASTM E1527-13 Standard 
Practice for Environmental Site Assessments as compliant with all 
appropriate inquiries. The removal of the reference to the historic 
standard as compliant with the all appropriate inquiries requirements 
will take effect one year following publication of this final rule.
    This action includes no changes to the All Appropriate Inquiries 
Rule other than to add a reference to the new

[[Page 76581]]

ASTM E1527-21 standard and remove the current reference to the historic 
ASTM E1527-13 standard as compliant with all appropriate inquiries. 
With this final rule, EPA is recognizing the ASTM E1527-21 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process'' as compliant with the all appropriate inquiries 
requirements. The reference to the ASTM E1527-13 standard as compliant 
with the all appropriate inquiries requirements will be removed from 
the reference section of the AAI (40 CFR 312.11) one year following 
publication of this final rule.

VI. 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 E1527-21 ``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 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 is exempt from review under 
Executive Order 12866, this 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 of 1995 (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. Therefore, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (Pub. L. 104-113; 15 U.S.C. 272) (NTTAA) 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 consensus 
standards and decrease 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 regulations; (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.
    This action is compliant with the spirit and requirements of the 
NTTAA. This action allows for the use of the ASTM International 
standard known as Standard E1527-21 and entitled ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process.'' By taking this action, EPA is fulfilling the 
intent and requirements of NTTAA.
    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).

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency 
Management.

    For the reasons set out in the preamble, 40 CFR part 312 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

0
2. Section 312.11 is amended by:
0
a. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c), 
respectively;
0
b. Adding a new paragraph (a); and
0
c. Revising newly redesignated paragraph (c).
    The addition and revision read as follows:


Sec.  312.11   References.

* * * * *
    (a) The procedures of ASTM International Standard E1527-21 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.
* * * * *
    (c) Until February 13, 2024, 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. 2022-27044 Filed 12-14-22; 8:45 am]
BILLING CODE 6560-50-P