[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Rules and Regulations]
[Pages 52386-52389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13632]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2024-0097; FRL-11691-01-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 development organization. Specifically, EPA is 
amending 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. 
In addition, EPA will 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: This rule is effective on August 23, 2024.

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 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 will be able to

[[Page 52387]]

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 action 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 ASTM's E1527-21 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process,'' or use the standard recognized 
by this action, 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.

------------------------------------------------------------------------
                  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.

IV. Statutory Authority

    This rule amends 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 certain CERCLA 
liability protections 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.
    On March 12, 2024, EPA published a proposed rule (89 FR 17804) to 
amend the All Appropriate Inquiries Rule to reference ASTSM E2247-23 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland or Rural 
Properties,'' and allow for its use to satisfy the requirements of the 
All Appropriate Inquiries Rule. In this document, EPA is finalizing the 
amendment to the All Appropriate Inquiries Rule to reference the 
revised ASTM E2247-23 standard. Recognition of the ASTM E2247-16 
standard practice will be sunset one year following the publication of 
this action.

IV. Summary of Comments

    EPA received no comments on the proposed rule published on March 
12, 2024.

V. What action is EPA taking?

    This rule amends the All Appropriate Inquiries Rule to allow for 
the use of the recently revised 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 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

[[Page 52388]]

requirements for all appropriate inquiries if such parties comply with 
the procedures provided in the ASTM 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 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 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 
will, one year following this action, remove its current recognition of 
the ASTM E2247-16 ``Standard Practice for Environmental Site 
Assessments for Forestland or Rural Property'' as being compliant with 
the AAI Rule. EPA is providing all parties sufficient notice to become 
familiar with the updated industry standard (ASTM E2247-23). To provide 
parties with an adequate opportunity to complete any AAI investigations 
that may be on-going using the ASTM E2247-16 standard at this time, the 
Agency is allowing for a set period of one year following this action 
before removing its recognition of the historic standard (ASTM E2247-
16) as compliant with all appropriate inquiries. The sunset period for 
removal of this recognition from the ASTM E2247-16 ``Standard Practice 
for Environmental Site Assessments for Forestland or Rural Property'' 
is one year from the date of this action.
    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, or 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 action merely allows 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 action also includes the removal of the current recognition of 
the ASTM E2247-16 Standard Practice for Environmental Site Assessments 
for Forestland or Rural Properties as compliant with all appropriate 
inquiries from the All Appropriate Inquiries Rule. This recognition of 
the ASTM E1527-16 standard will be removed from the reference section 
of the All Appropriate Inquiries rule (40 CFR 312.11) one year 
following publication of this final rule.
    This 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.

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 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 any 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 (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 E2247-23 and entitled ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property.'' 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

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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.

    For the reasons discussed in the preamble, the Environmental 
Protection Agency amends 40 CFR part 312 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. Amend Sec.  312.11 by revising paragraph (b) and adding paragraph 
(d) to read as follows:


Sec.  312.11   References.

* * * * *
    (b) The procedures of ASTM International Standard E2247-23 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process for Forestland and Rural 
Property.'' This standard is available from ASTM International at 
www.astm.org, 1-610-832-9585.
* * * * *
    (d) Until June 24, 2025, the procedures of ASTM International 
Standard E2247-16 entitled ``Standard Practice for Environmental Site 
Assessment Process for Forestland and Rural Property.'' This standard 
is available from ASTM International at www.astm.org, 1-610-832-9585.
* * * * *
[FR Doc. 2024-13632 Filed 6-21-24; 8:45 am]
BILLING CODE 6560-50-P