[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.
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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.
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]
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