[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Proposed Rules]
[Pages 17804-17808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05232]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2024-0097; FRL-11691-02-OLEM]


Standards and Practices for All Appropriate Inquiries; Notice of 
Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing 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 
development organization. Specifically, EPA is proposing to amend the 
All Appropriate Inquiries Rule to reference ASTM International's E2247-
23 ``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 requirements for 
conducting all appropriate inquiries under the Comprehensive 
Environmental Response, Compensation, and Liability Act. EPA is 
additionally proposing to remove after one year, from the All 
Appropriate Inquiries Rule, recognition of the previous version of that 
standard, ASTM E2247-16, as compliant with the All Appropriate 
Inquiries Rule.

DATES: Written comments must be received by April 11, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2024-0097 at www.regulations.gov: Follow the on-line

[[Page 17805]]

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 and multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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. Why is EPA issuing this proposed rule?
II. Does this action apply to me
III. What should I consider as I prepare my Comments for EPA?
IV. Statutory Authority
V. Background
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews

I. Why is EPA issuing this proposed rule?

    With this action EPA proposes to amend the All Appropriate 
Inquiries Rule at 40 CFR part 312 to reference ASTM International's 
E2247-23 ``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 requirements for 
conducting all appropriate inquiries under CERCLA. EPA also is 
proposing to sunset its reference to E2247-16, the historic version of 
the same ASTM standard, as compliant with the All Appropriate Inquiries 
Rule.
    EPA is not proposing any changes to regulatory requirements in the 
All Appropriate Inquiries Rule. Therefore, EPA is not seeking comments 
on the standards and practices included in the All Appropriate 
Inquiries Rule at 40 CFR part 312. EPA is only seeking comments on the 
Agency's decision to reference the revised ASTM E2247-23 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property'' as compliant with 
the AAI regulation, and to sunset the reference to the previous version 
of the standard, ASTM E2247-16 as compliant with the AAI Rule. EPA is 
not seeking comments on the ASTM E2247-23 standard.
    EPA will address all public comments in any subsequent final rule 
based on this proposed rule. We do not intend to institute a second 
comment period on this action. Any parties interested in commenting on 
this proposal must do so at this time. For further information, please 
see the information provided in the ADDRESSES section of this document.

II. 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 will be able to use the 
ASTM E2247-23 standard practice to comply with the all appropriate 
inquiries requirements of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA). This proposed rule will 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's E1527-21 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process,'' or use the standard recognized 
in this proposed rule, the ASTM E2247-23 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 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 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.

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           Industry category                        NAICS code
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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 FOR 
FURTHER INFORMATION CONTACT section of this document.

III. What should I consider as I prepare my comments for EPA?

    Direct your comments to Docket ID No. EPA-HQ-OLEM-2024-0097. 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.
    A. Submitting CBI: Do not submit any information that you consider 
to be CBI or otherwise protected through www.regulations.gov or email. 
You can only submit CBI to EPA via U.S. mail at: HQ EPA Docket Center, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 
20460. Clearly mark all information that you claim to be CBI. For CBI 
submitted on a disk or CD ROM that you mail to EPA, mark the outside of 
the disk or CD ROM as CBI and then identify electronically within the 
disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket.

[[Page 17806]]

Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments: When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggested alternative.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    The www.regulations.gov website 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 or 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 https://www2.epa.gov/edockets/commenting-epa-dockets.
    C. The 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 
E2247-23 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process for Forestland or Rural 
Property'' 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 20460.

IV. Statutory Authority

    EPA is proposing to amend the All Appropriate Inquiries Rule that 
sets 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 
protection and for conducting site characterizations and assessments 
with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).

V. 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 cleanup brownfields 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. 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 2002 Brownfields Amendments to CERCLA 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 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 Standard 
Process.'' In December 2008, EPA used a direct final rule to amend the 
All Appropriate Inquiries Rule to recognize another ASTM standard as 
compliant, 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, and 
the revised versions were referenced by EPA as compliant with the All 
Appropriate Inquiries Rule. EPA referenced the ASTM E1527-13 standard 
on August 15, 2013 (78 FR 49690), referenced the ASTM E1527-21 Standard 
on December 15, 2022 (87 FR 76578), and referenced the ASTM E2247-16 
standard on September 15, 2017 (82 FR 43310). Currently, the All 
Appropriate Inquiries Rule (40 CFR part 312) allows for the use of the 
ASTM E1527-21 standard or the ASTM E2247-16 standard to conduct all 
appropriate inquiries, in lieu of following requirements included in 
the Rule.
    Recently, ASTM International published a revised standard for 
conducting Phase I environmental site assessments for forestland or 
rural properties. This standard, ASTM E2247-23, ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process for Forestland or Rural Properties,'' was reviewed by EPA, and 
determined by EPA to be compliant with the requirements of the All 
Appropriate Inquiries Rule.
    Once this action is final, the All Appropriate Inquiries Rule also 
will allow for the use of the ASTM E2247-23 standard. The reference to 
the ASTM E2247-16 will be sunset one year following the publication of 
a final rule.

VI. What action is EPA taking?

    This proposed rule will amend the All Appropriate Inquiries Rule to 
allow for the use of the ASTM E2247-23 standard to conduct all 
appropriate inquiries as required under CERCLA for establishing the 
bona fide prospective purchaser, contiguous property owner, and 
innocent landowner liability protections.
    With this proposed 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

[[Page 17807]]

E2247-23, ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process for Forestland or Rural 
Property.'' EPA made the determination that the ASTM E2247-23 Standard 
is compliant with the All Appropriate Inquiries regulation based upon 
the Agency's finding, after reviewing the elements of the ASTM standard 
practice and comparing them to the requirements set forth in the All 
Appropriate Inquiries Rule.
    Also, as part of this proposed action, to avoid any 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 is proposing to remove its current reference to the ASTM 
E2247-16 ``Standard Practice for Environmental Site Assessments for 
Forestland or Rural Property.'' To provide parties with an adequate 
opportunity to complete any AAI investigations that may be on-going 
using the ASTM E2247-16 standard at the time that EPA publishes a final 
rulemaking for this action and to allow all parties sufficient notice 
to become familiar with the updated industry standard (ASTM E2247-23), 
the Agency is proposing to a sunset period for the removal of its 
recognition of the historic standard (ASTM E2247-16) as compliant with 
all appropriate inquiries. The sunset period for removal of the 
reference to the ASTM E2247-16 Standard Practice for Environmental Site 
Assessments for Forestland or Rural Property will be one year from the 
date on which the Agency publishes a final rule recognizing the updated 
standard, ASTM E2247-23.
    The Agency notes that this action will not require any party to use 
the ASTM E2247-23 standard. Any party conducting all appropriate 
inquiries to comply with CERCLA's bona fide prospective purchaser, 
contiguous property owner, and innocent landowner liability protections 
may continue to follow the provisions of the All Appropriate Inquiries 
Rule at 40 CFR part 312, or continue to use the ASTM E1527-21 Phase I 
Environmental Site Assessment Standard.
    This proposed action merely will allow for the use of the ASTM 
E2247-23 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process for Forestland or Rural 
Property'' for those parties purchasing potentially contaminated 
properties who want to use the ASTM E2247-23 standard in lieu of 
following specific requirements of the All Appropriate Inquiries Rule.
    This proposed action also includes the removal of the current 
reference in the All Appropriate Inquiries Rule to the ASTM E2247-16 
Standard Practice for Environmental Site Assessments for Forestland or 
Rural Properties as compliant with all appropriate inquiries. EPA is 
proposing that the removal of the reference to the historic standard 
will take effect one year following publication of a final rule that 
includes this proposed action.
    The Agency notes that there are no legally significant differences 
between the regulatory requirements and the ASTM E2247-23 standard. To 
facilitate an understanding of the slight differences between the All 
Appropriate Inquiries Rule, the ASTM E2247-23 ``Phase I Environmental 
Site Assessment Standard for Forestland or Rural Property,'' and the 
ASTM E1527-21 ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process,'' EPA developed, and 
placed in the docket for this proposed rule, the document ``Comparison 
of All Appropriate Inquiries Regulation, the ASTM E2247-23 Phase I 
Environmental Site Assessment Process for Forestland or Rural Property, 
and ASTM E1527-21 Phase I Environmental Site Assessment Process.'' The 
document also provides a comparison of the ASTM E2247-23 standard to 
the ASTM E2247-16 version of the standard.
    EPA's proposed action includes no changes to the All Appropriate 
Inquiries Rule other than to add an additional reference to the new 
ASTM E2247-23 standard and to sunset the reference to the historic ASTM 
E2247-16 standard. EPA is not seeking comments on the standards and 
practices included in the All Appropriate Inquiries Rule published at 
40 CFR part 312. Also, EPA is not seeking comments on the ASTM E2247-23 
standard. EPA's only action with this proposed rule is recognition of 
the ASTM E2247-23 standard as compliant with the All Appropriate 
Inquiries Rule and sunsetting of recognition of the historic standard 
and, therefore, it is only this action on which the Agency is seeking 
comment.
    EPA is proposing this action because the Agency wants to provide 
additional flexibility for brownfields grant recipients or other 
entities that may benefit from the use of the ASTM E2247-23 standard. 
We believe that this proposed action will allow for the use of a 
tailored standard that was developed by a recognized standards 
developing organization, reviewed by EPA, and determined to be 
equivalent to the Agency's All Appropriate Inquiries Rule. This action 
does not disallow the use of the previously recognized ASTM E1527-21 
Phase I Environmental Site Assessment Standard, and it will not alter, 
in anyway, the requirements of the previously promulgated All 
Appropriate Inquiries Rule. In addition, this proposal potentially will 
increase flexibility for some parties who may make use of the new 
standard, without placing any additional burden on those parties who 
prefer to use either the ASTM E1527-21 standard or follow the 
requirements of the All Appropriate Inquiries Rule when conducting all 
appropriate inquiries.
    By proposing this action, EPA is fulfilling the intent and 
requirements of the National Technology Transfer and Advancement Act 
(NTTAA), Public Law 104-113.

VII. 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 proposed 
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 E2247-23 ``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 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,

[[Page 17808]]

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 (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 the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113.
    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

    Environmental protection, Administrative practice and procedure, 
Hazardous substances.

Barry N. Breen,
Principle Deputy Assistant Administrator, Office of Land and Emergency 
Management.
[FR Doc. 2024-05232 Filed 3-11-24; 8:45 am]
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