Proposed Rule2024-05232
Standards and Practices for All Appropriate Inquiries; Notice of Proposed Rulemaking
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 12, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 49 (Tuesday, March 12, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a>: Follow the on-line
[[Page 17805]]
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://regulations.gov">regulations.gov</a>. 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 <a href="http://www2.epa.gov/dockets/commenting-epa-dockets">http://www2.epa.gov/dockets/commenting-epa-dockets</a>.
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 <a href="/cdn-cgi/l/email-protection#6a251c0f18070f130f18441a0b1e180309030b2a0f1a0b440d051c"><span class="__cf_email__" data-cfemail="a1eed7c4d3ccc4d8c4d38fd1c0d5d3c8c2c8c0e1c4d1c08fc6ced7">[email protected]</span></a>
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
<a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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:
<bullet> Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
<bullet> Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
<bullet> Describe any assumptions and provide any technical
information and/or data you used.
<bullet> If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
<bullet> Provide specific examples to illustrate your concerns and
suggested alternative.
<bullet> Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
<bullet> Make sure to submit your comments by the comment period
deadline identified.
The <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="https://www2.epa.gov/edockets/commenting-epa-dockets">https://www2.epa.gov/edockets/commenting-epa-dockets</a>.
C. The docket: All documents in the docket are listed in the
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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]
BILLING CODE 6560-50-P
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