Landowner Defenses to Liability Under the Oil Pollution Act of 1990: Standards and Practices for Conducting All Appropriate Inquiries, 2146-2156 [E8-329]
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Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 / Rules and Regulations
8. Amend § 309.6 by adding the
following new sentence at the end of
paragraph (b)(3) to read as follows:
I
§ 309.6
Disclosure of exempt records.
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(b) * * *
(3) * * * Finally, the Director, or
designee, may in his or her discretion
and for good cause, disclose reports of
examination or other confidential
supervisory information concerning any
depository institution or other entity
examined by the Corporation under
authority of Federal law to: any other
Federal or State agency or authority
with supervisory or regulatory authority
over the depository institution or other
entity; any officer, director, or receiver
of such depository institution or entity;
and any other person that the
Corporation determines to be
appropriate.
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By Order of the Board of Directors.
Dated at Washington, DC, the 19th day of
December, 2007. Federal Deposit Insurance
Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. E8–294 Filed 1–11–08; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 137
[Docket No. USCG–2006–25708]
RIN 1625–AB09
Landowner Defenses to Liability Under
the Oil Pollution Act of 1990:
Standards and Practices for
Conducting All Appropriate Inquiries
Coast Guard, DHS.
Final rule.
AGENCY:
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ACTION:
SUMMARY: The Coast Guard is
establishing standards and practices
concerning the ‘‘all appropriate
inquiries’’ element of a defense to
liability of an owner or operator of a
facility that is the source of a discharge
or substantial threat of discharge of oil
into the navigable waters or adjoining
shorelines or the exclusive economic
zone. To be entitled to the defense,
those persons must show, among other
elements not addressed in this
rulemaking, that, before acquiring the
real property on which the facility is
located, they had made all appropriate
inquiries into its previous ownership
and uses to determine the presence or
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likely presence of oil. This rule is
consistent with a final rule on this
subject published by the Environmental
Protection Agency.
DATES: This final rule is effective
February 13, 2008.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2006–25708 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call
Benjamin White, National Pollution
Funds Center, Coast Guard, telephone
202–493–6863. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
Regulatory History
On June 12, 2007, we published a
notice of proposed rulemaking (NPRM)
entitled ‘‘Landowner Defenses to
Liability Under the Oil Pollution Act of
1990: Standards and Practices for
Conducting All Appropriate Inquiries’’
in the Federal Register (72 FR 32232).
We received no comments on the
proposed rule. No public meeting was
requested and none was held. The Coast
Guard is, therefore, adopting the NPRM
as published and without change as a
final rule.
Background and Purpose
In general, under the Oil Pollution
Act of 1990 (33 U.S.C. 2701, et seq.)
(OPA 90), an owner or operator of a
facility that is the source of a discharge,
or a substantial threat of discharge, of
oil into the navigable waters or
adjoining shorelines or the exclusive
economic zone is liable for damages and
removal costs resulting from the
discharge or threat. See 33 U.S.C.
2702(a). Under OPA 90, that person is
known as a ‘‘responsible party.’’ See 33
U.S.C. 2701(32).
The Coast Guard and Maritime
Transportation Act of 2004 (Pub. L.
108–293) (the 2004 Act) amended OPA
90, at 33 U.S.C. 2703(d)(4), by creating
an ‘‘innocent landowner’’ defense to
liability for those persons who could
demonstrate, among other requirements,
that before acquiring the real property
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on which the facility is located, they did
not know, and had no reason to know
that oil that is the subject of the
discharge or substantial threat of
discharge was located on, in, or at the
facility. See 33 U.S.C. 2703(d)(2)(A).
This is done by establishing that, before
it acquired the real property on which
the facility is located, it carried out ‘‘all
appropriate inquiries’’ into its previous
ownership and uses according to
‘‘generally accepted good commercial
and customary standards and
practices.’’ See 33 U.S.C.
2703(d)(4)(A)(i). The Coast Guard is
required to establish, by regulation, the
standards and practices for carrying out
all appropriate inquiries (33 U.S.C.
2703(d)(4)(B)), which is the subject of
this rulemaking.
This rulemaking applies to persons
planning to acquire real property on
which a facility, as defined under 33
U.S.C. 2701(9), is located who choose to
take steps necessary to protect
themselves from liability should
unknown oil that is the subject of a
discharge or substantial threat of
discharge be found at the facility after
they acquire it. We call these persons
‘‘landowners’’ or ‘‘owners’’ in this
preamble. Should prospective
landowners opt for this protection, they
may find that they have already
complied with this rule if they have
complied with ASTM International
(ASTM) E 1527–05, ‘‘Standard Practice
for Environmental Site Assessments:
Phase I Environmental Site Assessment
Process.’’ The industry standard ASTM
E 1527–05, is consistent with this rule
and is compliant with the statutory
criteria for all appropriate inquiries.
Persons conducting all appropriate
inquiries may use the procedures
included in the ASTM E 1527–05
standard to comply with this rule. For
more information on the ASTM
standard, see the ‘‘ASTM Standard E
1527–05’’ section in this preamble.
Note that this rule addresses only one
of several elements that must be
complied with in order to avail oneself
of this protection. The element
addressed in this rule is called the ‘‘allappropriate-inquiries’’ element found in
33 U.S.C. 2703(d)(4).
Scope of the Rule
Congress included in the 2004 Act a
list of criteria that the Coast Guard must
address in their regulations for
establishing standards and practices for
conducting all appropriate inquiries.
The criteria may be found in 33 U.S.C.
2703(d)(4)(C). This rulemaking is
limited only to providing those
standards and practices relative to the
‘‘all appropriate inquiries’’ element.
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This rulemaking does not address the
other requirements in 33 U.S.C. 2703
which also must be met to qualify for
the innocent-landowner defense.
The rule would not apply to real
property purchased by a nongovernmental entity or non-commercial
entity for residential use or other similar
uses where an inspection and a title
search of the facility and the real
property on which the facility is located
reveal no basis for further investigation.
In those cases, 33 U.S.C. 2703(d)(4)(E)
states that the inspection and title
search satisfy the requirements for all
appropriate inquiries.
Also, the rule would not affect the
existing OPA 90 liability protections for
State and local governments that acquire
a facility involuntarily in their functions
as sovereigns under 33 U.S.C.
2701(26)(B)(i) and 33 U.S.C.
2703(d)(2)(B). Involuntary acquisition of
facilities by State and local governments
do not fall under the all-appropriateinquiries provision of 33 U.S.C.
2703(d)(4).
Consultation With Other Agencies
Under 33 U.S.C. 2703(d)(4)(B), we are
required to consult with the
Environmental Protection Agency (EPA)
to develop regulations establishing
standards and practices for conducting
‘‘all appropriate inquiries.’’ On
November 1, 2005, EPA published a
final rule in the Federal Register (70 FR
66070) establishing standards and
practices for conducting all appropriate
inquiries as required by sections
101(35)(B)(ii) and (iii) of the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) (42 U.S.C. 9601, et seq.)
found at 42 U.S.C. 9601(35)(B)(ii) and
(iii). CERCLA’s liability provision
applies to releases or threatened releases
of ‘‘hazardous substances’’, which is
defined to exclude most forms of oil.
These regulations are located in 40 CFR
part 312. EPA used a negotiated
rulemaking process to develop their
standards and practices for conducting
all appropriate inquiries under
CERCLA. EPA’s Negotiated Rulemaking
Committee included interested parties
from environmental interest groups; the
environmental justice community;
federal, state, tribal, and local
governments; real estate developers,
bankers and lenders; and,
environmental professionals.
The all-appropriate-inquiries
provisions of OPA 90 and CERCLA are
similar in many respects, but not
identical. The CERCLA provision has a
broader scope than the OPA provision.
It addresses certain liability defense
provisions that are unique to CERCLA,
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involving persons who may not be
affected by this rule, such as contiguous
property owners and bona fide
prospective purchasers. While
differences between OPA 90 and
CERCLA have required certain
differences between the Coast Guard’s
final rule and EPA’s final rule, we have
coordinated with EPA to ensure that the
two rules have been rendered as
consistent as possible within statutory
constraints. Maintaining consistency
between the two rules helps standardize
practices within the Federal
Government.
ASTM Standard E 1527–05
ASTM International (ASTM) E 1527–
05, ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process,’’ is the current voluntary
industry standard that defines good
commercial and customary practice in
the United States for conducting an
environmental site assessment of a
parcel of commercial real estate with
respect to oil under OPA 90 and
hazardous substances under CERCLA.
The 2004 Act, at 33 U.S.C. 2703
(d)(4)(D)(ii), refers to ASTM E 1527–97,
which is no longer available from ASTM
and has been replaced by ASTM E
1527–05. Both the EPA and the Coast
Guard agree that the new ASTM E
1527–05 is the active industry standard
and is consistent with Congressional
intent. Persons conducting all
appropriate inquiries are permitted to
use the procedures included in the
ASTM E 1527–05 standard to comply
with this rule, but use of the ASTM is
not mandatory.
Regulatory Evaluation
Executive Order 12866
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order.
A final Regulatory Evaluation follows:
Compliance with this rule is required
only for those persons engaging in a
commercial real estate transaction who
choose to take steps necessary to protect
themselves from liability should
unknown oil that is the subject of a
discharge or substantial threat of
discharge be found at the facility after
they acquire it.
The following analysis of the
economic impacts associated with this
rule relies heavily upon the data
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collected and the assumptions made in
the Environmental Impact Analysis of
EPA’s final rule, ‘‘Economic Impact
Analysis for the Final All Appropriate
Inquiries Regulation,’’ Docket ID No.
SFUND–2004–0001 found at https://
www.regulations.gov/fdmspublic/
component/main or at EPA Docket
Center, EPA West Building, Room B102,
1301 Constitution Avenue, NW.,
Washington, DC. EPA surveyed all
publicly available literature on
environmental assessments of sites to
determine what standard industry was
customarily using. These assessments
correspond to the all appropriate
inquiries provision being addressed in
this rulemaking and are commonly
known as Phase I environmental site
assessments (Phase I ESAs). EPA
determined that the 2000 edition of
ASTM E 1527 (i.e., ASTM E 1527–00)
would be their regulatory baseline. This
baseline represented the ‘‘no action’’
scenario to which all regulatory
alternatives were compared and their
economic impacts were measured.
ASTM E 1527–00 would have been
applied by industry absent EPA’s
regulation, because this voluntary
industry standard represented
‘‘generally accepted good commercial
and customary practices.’’ This
assumption was confirmed by the
members of EPA’s Negotiated
Rulemaking Committee (See the
‘‘Consultation with Other Agencies’’
section of this preamble.). To further
validate their assumption, EPA received
no public comments on this aspect of its
Economic Impact Analysis. In addition,
ASTM International states that ASTM E
1527–97 (the edition referred to in the
2004 Act) is no longer available because,
when a new version of a standard is
released, previous versions of the
standard are no longer the active
industry standard. The Coast Guard,
after independently contacting ASTM
International, concurs that the ASTM E
1527–00 standard more accurately
reflects the current market conditions
than the E 1527–97 standard referenced
in OPA 90 as the acceptable interim
standard (33 U.S.C. 2703(d)(4)(D)(ii)).
The Coast Guard therefore uses the
ASTM E 1527–00 standard as its
regulatory baseline for its analysis of the
economic impacts associated with this
rule.
Historically, Phase I ESAs have been
used towards providing liability
protection to individuals under
CERCLA. A recent survey conducted by
Environmental Data Resources, Inc.
(EDR) indicates that approximately 55
percent of all Phase I ESAs are driven
exclusively by a need for the landowner
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to qualify for protection from CERCLA
liability. The remaining 45 percent are
driven by a desire to assess other
business environmental risk concerns
(i.e., asbestos, lead-based paint, oil,
etc.).
As previously discussed in the
‘‘Consultation with Other Agencies’’
section of this preamble, this rule is
consistent with EPA’s final rule. The
scope of EPA’s rulemaking however is
much larger than this rule. As such, the
economic impacts of this rule are a
subset of the impacts estimated by
EPA’s rulemaking. This reduction in
economic impact results primarily from
the lower number of Phase I ESAs
expected to be conducted annually
under this rule compared to EPA’s final
rule.
As was the case with EPA’s
rulemaking, this rule is expected to
result in the following economic
impacts:
(1) A reduced burden for the conduct
of interviews in those cases where the
facility and the real property on which
the facility is located is abandoned. The
new requirement requires only that
neighboring property owners and
occupants be interviewed and not the
current owners and occupants of the
abandoned property. This burden would
range from no change to a decrease of
0.5 hour per Phase I ESA depending on
the type and size of the facility and the
real property on which the facility is
located.
(2) An increased burden in those
cases where past owners or occupants of
the facility and the real property on
which the facility is located need to be
interviewed. This would involve the
additional effort required to locate and
interview past owners and occupants.
This increased burden would range
from 1 hour to 2 hours per Phase I ESA
depending on the type and size of the
facility and the real property on which
the facility is located.
(3) An increased burden associated
with documenting recorded
environmental cleanup liens. This
increased burden would involve
additional time spent in preparing the
Phase I ESA report. This increased
burden would range from an additional
0.5 hour to 1 hour per Phase I ESA
depending on the size and type of the
facility and the real property on which
the facility is located.
(4) An increased burden for
documenting the reasons for the price
and fair market value of a facility and
the real property on which the facility
is located in those cases where the
purchase price paid is significantly
below its fair market value. This
increased burden would involve
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interviews with local government
officials and increased time spent in
preparing the Phase I ESA report. This
increased burden would reflect an
additional 0.5 hour per Phase I ESA for
all sizes and types of facilities and the
real properties on which the facilities
are located.
(5) An increased burden for recording
information about the degree of
obviousness of the presence or likely
presence of oil at a facility and the real
property on which the facility is
located. This increased burden would
involve additional time spent in
preparing the Phase I Environmental
report. This increased burden would
range from 0.5 hour to 1 hour per Phase
I ESA depending on the type and size
of the facility and the real property on
which the facility is located.
Using a weighted labor rate of $51.20/
hour applied to the activities (as
outlined above) required as a result of
their regulation (as they vary from those
required in their regulatory baseline),
EPA determined that there would be an
incremental cost ranging from $52 to
$58 per Phase I ESA (the low end
estimate assumes that 15 percent of
properties are abandoned, while the
high end estimate assumes that 28
percent of properties are abandoned).
Our analysis simplifies this range as an
average incremental cost of $55 per
Phase I ESA.
A. Analysis Calculations and Results
Using data from EPA’s final rule and
extrapolated for the period from 2007 to
2016, there would be an average of
332,038 Phase I ESAs conducted
annually. As previously mentioned, the
incremental cost of conducting a Phase
I ESA to comply with EPA’s rulemaking
above and beyond what was required
under ASTM E 1527–00 as calculated by
EPA’s rulemaking would be
approximately $55 per ESA.
B. Estimated Annual Number of OPA
90-Related Phase I ESAs
This analysis is severely limited by
the lack of data available which would
allow the number of Phase I ESAs
conducted applicable to this rule to be
segregated from the total population of
Phase I ESAs conducted.
In order to put an upward bound on
the costs associated with this rule, this
analysis first describes the absolute
upper bound scenario (i.e., that all
commercial real estate transactions not
exclusively conducted for CERCLA
liability protection requiring a Phase I
ESA would be impacted by this rule).
Next the Coast Guard developed a more
likely scenario that takes into account
that Phase I ESAs for certain
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commercial real estate transactions are
outside the scope of this rule. We
acknowledge that, of all of the
commercial real estate transactions that
occur annually, a likely small
percentage would involve—
1. A facility and the real property on
which the facility is located where a
discharge or substantial threat of
discharge of oil may impact the
navigable waters or exclusive economic
zone of the United States; and
2. A Phase I ESA that was conducted
for establishment of the innocent
landowner liability protection provision
under OPA 90 and not to assess
environmental risk concerns not related
to oil (e.g., lead-based paint
contamination, asbestos, CERCLA
hazardous substances, etc.).
C. Upper Bound Cost Scenario
The estimated incremental cost of this
scenario, where all future Phase I ESAs
not conducted specifically for CERCLA
liability protection (i.e., 45 percent as
per the results of EDR’s survey
mentioned above) are impacted by this
rule, would be approximately $8.2
million per year.
Cost calculation 1—Estimated Annual
Number of Coast Guard related
Phase I ESAs
332,038 Phase I ESAs × 0.45 =
149,417 Phase I ESAs
Estimated Annual Cost of Coast Guard
related Phase I ESAs
149,417 Phase I ESAs × $55/ESA =
$8,217,935 per year.
D. Most Likely Cost Scenario
To more accurately reflect the scope
of this rule, certain commercial real
estate transactions involving a Phase I
ESA from EPA’s analysis would have to
be removed from this analysis. Those
include transactions where a discharge
or substantial threat of discharge of oil
from a facility and the real property on
which the facility is located would not
have the possibility of impacting the
navigable waters or exclusive economic
zone of the United States and
transactions which are conducted for
substances other than oil. Absent the
data to make more than an
approximation, we assumed that five
percent of the total number of Phase I
ESAs may realistically reflect the
number of Phase I ESAs within the
scope of this rule. Under this
assumption, the estimated cost
associated with this rule would be
significantly reduced. The estimated
incremental cost under this scenario is
approximately $913,110 per year.
Cost Calculation 2—Estimated Annual
Number of Coast Guard related Phase I
ESAs.
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332,038 Phase I ESAs × 0.05 = 16,602
Phase I ESAs.
Estimated Annual Cost of Coast Guard
related Phase I ESAs:
16,602 Phase I ESAs × $55/ESA =
$913,110 per year.
ASTM International has since
updated their ASTM E 1527 standard.
Their new standard is ASTM E 1527–05.
Both EPA and Coast Guard recognize
that this new standard is consistent with
their rulemakings on the subject. See the
Federal Register (70 FR 66081). Because
the new standard is consistent with the
EPA final rule, which went into effect
on November 1, 2006, and provides
documentation for both hazardous
substances and oil, it is likely that all
prudent prospective commercial
landowners will be using the more
rigorous ASTM standard for their real
estate transactions well before our rule
becomes effective. Thus, the possible
economic impact attributed to this rule
might be reduced to a negligible value.
The Coast Guard further notes that there
have been no instances to date where a
responsible party has attempted to use
the interim innocent-landowner defense
to liability provision under OPA 90.
EPA qualitatively assessed the
benefits for their final rule. Of these
benefits, only one is applicable to our
rule due to our much smaller regulatory
scope, namely the increased level of
certainty with regard to OPA 90 liability
provided to prospective owners of
facilities and the real properties on
which they are located with potential
oil discharges. The Coast Guard, as was
the case with EPA’s analysis, is not able
to quantify, with any significant level of
confidence, the exact proportion of
benefits associated with the rule. For
these reasons, the costs and benefits can
not be directly compared. However,
because complying with this rule is
required only for those persons who
choose to take steps necessary to protect
themselves from liability should
unknown oil that is the subject of a
discharge or substantial threat of
discharge be found at the facility after
they acquire it, it can be assumed that
persons would only do so if the
potential benefits to them associated
with this protection from liability
outweigh their costs of compliance.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
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dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
As previously stated in the regulatory
evaluation section above, compliance
with this rule is only required for those
entities, regardless of their operations,
involved in a real estate transaction who
choose to take steps necessary to protect
themselves from liability should
unknown oil that is the subject of a
discharge or substantial threat of
discharge be found at the facility after
they acquire it. Therefore, it assumed
that entities across all industries, as
defined by the North American Industry
Classification System (NAICS), could
potentially be affected.
The Regulatory Flexibility Act and the
Small Business Regulatory Enforcement
Fairness Act of 1996 require Federal
agencies to measure the regulatory
impacts of the rule to determine
whether there will be a significant
economic impact on a substantial
number of small entities. Entities,
however, may operate at multiple
physical locations. For example, most
family-owned restaurants operate at a
single location, while chain restaurants
have multiple locations. Thus, the
annual number of transactions per
entity, and therefore the demand for
Phase I ESAs, is a function of the
number of establishments an entity
owns.
According to 2001 U.S. Census data,
the distribution of establishments by
entity size of the regulated community
is as follows:
Less than 100 employees: 81%
100 to 499 employees: 5%
500 to 1,499 employees: 2%
1,500 employees or more: 12%
According to EPA’s Office of Policy,
Economics, and Innovations and EPA’s
National Center for Environmental
Economics, it is a common practice
when a proposed regulation has the
potential of affecting all industries to
consider all entities with less than 500
employees as small. According to 2001
U.S. Census data, when small entities
are defined as entities with less than
500 employees, small entities own 86
percent of all establishments. Using
EPA’s assumption that small entities are
equally likely to engage in commercial
real estate transactions as large ones, we
estimate that 86 percent of all
commercial real estate transactions
completed annually involve small
entities. Applying this 86 percent to the
‘‘Most Likely Cost Scenario’’ and the
‘‘Upper Bound Cost Scenario’’ (See
‘‘Regulatory Evaluation’’ in this
preamble.) provides a range in the
number of potential transactions
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occurring annually of between 14,278
and 128,499.
Based on 2001 Census Bureau data,
the average annual revenue per
employee for an entity is approximately
$24,000. Therefore, even for a small
entity receiving the minimum average
annual revenue of $24,000 that makes
one transaction a year (a very
conservative assumption), the annual
cost impact of $55 would represent only
0.23 percent of annual revenues.
Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this final rule
will not have a significant economic
impact on a substantial number of small
entities.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding this rule so they could
better evaluate its effects on them and
participate in the rulemaking. The Coast
Guard received no requests for
assistance from small entities
concerning this rulemaking and
provided none. Small businesses may
send comments on the actions of
Federal employees who enforce, or
otherwise determine compliance with,
Federal regulations to the Small
Business and Agriculture Regulatory
Enforcement Ombudsman and the
Regional Small Business Regulatory
Fairness Boards. The Ombudsman
evaluates these actions annually and
rates each agency’s responsiveness to
small business. If you wish to comment
on actions by employees of the Coast
Guard, call 1–888–REG–FAIR (1–888–
734–3247).
Collection of Information
This rule calls for a new collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520).
Title: Landowner Defenses to Liability
under the Oil Pollution Act of 1990:
Standards and Practices for Conducting
All Appropriate Inquiries.
Summary of the Collection of
Information: For landowners choosing
to avail themselves of the innocentlandowner defense, they or their
environmental professionals must
conduct all the appropriate inquiries
specified in the rule. Depending upon
the particular case, this may involve
interviews, research, and reports.
Need for Information: This rule is
needed to assist prospective landowners
in establishing the innocent-landowner
defense.
Proposed Use of Information: The
information could be used by persons if
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their liability under OPA 90 for the
discharge or substantial threat of
discharge of oil were challenged in a
court.
Description of the Respondents: The
respondents include anyone engaging in
a commercial real estate transaction that
may desire to assert an innocent
landowner defense to liability under
OPA 90.
Number of Respondents: We estimate
that there would be 16,602 respondents.
This is based on an estimate made in the
‘‘Regulatory Evaluation’’ section of this
preamble.
Frequency of Response: 1 hour per
response.
Burden of Response: $67 per
response.
Estimate of Total Annual Burden:
16,602 respondents × 1 hour per
response × $67 per response =
$1,112,334
As required by 44 U.S.C. 3507(d), we
submitted a copy of this rule to the
Office of Management and Budget
(OMB) for its review of the collection of
information. OMB has approved the
collection effective February 13, 2008.
The collection will be added to 33 CFR
part 137. The corresponding approval
number is OMB Control Number 1625–
0111, which expires on February 13,
2011.
You are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
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Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. We have analyzed
this rule under that Order and have
determined that it does not have
implications for federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 or more in any one year.
Though this rule would not result in
such an expenditure, we do discuss the
effects of this rule elsewhere in this
preamble.
Taking of Private Property
This rule would not effect a taking of
private property or otherwise have
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taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
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procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule uses the following voluntary
consensus standard: ASTM E 1527–05,
‘‘Standard Practice for Environmental
Site Assessments: Phase I
Environmental Site Assessment
Process.’’ The section that references
this standard and the location where
this standard is available is listed in
§ 137.15. Persons conducting all
appropriate inquiries may use the
procedures included in the ASTM E
1527–05 standard to comply with this
rule.
Environment
We have analyzed this rule under
Commandant Instruction M16475.lD,
which guides the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that there are no factors
in this case that would limit the use of
a categorical exclusion under section
2.B.2 of the Instruction. Therefore, this
rule is categorically excluded, under
figure 2–1, paragraph (34)(a), of the
Instruction, from further environmental
documentation. This rule concerns
inquiries into the previous ownership
and uses of facilities and the real
property on which they are located,
before they are acquired, to determine
the presence or likely presence of oil. It
has no effect on the environment.
A final ‘‘Environmental Analysis
Check List’’ and a final ‘‘Categorical
Exclusion Determination’’ are available
in the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 137
Environmental protection,
Administrative practice and procedure,
Petroleum, Intergovernmental relations,
Reporting and recordkeeping
requirements.
Words of Issuance and Regulatory Text
For the reasons set out in the
preamble, the Coast Guard adds 33 CFR
part 137 to read as follows:
I
PART 137—OIL SPILL LIABILITY:
STANDARDS FOR CONDUCTING ALL
APPROPRIATE INQUIRIES UNDER
THE INNOCENT LAND-OWNER
DEFENSE
Subpart A—Introduction
Sec.
137.1 Purpose and applicability.
137.5 Disclosure obligations.
137.10 How are terms used in this part
defined?
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137.15 References: Where can I get a copy
of the publication mentioned in this
part?
Subpart B—Standards and Practices
137.18 Duties of persons specified in
§ 137.1(a).
137.20 May voluntary industry standards be
used to comply with this regulation?
137.25 Qualifications of the environmental
professional.
137.30 Objectives and performance factors.
137.33 General all appropriate inquiries
requirements.
137.35 Inquiries by an environmental
professional.
137.40 Additional inquiries.
137.45 Interviews with past and present
owners, operators, and occupants.
137.50 Reviews of historical sources of
information.
137.55 Searches for recorded environmental
cleanup liens.
137.60 Reviews of Federal, State, tribal and
local government records.
137.65 Visual inspections of the facility, the
real property on which the facility is
located, and adjoining properties.
137.70 Specialized knowledge or
experience on the part of persons
specified in § 137.1(a).
137.75 The relationship of the purchase
price to the value of the facility and the
real property on which the facility is
located, if oil was not at the facility or
on the real property.
137.80 Commonly known or reasonably
ascertainable information about the
facility and the real property on which
the facility is located.
137.85 The degree of obviousness of the
presence or likely presence of oil at the
facility and the real property on which
the facility is located and the ability to
detect the oil by appropriate
investigation.
Authority: 33 U.S.C. 2703(d)(4);
Department of Homeland Security Delegation
No. 14000.
appropriate inquiries into the nature of
the real property on which the facility
is located before acquiring it. The
purpose of this part is to prescribe
standards and practices for making
those inquiries.
(b) Under 33 U.S.C. 2703(d)(4)(E), this
part does not apply to real property
purchased by a non-governmental entity
or non-commercial entity for residential
use or other similar uses where a
property inspection and a title search
reveal no basis for further investigation.
In those cases, the property inspection
and title search satisfy the requirements
of this part.
(c) This part does not affect the
existing OPA 90 liability protections for
State and local governments that acquire
a property involuntarily in their
functions as sovereigns under 33 U.S.C.
2703(d)(2)(B). Involuntary acquisition of
properties by State and local
governments fall under the provisions of
33 U.S.C. 2703(d)(2)(B), not under the
all-appropriate-inquiries provision of 33
U.S.C. 2703(d)(4) and this part.
§ 137.5
Disclosure obligations.
(a) Under 33 U.S.C. 2703(c)(1),
persons specified in § 137.1(a),
including environmental professionals,
must report the incident as required by
law if they know or have reason to know
of the incident.
(b) This part does not limit or expand
disclosure obligations under any
Federal, State, tribal, or local law. It is
the obligation of each person, including
environmental professionals,
conducting inquiries to determine his or
her respective disclosure obligations
under Federal, State, tribal, and local
law and to comply with them.
§ 137.10 How are terms used in this part
defined?
§ 137.1
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Subpart A—Introduction
(a) The following terms have the same
definitions as in 33 U.S.C. 2701:
damages; discharge; incident; liable or
liability; oil; owner or operator; and
removal costs.
(b) As used in this part—
Abandoned property means a
property that, because of its general
disrepair or lack of activity, a reasonable
person could believe that there is an
intent on the part of the current owners
to surrender their rights to the property.
Adjoining property means real
property the border of which is shared
in part or in whole with that of the
subject property or that would be shared
in part or in whole with that of the
property but for a street, road, or other
public thoroughfare separating the
properties.
Data gap means a lack of, or inability
to, obtain information required by
Purpose and applicability.
(a) In general under the Oil Pollution
Act of 1990 (33 U.S.C. 2701, et seq.), an
owner or operator of a facility (as
defined in § 137.10) that is the source of
a discharge, or a substantial threat of
discharge, of oil into the navigable
waters or adjoining shorelines or the
exclusive economic zone is liable for
damages and removal costs resulting
from the discharge or threat. However,
if that person can demonstrate, among
other criteria not addressed in this part,
that they did not know and had no
reason to know at the time of their
acquisition of the real property on
which the facility is located that oil was
located on, in, or at the facility, the
person may be eligible for the innocent
landowner defense to liability under 33
U.S.C. 2703(d)(4). One element of the
defense is that the person made all
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2151
subpart B of this part despite good faith
efforts by the environmental
professional or persons specified in
§ 137.1(a), as appropriate, to gather the
information under § 137.33.
Environmental professional means an
individual who meets the requirements
of § 137.25.
Facility means any structure, group of
structures, equipment, or device (other
than a vessel) which is used for one or
more of the following purposes:
exploring for, drilling for, producing,
storing, handling, transferring,
processing, or transporting oil. This
term includes any motor vehicle, rolling
stock, or pipeline used for one or more
of these purposes.
Good faith means the absence of any
intention to seek an unfair advantage or
to defraud another party; an honest and
sincere intention to fulfill one’s
obligations in the conduct or transaction
concerned.
Institutional controls means nonengineered instruments, such as
administrative and/or legal controls,
that help to minimize the potential for
human exposure to oil discharge and/or
protect the integrity of a removal action.
Relevant experience means
participation in the performance of allappropriate-inquiries investigations,
environmental site assessments, or other
site investigations that may include
environmental analyses, investigations,
and remediation which involve the
understanding of surface and subsurface
environmental conditions and the
processes used to evaluate these
conditions and for which professional
judgment was used to develop opinions
regarding conditions indicative of the
presence or likely presence of oil at the
facility and the real property on which
the facility is located.
§ 137.15 References: Where can I get a
copy of the publication mentioned in this
part?
Section 137.20 of this part refers to
ASTM E 1527–05, Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process. That document is available
from ASTM International, 100 Barr
Harbor Drive, P.O. Box C700, West
Conshohocken, PA 19428–2959. It is
also available for inspection at the Coast
Guard National Pollution Funds Center,
4200 Wilson Boulevard, Suite 1013,
Arlington, VA 22203–1804.
Subpart B—Standards and Practices
§ 137.18 Duties of persons specified in
§ 137.1(a).
In order to make all appropriate
inquiries, persons seeking to establish
the liability protection under § 137.1(a)
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must conduct the inquiries and
investigations as required in this part
and ensure that the inquiries and
investigations required to be made by
environmental professionals are made.
§ 137.20 May industry standards be used
to comply with this regulation?
The industry standards in ASTM E
1527–05, (Referenced in § 137.15) may
be used to comply with the
requirements set forth in §§ 137.45
through 137.85 of this part. Use of
ASTM E 1527–05 for this purpose is
optional and not mandatory.
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§ 137.25 Qualifications of the
environmental professional.
(a) An environmental professional is
an individual who possesses sufficient
specific education, training, and
experience necessary to exercise
professional judgment to develop
opinions and conclusions regarding
conditions indicative of the presence or
likely presence of oil at a facility and
the real property on which the facility
is located sufficient to meet the
objectives and performance factors in
§ 137.30(a) and (b).
(1) Such a person must—
(i) Hold a current Professional
Engineer’s or Professional Geologist’s
license or registration from a State, tribe,
or U.S. territory (or the Commonwealth
of Puerto Rico) and have the equivalent
of 3 years of full-time relevant
experience;
(ii) Be licensed or certified by the
Federal government, a State, tribe, or
U.S. territory (or the Commonwealth of
Puerto Rico) to perform environmental
inquiries under § 137.35 and have the
equivalent of 3 years of full-time
relevant experience;
(iii) Have a Baccalaureate or higher
degree from an accredited institution of
higher education in a discipline of
engineering or science and the
equivalent of 5 years of full-time
relevant experience; or
(iv) Have the equivalent of 10 years of
full-time relevant experience.
(2) An environmental professional
should remain current in his or her field
through participation in continuing
education or other activities.
(3) The requirements for an
environmental professional in this
section do not preempt State
professional licensing or registration
requirements, such as those for a
professional geologist, engineer, or siteremediation professional. Before
commencing work, a person should
determine the applicability of State
professional licensing or registration
laws to the activities to be undertaken
as part of an inquiry under § 137.35(b).
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(4) A person who does not qualify as
an environmental professional under
this section may assist in the conduct of
all appropriate inquiries according to
this part if the person is under the
supervision or responsible charge of an
environmental professional meeting the
requirements of this section when
conducting the inquiries.
§ 137.30
factors.
Objectives and performance
(a) Objectives. This part is intended to
result in the identification of conditions
indicative of the presence or likely
presence of oil at the facility and the
real property on which the facility is
located. In order to meet the objectives
of this regulation, persons specified in
§ 137.1(a) and the environmental
professional must seek to identify,
through the conduct of the standards
and practices in this subpart, the
following types of information about the
facility and the real property on which
the facility is located:
(1) Current and past uses and
occupancies of the facility and the real
property on which the facility is
located.
(2) Current and past uses of oil.
(3) Waste management and disposal
activities that indicate presence or likely
presence of oil.
(4) Current and past corrective actions
and response activities that indicate
presence or likely presence of oil.
(5) Engineering controls.
(6) Institutional controls, such as
zoning restrictions, building permits,
and easements.
(7) Properties adjoining or located
nearby the facility and the real property
on which the facility is located that
have environmental conditions that
could have resulted in conditions
indicative of the presence or likely
presence of oil at the facility and the
real property on which the facility is
located.
(b) Performance factors. In order to
meet this part and to meet the objectives
stated in paragraph (a) of this section,
the persons specified in § 137.1(a) or the
environmental professional (as
appropriate to the particular standard
and practice) must—
(1) Gather the information that is
required for each standard and practice
listed in this subpart that is publicly
available, is obtainable from its source
within a reasonable time and cost, and
can be reviewed practicably; and
(2) Review and evaluate the
thoroughness and reliability of the
information gathered in complying with
each standard and practice listed in this
subpart taking into account information
gathered in the course of complying
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with the other standards and practices
of this part.
§ 137.33 General all appropriate inquiries
requirements.
(a) All appropriate inquiries must be
conducted within 1 year before the date
of acquisition of the real property on
which the facility is located, as
evidenced by the date of receipt of the
documentation transferring title to, or
possession of, the real property and
must include:
(1) An inquiry by an environmental
professional, as provided in § 137.35.
(2) The collection of information
under § 137.40 by persons specified in
§ 137.1(a).
(b) The following components of the
all appropriate inquiries must be
conducted or updated within 180 days
before the date of acquisition of the real
property on which the facility is
located:
(1) Interviews with past and present
owners, operators, and occupants. See
§ 137.45.
(2) Searches for recorded
environmental cleanup liens. See
§ 137.55.
(3) Reviews of Federal, State, tribal,
and local government records. See
§ 137.60.
(4) Visual inspections of the facility,
the real property on which the facility
is located, and adjoining properties. See
§ 137.65.
(5) The declaration by the
environmental professional. See
§ 137.35(d).
(c) All appropriate inquiries may
include the results of and information
contained in an inquiry previously
conducted by, or on behalf of, persons
specified in § 137.1(a) who are
responsible for the inquiries for the
facility and the real property on which
the facility is located if—
(1) The information was collected
during the conduct of an allappropriate-inquiries investigation
under this part.
(2) The information was collected or
updated within 1 year before the date of
acquisition of the real property on
which the facility is located.
(3) The following components of the
inquiries were conducted or updated
within 180 days before the date of
acquisition of the real property on
which the facility is located:
(i) Interviews with past and present
owners, operators, and occupants. See
§ 137.45.
(ii) Searches for recorded
environmental cleanup liens. See
§ 137.55.
(iii) Reviews of Federal, State, tribal,
and local government records. See
§ 137.60.
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(iv) Visual inspections of the facility,
the real property on which the facility
is located, and the adjoining properties.
See § 137.65.
(v) The declaration by the
environmental professional. See
§ 137.35(d).
(4) Previously collected information is
updated by including relevant changes
in the conditions of the facility and the
real property on which the facility is
located and specialized knowledge, as
outlined in § 137.70, of the persons
conducting the all appropriate inquiries
for the facility and the real property on
which the facility is located, including
persons specified in § 137.1(a) and the
environmental professional.
(d) All appropriate inquiries may
include the results of an environmental
professional’s report under § 137.35(c)
that have been prepared by or for other
persons if—
(1) The reports meet the objectives
and performance factors in § 137.30(a)
and (b); and
(2) The person specified in § 137.1(a)
reviews the information and conducts
the additional inquiries under
§§ 137.70, 137.75, and 137.80 and
updates the inquiries requiring an
update under paragraph (b) of this
section.
(e) To the extent there are data gaps
that affect the ability of persons
specified in § 137.1(a) and
environmental professionals to identify
conditions indicative of the presence or
likely presence of oil, the gaps must be
identified in the report under
§ 137.35(c)(2). In addition, the sources
of information consulted to address data
gaps should be identified and the
significance of the gaps noted. Sampling
and analysis may be conducted to
develop information to address data
gaps.
(f) Any conditions indicative of the
presence or likely presence of oil
identified as part of the all-appropriateinquiries investigation should be noted
in the report.
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§ 137.35 Inquiries by an environmental
professional.
(a) Inquiries by an environmental
professional must be conducted either
by the environmental professional or by
a person under the supervision or
responsible charge of an environmental
professional.
(b) The inquiry of the environmental
professional must include the
requirements in §§ 137.45 (interviews
with past and present owners), 137.50
(reviews of historical sources), 137.60
(reviews of government records), 137.65
(visual inspections), 137.80 (commonly
known or reasonably ascertainable
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information) and 137.85 (degree of
obviousness of the presence or likely
presence of oil). In addition, the inquiry
should take into account information
provided to the environmental
professional by the person specified in
§ 137.1(a) conducting the additional
inquiries under § 137.40.
(c) The results of the inquiry by an
environmental professional must be
documented in a written report that, at
a minimum, includes the following:
(1) An opinion as to whether the
inquiry has identified conditions
indicative of the presence or likely
presence of oil at the facility and the
real property on which the facility is
located.
(2) An identification of data gaps in
the information developed as part of the
inquiry that affect the ability of the
environmental professional to identify
conditions indicative of the presence or
likely presence of oil at the facility and
the real property on which the facility
is located. The report must also indicate
whether the gaps prevented the
environmental professional from
reaching an opinion regarding the
identification of conditions indicative of
the presence or likely presence of oil.
(3) The qualifications of the
environmental professional.
(4) An opinion regarding whether
additional appropriate investigation is
necessary.
(d) The environmental professional
must place the following statements in
the written document identified in
paragraph (c) of this section and sign the
document: ‘‘[I, We] declare that, to the
best of [my, our] professional
knowledge, [I, we] meet the
requirements under 33 CFR 137.25 for
an environmental professional.’’ and ‘‘[I,
We] have the specific qualifications
based on education, training, and
experience to assess the nature, history,
and setting of a facility and the real
property on which it is located. [I, We]
have developed and conducted all
appropriate inquiries according to the
standards and practices in 33 CFR part
137.’’
§ 137.40
Additional inquiries.
(a) Persons specified in § 137.1(a)
must conduct inquiries in addition to
those conducted by the environmental
professional under § 137.35 and may
provide the information associated with
these additional inquiries to the
environmental professional responsible
for conducting the activities listed in
§ 137.35—
(1) As required by § 137.55 and if not
otherwise obtained by the
environmental professional,
environmental cleanup liens against the
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2153
facility and the real property on which
it is located that are filed or recorded
under Federal, State, tribal, or local law.
(2) As required by § 137.70,
specialized knowledge or experience of
the person specified in § 137.1(a).
(3) As required by § 137.75, the
relationship of the purchase price to the
fair market value of the facility and the
real property on which the facility is
located if the oil was not at the facility
and the real property on which it is
located.
(4) As required by § 137.80 and if not
otherwise obtained by the
environmental professional, commonly
known or reasonably ascertainable
information about the facility and the
real property on which it is located.
(b) [Reserved]
§ 137.45 Interviews with past and present
owners, operators, and occupants.
(a) Interviews with owners, operators,
and occupants of the facility and the
real property on which the facility is
located must be conducted for the
purposes of achieving the objectives and
performance factors of § 137.30(a) and
(b).
(b) The inquiry of the environmental
professional must include interviewing
the current owner and occupant of the
facility and the real property on which
the facility is located. If the facility and
the real property on which the facility
is located has multiple occupants, the
inquiry of the environmental
professional must include interviewing
major occupants, as well as those
occupants likely to use, store, treat,
handle or dispose of oil or those who
have likely done so in the past.
(c) The inquiry of the environmental
professional also must include, to the
extent necessary to achieve the
objectives and performance factors in
§ 137.30(a) and (b), interviewing one or
more of the following persons:
(1) Current and past facility and real
property managers with relevant
knowledge of uses and physical
characteristics of the facility and the
real property on which the facility is
located.
(2) Past owners, occupants, or
operators of the facility and the real
property on which the facility is
located.
(3) Employees of current and past
occupants of the facility and the real
property on which the facility is
located.
(d) In the case of inquiries conducted
at abandoned properties where there is
evidence of potential unauthorized uses
or evidence of uncontrolled access, the
environmental professional’s inquiry
must include an interview of at least
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one owner or occupant of a neighboring
property from which it appears possible
that the owner or occupant of the
neighboring property could have
observed use or other presence or likely
presence of oil.
§ 137.50 Reviews of historical sources of
information.
(a) Historical documents and records
must be reviewed for the purposes of
achieving the objectives and
performance factors of § 137.30(a) and
(b). Historical documents and records
may include, but are not limited to,
aerial photographs, fire insurance maps,
building department records, chain of
title documents, and land use records.
(b) Historical documents and records
reviewed must cover a period of time as
far back in the history of the real
property to when the first structure was
built or when it was first used for
residential, agricultural, commercial,
industrial, or governmental purposes.
The environmental professional may
exercise professional judgment in
context of the facts available at the time
of the inquiry as to how far back in time
it is necessary to search historical
records.
§ 137.55 Searches for recorded
environmental cleanup liens.
(a) All appropriate inquiries must
include a search for the existence of
environmental cleanup liens against the
facility and the real property on which
the facility is located that are filed or
recorded under Federal, State, tribal, or
local law.
(b) All information collected by
persons specified in § 137.1(a) rather
than an environmental professional
regarding the existence of
environmental cleanup liens associated
with the facility and the real property
on which the facility is located may be
provided to the environmental
professional or retained by the
applicable party.
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§ 137.60 Reviews of Federal, State, tribal,
and local government records.
(a) Federal, State, tribal, and local
government records or databases of
government records of the facility, the
real property on which the facility is
located, and adjoining properties must
be reviewed for the purposes of
achieving the objectives and
performance factors of § 137.30(a) and
(b).
(b) With regard to the facility and the
property on which the facility is
located, the review of Federal, State,
and tribal government records or
databases of the government records and
local government records and databases
of the records should include—
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(1) Records of reported oil discharges
present, including site investigation
reports for the facility and the real
property on which the facility is
located;
(2) Records of activities, conditions,
or incidents likely to cause or contribute
to discharges or substantial threat of
discharges of oil, including landfill and
other disposal unit location records and
permits, storage tank records and
permits, hazardous waste handler and
generator records and permits, Federal,
tribal and State government listings of
sites identified as priority cleanup sites,
and spill reporting records;
(3) Comprehensive Environmental
Response, Compensation, and Liability
Information System (CERCLIS) records;
(4) Public health records;
(5) Emergency Response Notification
System records;
(6) Registries or publicly available
lists of engineering controls; and
(7) Registries or publicly available
lists of institutional controls, including
environmental land use restrictions,
applicable to the facility and the real
property on which the facility is
located.
(c) With regard to nearby or adjoining
properties, the review of Federal, State,
tribal, and local government records or
databases of government records should
include the identification of the
following:
(1) Properties for which there are
government records of reported
discharges or substantial threat of
discharges of oil. Such records or
databases containing such records and
the associated distances from the facility
and the real property on which the
facility is located for which such
information should be searched include
the following:
(i) Records of National Priorities List
(NPL) sites or tribal- and Stateequivalent sites (one mile).
(ii) Resource Conservation and
Recovery Act (RCRA) properties subject
to corrective action (one mile).
(iii) Records of Federally-registered,
or State-permitted or -registered,
hazardous waste sites identified for
investigation or remediation, such as
sites enrolled in State and tribal
voluntary cleanup programs and tribaland State-listed brownfield sites (onehalf mile).
(iv) Records of leaking underground
storage tanks (one-half mile).
(2) Properties that previously were
identified or regulated by a government
entity due to environmental concerns at
the facility and the real property on
which the facility is located. The
records or databases containing the
records and the associated distances
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Fmt 4700
Sfmt 4700
from the facility and the real property
on which the facility is located for
which the information should be
searched include the following:
(i) Records of delisted NPL sites (onehalf mile).
(ii) Registries or publicly available
lists of engineering controls (one-half
mile).
(iii) Records of former CERCLIS sites
with no further remedial action notices
(one-half mile).
(3) Properties for which there are
records of Federally-permitted, Statepermitted or -registered, or tribalpermitted or -registered waste
management activities. The records or
databases that may contain the records
include the following:
(i) Records of RCRA small quantity
and large quantity generators (adjoining
properties).
(ii) Records of Federally-permitted,
State-permitted or -registered, or tribalpermitted landfills and solid waste
management facilities (one-half mile).
(iii) Records of registered storage
tanks (adjoining property).
(4) A review of additional government
records with regard to sites identified
under paragraphs (c)(1) through (c)(3) of
this section may be necessary in the
judgment of the environmental
professional for the purpose of
achieving the objectives and
performance factors of §§ 137.30(a) and
(b).
(d) The search distance from the real
property boundary for reviewing
government records or databases of
government records listed in paragraph
(c) of this section may be modified
based upon the professional judgment of
the environmental professional. The
rationale for the modifications must be
documented by the environmental
professional. The environmental
professional may consider one or more
of the following factors in determining
an alternate appropriate search
distance—
(1) The nature and extent of a
discharge.
(2) Geologic, hydrogeologic, or
topographic conditions of the property
and surrounding environment.
(3) Land use or development
densities.
(4) The property type.
(5) Existing or past uses of
surrounding properties.
(6) Potential migration pathways (e.g.,
groundwater flow direction, prevalent
wind direction).
(7) Other relevant factors.
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Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 / Rules and Regulations
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§ 137.65 Visual inspections of the facility,
real property on which the facility is
located, and adjoining properties.
(a) For the purpose of achieving the
objectives and performance factors of
§ 137.30(a) and (b), the inquiry of the
environmental professional must
include the following:
(1) A visual on-site inspection of the
facility and the real property on which
the facility is located, and the
improvements at the facility and real
property, including a visual inspection
of the areas where oil may be or may
have been used, stored, treated,
handled, or disposed. Physical
limitations to the visual inspection must
be noted.
(2) A visual inspection of adjoining
properties, from the subject real
property line, public rights-of-way, or
other vantage point (e.g., aerial
photography), including a visual
inspection of areas where oil may be or
may have been stored, treated, handled
or disposed. A visual on-site inspection
is recommended, though not required.
Physical limitations to the inspection of
adjacent properties must be noted.
(b) Except as in paragraph (c) of this
section, a visual on-site inspection of
the facility and the real property on
which the facility is located must be
conducted.
(c) An on-site inspection is not
required if an on-site visual inspection
of the facility and the real property on
which the facility is located cannot be
performed because of physical
limitations, remote and inaccessible
location, or other inability to obtain
access to the facility and the real
property on which the facility is located
after good faith efforts have been taken
to obtain access. The mere refusal of a
voluntary seller to provide access to the
facility and the real property on which
the facility is located is not justification
for not conducting an on-site inspection.
The inquiry of the environmental
professional must include—
(1) Visually inspecting the facility and
the real property on which the facility
is located using another method, such as
aerial imagery for large properties, or
visually inspecting the facility and the
real property on which the facility is
located from the nearest accessible
vantage point, such as the property line
or public road for small properties;
(2) Documenting the efforts
undertaken to obtain access and an
explanation of why such efforts were
unsuccessful; and
(3) Documenting other sources of
information regarding the presence or
likely presence of oil at the facility and
the real property on which the facility
is located that were consulted according
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15:18 Jan 11, 2008
Jkt 214001
to § 137.30(a). The documentation
should include comments, if any, by the
environmental professional on the
significance of the failure to conduct a
visual on-site inspection of the facility
and the real property on which the
facility is located with regard to the
ability to identify conditions indicative
of the presence or likely presence of oil
at the facility and the real property.
§ 137.70 Specialized knowledge or
experience on the part of persons specified
in § 137.1(a).
(a) For the purpose of identifying
conditions indicative of the presence or
likely presence of oil at the facility and
the real property on which the facility
is located, persons specified in
§ 137.1(a) must take into account their
own specialized knowledge of the
facility and the real property on which
the facility is located, the area
surrounding the facility and the real
property on which the facility is
located, and the conditions of adjoining
properties and their experience relevant
to the inquiry.
(b) The results of all appropriate
inquiries under § 137.33 must take into
account the relevant and applicable
specialized knowledge and experience
of the persons specified in § 137.1(a)
responsible for undertaking the inquiry.
§ 137.75 The relationship of the purchase
price to the value of the facility and the real
property on which the facility is located, if
oil was not at the facility or on the real
property.
(a) Persons specified in § 137.1(a)
must consider whether the purchase
price of the facility and the real property
on which the facility is located
reasonably reflects the fair market value
of the facility and real property if oil
was not present or likely present.
(b) If the persons conclude that the
purchase price does not reasonably
reflect the fair market value of that
facility and real property if oil was not
at the facility and the real property, they
must consider whether or not the
differential in purchase price and fair
market value is due to the presence or
likely presence of oil.
§ 137.80 Commonly known or reasonably
ascertainable information about the facility
and the real property on which the facility
is located.
(a) Throughout the inquiries, persons
specified in § 137.1(a) and
environmental professionals conducting
the inquiry must take into account
commonly known or reasonably
ascertainable information within the
local community about the facility and
the real property on which the facility
is located and consider that information
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Fmt 4700
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2155
when seeking to identify conditions
indicative of the presence or likely
presence of oil at the facility and the
real property.
(b) Commonly known information
may include information obtained by
the person specified in § 137.1(a) or by
the environmental professional about
the presence or likely presence of oil at
the facility and the real property on
which the facility is located that is
incidental to the information obtained
during the inquiry of the environmental
professional.
(c) To the extent necessary to achieve
the objectives and performance factors
of § 137.30(a) and (b), the person
specified in § 137.1(a) and the
environmental professional must gather
information from varied sources whose
input either individually or taken
together may provide commonly known
or reasonably ascertainable information
about the facility and the real property
on which the facility is located; the
environmental professional may refer to
one or more of the following sources of
information:
(1) Current owners or occupants of
neighboring properties or properties
adjacent to the facility and the real
property on which the facility is
located.
(2) Local and state government
officials who may have knowledge of, or
information related to, the facility and
the real property on which the facility
is located.
(3) Others with knowledge of the
facility and the real property on which
the facility is located.
(4) Other sources of information, such
as newspapers, Web sites, community
organizations, local libraries, and
historical societies.
§ 137.85 The degree of obviousness of the
presence or likely presence of oil at the
facility and the real property on which the
facility is located and the ability to detect
the oil by appropriate investigation.
(a) Persons specified in § 137.1(a) and
environmental professionals conducting
an inquiry of a facility and the real
property on which it is located on their
behalf must take into account the
information collected under §§ 137.45
through 137.80 in considering the
degree of obviousness of the presence or
likely presence of oil at the facility and
the real property on which the facility
is located.
(b) Persons specified in § 137.1(a) and
environmental professionals conducting
an inquiry of a facility and the property
on which the facility is located on their
behalf must take into account the
information collected under §§ 137.45
through 137.80 in considering the
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Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 / Rules and Regulations
ability to detect the presence or likely
presence of oil by appropriate
investigation. The report of the
environmental professional should
include an opinion under § 137.35(c)(4)
regarding whether additional
appropriate investigation is necessary.
I
Dated: January 7, 2008.
William Grawe,
Acting Director, National Pollution Funds
Center, United States Coast Guard.
[FR Doc. E8–329 Filed 1–11–08; 8:45 am]
*
BILLING CODE 4910–15–P
781 Payment Required
[Add new 781.1 using the current text
of 781 as follows:]
39 CFR Part 20
Undeliverable Items
Postal Service.
Final rule.
AGENCY:
The Postal ServiceTM has
implemented new standards for
returned undeliverable-as-addressed
items that were posted abroad with a
United States return address. When this
occurs, the Postal Service provides the
return service but currently receives no
payment for the services rendered. This
final rule implements collection of a fee
for returned items.
DATES: Effective Date: January 14, 2008.
FOR FURTHER INFORMATION CONTACT:
Obataiye B. Akinwole, 703–292–5260,
Bruce Marsh, 703–292–3570.
SUPPLEMENTARY INFORMATION: Article RL
147 of the Letter Post Regulations of the
Universal Postal Union (UPU),
‘‘Undeliverable Items,’’ allows all posts
to collect handling charges for
undeliverable-as-addressed pieces
posted abroad by customers residing in
their territories. In order to recover costs
associated with handling these pieces,
the Postal Service will collect the
applicable First-Class Mail International
postage for each returned item.
SUMMARY:
List of Subjects in 39 CFR Part 20
Foreign relations, International postal
services.
Effective the date of this rulemaking
the USPS formally adopts the UPU
provisions into the Mailing Standards of
the United States Postal Service,
International Mail Manual (IMM),
incorporated by reference in the Code of
Federal Regulations. See 39 CFR 20.1.
rmajette on PROD1PC64 with RULES
I
PART 20—[AMENDED]
1. The authority citation for 39 CFR
part 20 continues to read as follows:
I
Authority: 5 U.S.C. 552(a); 39 U.S.C. 401,
404, 407, 408.
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15:18 Jan 11, 2008
Jkt 214001
7
Treatment of Inbound Mail
*
*
*
*
780 Items Mailed Abroad by or on
Behalf of Senders in the United States
[Revise the heading of 781 as follows:]
POSTAL SERVICE
ACTION:
2. Revise the Mailing Standards of the
United States Postal Service,
International Mail Manual (IMM) as
follows:
*
*
*
*
*
781.1 Postage Payment Required
Payment of U.S. Postage is required to
secure delivery of mail when the
mailing is by or on behalf of a person
or firm that is a resident of the United
States and the foreign postage rate
applied to such items is lower than the
comparable U.S. domestic rate.
[Add new 781.2 as follows:]
781.2
Handling Charges
Undeliverable-as-addressed mail
returned to the sender for which
outbound postage was not paid to the
USPS is subject to the payment of
handling charges. On delivery to the
sender, the sender may be charged the
First-Class Mail International rate for
the weight and shape of the returned
piece.
*
*
*
*
*
Neva R. Watson,
Attorney, Legislative.
[FR Doc. E8–392 Filed 1–11–08; 8:45 am]
BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–1010; FRL–8515–6]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Revised Motor Vehicle
Emission Budgets for the Charleston
8-Hour Ozone Maintenance Area
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
SUMMARY: EPA is taking direct final
action to approve a State
Implementation Plan (SIP) revision
submitted by the State of West Virginia.
The revision amends the 8-hour ozone
maintenance plan for the Charleston
area. This revision amends the
maintenance plans’ 2009 and 2018
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motor vehicle emissions budgets
(MVEBs) by reallocating a portion of the
plans’ safety margins which results in
an increase in the MVEBs. The revised
plan continues to demonstrate
maintenance of the 8-hour national
ambient air quality standard (NAAQS)
for ozone. EPA is approving this SIP
revision to the West Virginia
maintenance plan for Charleston in
accordance with the requirements of the
Clean Air Act (CAA).
DATES: This rule is effective on March
14, 2008 without further notice, unless
EPA receives adverse written comment
by February 13, 2008. If EPA receives
such comments, it will publish a timely
withdrawal of the direct final rule in the
Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2007–1010 by one of the
following methods:
A. www.regulations.gov. Follow the
on-line instructions for submitting
comments.
B. E-mail: febbo.carol@epa.gov.
C. Mail: EPA–R03–OAR–2007–1010,
Carol Febbo, Chief, Energy, Radiation
and Indoor Environment Branch,
Mailcode 3AP23, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103.
D. Hand Delivery: At the previouslylisted EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2007–
1010. 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.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov Web
site 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 e-mail
comment directly to EPA without going
through www.regulations.gov, your
e-mail address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
E:\FR\FM\14JAR1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Rules and Regulations]
[Pages 2146-2156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-329]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 137
[Docket No. USCG-2006-25708]
RIN 1625-AB09
Landowner Defenses to Liability Under the Oil Pollution Act of
1990: Standards and Practices for Conducting All Appropriate Inquiries
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing standards and practices
concerning the ``all appropriate inquiries'' element of a defense to
liability of an owner or operator of a facility that is the source of a
discharge or substantial threat of discharge of oil into the navigable
waters or adjoining shorelines or the exclusive economic zone. To be
entitled to the defense, those persons must show, among other elements
not addressed in this rulemaking, that, before acquiring the real
property on which the facility is located, they had made all
appropriate inquiries into its previous ownership and uses to determine
the presence or likely presence of oil. This rule is consistent with a
final rule on this subject published by the Environmental Protection
Agency.
DATES: This final rule is effective February 13, 2008.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2006-25708 and are available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Benjamin White, National Pollution Funds Center, Coast Guard,
telephone 202-493-6863. If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory History
On June 12, 2007, we published a notice of proposed rulemaking
(NPRM) entitled ``Landowner Defenses to Liability Under the Oil
Pollution Act of 1990: Standards and Practices for Conducting All
Appropriate Inquiries'' in the Federal Register (72 FR 32232). We
received no comments on the proposed rule. No public meeting was
requested and none was held. The Coast Guard is, therefore, adopting
the NPRM as published and without change as a final rule.
Background and Purpose
In general, under the Oil Pollution Act of 1990 (33 U.S.C. 2701, et
seq.) (OPA 90), an owner or operator of a facility that is the source
of a discharge, or a substantial threat of discharge, of oil into the
navigable waters or adjoining shorelines or the exclusive economic zone
is liable for damages and removal costs resulting from the discharge or
threat. See 33 U.S.C. 2702(a). Under OPA 90, that person is known as a
``responsible party.'' See 33 U.S.C. 2701(32).
The Coast Guard and Maritime Transportation Act of 2004 (Pub. L.
108-293) (the 2004 Act) amended OPA 90, at 33 U.S.C. 2703(d)(4), by
creating an ``innocent landowner'' defense to liability for those
persons who could demonstrate, among other requirements, that before
acquiring the real property on which the facility is located, they did
not know, and had no reason to know that oil that is the subject of the
discharge or substantial threat of discharge was located on, in, or at
the facility. See 33 U.S.C. 2703(d)(2)(A). This is done by establishing
that, before it acquired the real property on which the facility is
located, it carried out ``all appropriate inquiries'' into its previous
ownership and uses according to ``generally accepted good commercial
and customary standards and practices.'' See 33 U.S.C.
2703(d)(4)(A)(i). The Coast Guard is required to establish, by
regulation, the standards and practices for carrying out all
appropriate inquiries (33 U.S.C. 2703(d)(4)(B)), which is the subject
of this rulemaking.
This rulemaking applies to persons planning to acquire real
property on which a facility, as defined under 33 U.S.C. 2701(9), is
located who choose to take steps necessary to protect themselves from
liability should unknown oil that is the subject of a discharge or
substantial threat of discharge be found at the facility after they
acquire it. We call these persons ``landowners'' or ``owners'' in this
preamble. Should prospective landowners opt for this protection, they
may find that they have already complied with this rule if they have
complied with ASTM International (ASTM) E 1527-05, ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process.'' The industry standard ASTM E 1527-05, is
consistent with this rule and is compliant with the statutory criteria
for all appropriate inquiries. Persons conducting all appropriate
inquiries may use the procedures included in the ASTM E 1527-05
standard to comply with this rule. For more information on the ASTM
standard, see the ``ASTM Standard E 1527-05'' section in this preamble.
Note that this rule addresses only one of several elements that
must be complied with in order to avail oneself of this protection. The
element addressed in this rule is called the ``all-appropriate-
inquiries'' element found in 33 U.S.C. 2703(d)(4).
Scope of the Rule
Congress included in the 2004 Act a list of criteria that the Coast
Guard must address in their regulations for establishing standards and
practices for conducting all appropriate inquiries. The criteria may be
found in 33 U.S.C. 2703(d)(4)(C). This rulemaking is limited only to
providing those standards and practices relative to the ``all
appropriate inquiries'' element.
[[Page 2147]]
This rulemaking does not address the other requirements in 33 U.S.C.
2703 which also must be met to qualify for the innocent-landowner
defense.
The rule would not apply to real property purchased by a non-
governmental entity or non-commercial entity for residential use or
other similar uses where an inspection and a title search of the
facility and the real property on which the facility is located reveal
no basis for further investigation. In those cases, 33 U.S.C.
2703(d)(4)(E) states that the inspection and title search satisfy the
requirements for all appropriate inquiries.
Also, the rule would not affect the existing OPA 90 liability
protections for State and local governments that acquire a facility
involuntarily in their functions as sovereigns under 33 U.S.C.
2701(26)(B)(i) and 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of
facilities by State and local governments do not fall under the all-
appropriate-inquiries provision of 33 U.S.C. 2703(d)(4).
Consultation With Other Agencies
Under 33 U.S.C. 2703(d)(4)(B), we are required to consult with the
Environmental Protection Agency (EPA) to develop regulations
establishing standards and practices for conducting ``all appropriate
inquiries.'' On November 1, 2005, EPA published a final rule in the
Federal Register (70 FR 66070) establishing standards and practices for
conducting all appropriate inquiries as required by sections
101(35)(B)(ii) and (iii) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) (42 U.S.C. 9601, et seq.) found
at 42 U.S.C. 9601(35)(B)(ii) and (iii). CERCLA's liability provision
applies to releases or threatened releases of ``hazardous substances'',
which is defined to exclude most forms of oil. These regulations are
located in 40 CFR part 312. EPA used a negotiated rulemaking process to
develop their standards and practices for conducting all appropriate
inquiries under CERCLA. EPA's Negotiated Rulemaking Committee included
interested parties from environmental interest groups; the
environmental justice community; federal, state, tribal, and local
governments; real estate developers, bankers and lenders; and,
environmental professionals.
The all-appropriate-inquiries provisions of OPA 90 and CERCLA are
similar in many respects, but not identical. The CERCLA provision has a
broader scope than the OPA provision. It addresses certain liability
defense provisions that are unique to CERCLA, involving persons who may
not be affected by this rule, such as contiguous property owners and
bona fide prospective purchasers. While differences between OPA 90 and
CERCLA have required certain differences between the Coast Guard's
final rule and EPA's final rule, we have coordinated with EPA to ensure
that the two rules have been rendered as consistent as possible within
statutory constraints. Maintaining consistency between the two rules
helps standardize practices within the Federal Government.
ASTM Standard E 1527-05
ASTM International (ASTM) E 1527-05, ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process,'' is the current voluntary industry standard that defines good
commercial and customary practice in the United States for conducting
an environmental site assessment of a parcel of commercial real estate
with respect to oil under OPA 90 and hazardous substances under CERCLA.
The 2004 Act, at 33 U.S.C. 2703 (d)(4)(D)(ii), refers to ASTM E 1527-
97, which is no longer available from ASTM and has been replaced by
ASTM E 1527-05. Both the EPA and the Coast Guard agree that the new
ASTM E 1527-05 is the active industry standard and is consistent with
Congressional intent. Persons conducting all appropriate inquiries are
permitted to use the procedures included in the ASTM E 1527-05 standard
to comply with this rule, but use of the ASTM is not mandatory.
Regulatory Evaluation
Executive Order 12866
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
A final Regulatory Evaluation follows:
Compliance with this rule is required only for those persons
engaging in a commercial real estate transaction who choose to take
steps necessary to protect themselves from liability should unknown oil
that is the subject of a discharge or substantial threat of discharge
be found at the facility after they acquire it.
The following analysis of the economic impacts associated with this
rule relies heavily upon the data collected and the assumptions made in
the Environmental Impact Analysis of EPA's final rule, ``Economic
Impact Analysis for the Final All Appropriate Inquiries Regulation,''
Docket ID No. SFUND-2004-0001 found at https://www.regulations.gov/
fdmspublic/component/main or at EPA Docket Center, EPA West Building,
Room B102, 1301 Constitution Avenue, NW., Washington, DC. EPA surveyed
all publicly available literature on environmental assessments of sites
to determine what standard industry was customarily using. These
assessments correspond to the all appropriate inquiries provision being
addressed in this rulemaking and are commonly known as Phase I
environmental site assessments (Phase I ESAs). EPA determined that the
2000 edition of ASTM E 1527 (i.e., ASTM E 1527-00) would be their
regulatory baseline. This baseline represented the ``no action''
scenario to which all regulatory alternatives were compared and their
economic impacts were measured. ASTM E 1527-00 would have been applied
by industry absent EPA's regulation, because this voluntary industry
standard represented ``generally accepted good commercial and customary
practices.'' This assumption was confirmed by the members of EPA's
Negotiated Rulemaking Committee (See the ``Consultation with Other
Agencies'' section of this preamble.). To further validate their
assumption, EPA received no public comments on this aspect of its
Economic Impact Analysis. In addition, ASTM International states that
ASTM E 1527-97 (the edition referred to in the 2004 Act) is no longer
available because, when a new version of a standard is released,
previous versions of the standard are no longer the active industry
standard. The Coast Guard, after independently contacting ASTM
International, concurs that the ASTM E 1527-00 standard more accurately
reflects the current market conditions than the E 1527-97 standard
referenced in OPA 90 as the acceptable interim standard (33 U.S.C.
2703(d)(4)(D)(ii)). The Coast Guard therefore uses the ASTM E 1527-00
standard as its regulatory baseline for its analysis of the economic
impacts associated with this rule.
Historically, Phase I ESAs have been used towards providing
liability protection to individuals under CERCLA. A recent survey
conducted by Environmental Data Resources, Inc. (EDR) indicates that
approximately 55 percent of all Phase I ESAs are driven exclusively by
a need for the landowner
[[Page 2148]]
to qualify for protection from CERCLA liability. The remaining 45
percent are driven by a desire to assess other business environmental
risk concerns (i.e., asbestos, lead-based paint, oil, etc.).
As previously discussed in the ``Consultation with Other Agencies''
section of this preamble, this rule is consistent with EPA's final
rule. The scope of EPA's rulemaking however is much larger than this
rule. As such, the economic impacts of this rule are a subset of the
impacts estimated by EPA's rulemaking. This reduction in economic
impact results primarily from the lower number of Phase I ESAs expected
to be conducted annually under this rule compared to EPA's final rule.
As was the case with EPA's rulemaking, this rule is expected to
result in the following economic impacts:
(1) A reduced burden for the conduct of interviews in those cases
where the facility and the real property on which the facility is
located is abandoned. The new requirement requires only that
neighboring property owners and occupants be interviewed and not the
current owners and occupants of the abandoned property. This burden
would range from no change to a decrease of 0.5 hour per Phase I ESA
depending on the type and size of the facility and the real property on
which the facility is located.
(2) An increased burden in those cases where past owners or
occupants of the facility and the real property on which the facility
is located need to be interviewed. This would involve the additional
effort required to locate and interview past owners and occupants. This
increased burden would range from 1 hour to 2 hours per Phase I ESA
depending on the type and size of the facility and the real property on
which the facility is located.
(3) An increased burden associated with documenting recorded
environmental cleanup liens. This increased burden would involve
additional time spent in preparing the Phase I ESA report. This
increased burden would range from an additional 0.5 hour to 1 hour per
Phase I ESA depending on the size and type of the facility and the real
property on which the facility is located.
(4) An increased burden for documenting the reasons for the price
and fair market value of a facility and the real property on which the
facility is located in those cases where the purchase price paid is
significantly below its fair market value. This increased burden would
involve interviews with local government officials and increased time
spent in preparing the Phase I ESA report. This increased burden would
reflect an additional 0.5 hour per Phase I ESA for all sizes and types
of facilities and the real properties on which the facilities are
located.
(5) An increased burden for recording information about the degree
of obviousness of the presence or likely presence of oil at a facility
and the real property on which the facility is located. This increased
burden would involve additional time spent in preparing the Phase I
Environmental report. This increased burden would range from 0.5 hour
to 1 hour per Phase I ESA depending on the type and size of the
facility and the real property on which the facility is located.
Using a weighted labor rate of $51.20/hour applied to the
activities (as outlined above) required as a result of their regulation
(as they vary from those required in their regulatory baseline), EPA
determined that there would be an incremental cost ranging from $52 to
$58 per Phase I ESA (the low end estimate assumes that 15 percent of
properties are abandoned, while the high end estimate assumes that 28
percent of properties are abandoned). Our analysis simplifies this
range as an average incremental cost of $55 per Phase I ESA.
A. Analysis Calculations and Results
Using data from EPA's final rule and extrapolated for the period
from 2007 to 2016, there would be an average of 332,038 Phase I ESAs
conducted annually. As previously mentioned, the incremental cost of
conducting a Phase I ESA to comply with EPA's rulemaking above and
beyond what was required under ASTM E 1527-00 as calculated by EPA's
rulemaking would be approximately $55 per ESA.
B. Estimated Annual Number of OPA 90-Related Phase I ESAs
This analysis is severely limited by the lack of data available
which would allow the number of Phase I ESAs conducted applicable to
this rule to be segregated from the total population of Phase I ESAs
conducted.
In order to put an upward bound on the costs associated with this
rule, this analysis first describes the absolute upper bound scenario
(i.e., that all commercial real estate transactions not exclusively
conducted for CERCLA liability protection requiring a Phase I ESA would
be impacted by this rule). Next the Coast Guard developed a more likely
scenario that takes into account that Phase I ESAs for certain
commercial real estate transactions are outside the scope of this rule.
We acknowledge that, of all of the commercial real estate transactions
that occur annually, a likely small percentage would involve--
1. A facility and the real property on which the facility is
located where a discharge or substantial threat of discharge of oil may
impact the navigable waters or exclusive economic zone of the United
States; and
2. A Phase I ESA that was conducted for establishment of the
innocent landowner liability protection provision under OPA 90 and not
to assess environmental risk concerns not related to oil (e.g., lead-
based paint contamination, asbestos, CERCLA hazardous substances,
etc.).
C. Upper Bound Cost Scenario
The estimated incremental cost of this scenario, where all future
Phase I ESAs not conducted specifically for CERCLA liability protection
(i.e., 45 percent as per the results of EDR's survey mentioned above)
are impacted by this rule, would be approximately $8.2 million per
year.
Cost calculation 1--Estimated Annual Number of Coast Guard related
Phase I ESAs
332,038 Phase I ESAs x 0.45 = 149,417 Phase I ESAs
Estimated Annual Cost of Coast Guard related Phase I ESAs
149,417 Phase I ESAs x $55/ESA = $8,217,935 per year.
D. Most Likely Cost Scenario
To more accurately reflect the scope of this rule, certain
commercial real estate transactions involving a Phase I ESA from EPA's
analysis would have to be removed from this analysis. Those include
transactions where a discharge or substantial threat of discharge of
oil from a facility and the real property on which the facility is
located would not have the possibility of impacting the navigable
waters or exclusive economic zone of the United States and transactions
which are conducted for substances other than oil. Absent the data to
make more than an approximation, we assumed that five percent of the
total number of Phase I ESAs may realistically reflect the number of
Phase I ESAs within the scope of this rule. Under this assumption, the
estimated cost associated with this rule would be significantly
reduced. The estimated incremental cost under this scenario is
approximately $913,110 per year.
Cost Calculation 2--Estimated Annual Number of Coast Guard related
Phase I ESAs.
[[Page 2149]]
332,038 Phase I ESAs x 0.05 = 16,602 Phase I ESAs.
Estimated Annual Cost of Coast Guard related Phase I ESAs:
16,602 Phase I ESAs x $55/ESA = $913,110 per year.
ASTM International has since updated their ASTM E 1527 standard.
Their new standard is ASTM E 1527-05. Both EPA and Coast Guard
recognize that this new standard is consistent with their rulemakings
on the subject. See the Federal Register (70 FR 66081). Because the new
standard is consistent with the EPA final rule, which went into effect
on November 1, 2006, and provides documentation for both hazardous
substances and oil, it is likely that all prudent prospective
commercial landowners will be using the more rigorous ASTM standard for
their real estate transactions well before our rule becomes effective.
Thus, the possible economic impact attributed to this rule might be
reduced to a negligible value. The Coast Guard further notes that there
have been no instances to date where a responsible party has attempted
to use the interim innocent-landowner defense to liability provision
under OPA 90.
EPA qualitatively assessed the benefits for their final rule. Of
these benefits, only one is applicable to our rule due to our much
smaller regulatory scope, namely the increased level of certainty with
regard to OPA 90 liability provided to prospective owners of facilities
and the real properties on which they are located with potential oil
discharges. The Coast Guard, as was the case with EPA's analysis, is
not able to quantify, with any significant level of confidence, the
exact proportion of benefits associated with the rule. For these
reasons, the costs and benefits can not be directly compared. However,
because complying with this rule is required only for those persons who
choose to take steps necessary to protect themselves from liability
should unknown oil that is the subject of a discharge or substantial
threat of discharge be found at the facility after they acquire it, it
can be assumed that persons would only do so if the potential benefits
to them associated with this protection from liability outweigh their
costs of compliance.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
As previously stated in the regulatory evaluation section above,
compliance with this rule is only required for those entities,
regardless of their operations, involved in a real estate transaction
who choose to take steps necessary to protect themselves from liability
should unknown oil that is the subject of a discharge or substantial
threat of discharge be found at the facility after they acquire it.
Therefore, it assumed that entities across all industries, as defined
by the North American Industry Classification System (NAICS), could
potentially be affected.
The Regulatory Flexibility Act and the Small Business Regulatory
Enforcement Fairness Act of 1996 require Federal agencies to measure
the regulatory impacts of the rule to determine whether there will be a
significant economic impact on a substantial number of small entities.
Entities, however, may operate at multiple physical locations. For
example, most family-owned restaurants operate at a single location,
while chain restaurants have multiple locations. Thus, the annual
number of transactions per entity, and therefore the demand for Phase I
ESAs, is a function of the number of establishments an entity owns.
According to 2001 U.S. Census data, the distribution of
establishments by entity size of the regulated community is as follows:
Less than 100 employees: 81%
100 to 499 employees: 5%
500 to 1,499 employees: 2%
1,500 employees or more: 12%
According to EPA's Office of Policy, Economics, and Innovations and
EPA's National Center for Environmental Economics, it is a common
practice when a proposed regulation has the potential of affecting all
industries to consider all entities with less than 500 employees as
small. According to 2001 U.S. Census data, when small entities are
defined as entities with less than 500 employees, small entities own 86
percent of all establishments. Using EPA's assumption that small
entities are equally likely to engage in commercial real estate
transactions as large ones, we estimate that 86 percent of all
commercial real estate transactions completed annually involve small
entities. Applying this 86 percent to the ``Most Likely Cost Scenario''
and the ``Upper Bound Cost Scenario'' (See ``Regulatory Evaluation'' in
this preamble.) provides a range in the number of potential
transactions occurring annually of between 14,278 and 128,499.
Based on 2001 Census Bureau data, the average annual revenue per
employee for an entity is approximately $24,000. Therefore, even for a
small entity receiving the minimum average annual revenue of $24,000
that makes one transaction a year (a very conservative assumption), the
annual cost impact of $55 would represent only 0.23 percent of annual
revenues.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule will not have a significant economic impact on a
substantial number of small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so they could better evaluate its
effects on them and participate in the rulemaking. The Coast Guard
received no requests for assistance from small entities concerning this
rulemaking and provided none. Small businesses may send comments on the
actions of Federal employees who enforce, or otherwise determine
compliance with, Federal regulations to the Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of the Coast
Guard, call 1-888-REG-FAIR (1-888-734-3247).
Collection of Information
This rule calls for a new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Title: Landowner Defenses to Liability under the Oil Pollution Act
of 1990: Standards and Practices for Conducting All Appropriate
Inquiries.
Summary of the Collection of Information: For landowners choosing
to avail themselves of the innocent-landowner defense, they or their
environmental professionals must conduct all the appropriate inquiries
specified in the rule. Depending upon the particular case, this may
involve interviews, research, and reports.
Need for Information: This rule is needed to assist prospective
landowners in establishing the innocent-landowner defense.
Proposed Use of Information: The information could be used by
persons if
[[Page 2150]]
their liability under OPA 90 for the discharge or substantial threat of
discharge of oil were challenged in a court.
Description of the Respondents: The respondents include anyone
engaging in a commercial real estate transaction that may desire to
assert an innocent landowner defense to liability under OPA 90.
Number of Respondents: We estimate that there would be 16,602
respondents. This is based on an estimate made in the ``Regulatory
Evaluation'' section of this preamble.
Frequency of Response: 1 hour per response.
Burden of Response: $67 per response.
Estimate of Total Annual Burden: 16,602 respondents x 1 hour per
response x $67 per response = $1,112,334
As required by 44 U.S.C. 3507(d), we submitted a copy of this rule
to the Office of Management and Budget (OMB) for its review of the
collection of information. OMB has approved the collection effective
February 13, 2008. The collection will be added to 33 CFR part 137. The
corresponding approval number is OMB Control Number 1625-0111, which
expires on February 13, 2011.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule would not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule uses the following voluntary consensus standard: ASTM E
1527-05, ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process.'' The section that references
this standard and the location where this standard is available is
listed in Sec. 137.15. Persons conducting all appropriate inquiries
may use the procedures included in the ASTM E 1527-05 standard to
comply with this rule.
Environment
We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(a), of the Instruction, from further
environmental documentation. This rule concerns inquiries into the
previous ownership and uses of facilities and the real property on
which they are located, before they are acquired, to determine the
presence or likely presence of oil. It has no effect on the
environment.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 137
Environmental protection, Administrative practice and procedure,
Petroleum, Intergovernmental relations, Reporting and recordkeeping
requirements.
Words of Issuance and Regulatory Text
0
For the reasons set out in the preamble, the Coast Guard adds 33 CFR
part 137 to read as follows:
PART 137--OIL SPILL LIABILITY: STANDARDS FOR CONDUCTING ALL
APPROPRIATE INQUIRIES UNDER THE INNOCENT LAND-OWNER DEFENSE
Subpart A--Introduction
Sec.
137.1 Purpose and applicability.
137.5 Disclosure obligations.
137.10 How are terms used in this part defined?
[[Page 2151]]
137.15 References: Where can I get a copy of the publication
mentioned in this part?
Subpart B--Standards and Practices
137.18 Duties of persons specified in Sec. 137.1(a).
137.20 May voluntary industry standards be used to comply with this
regulation?
137.25 Qualifications of the environmental professional.
137.30 Objectives and performance factors.
137.33 General all appropriate inquiries requirements.
137.35 Inquiries by an environmental professional.
137.40 Additional inquiries.
137.45 Interviews with past and present owners, operators, and
occupants.
137.50 Reviews of historical sources of information.
137.55 Searches for recorded environmental cleanup liens.
137.60 Reviews of Federal, State, tribal and local government
records.
137.65 Visual inspections of the facility, the real property on
which the facility is located, and adjoining properties.
137.70 Specialized knowledge or experience on the part of persons
specified in Sec. 137.1(a).
137.75 The relationship of the purchase price to the value of the
facility and the real property on which the facility is located, if
oil was not at the facility or on the real property.
137.80 Commonly known or reasonably ascertainable information about
the facility and the real property on which the facility is located.
137.85 The degree of obviousness of the presence or likely presence
of oil at the facility and the real property on which the facility
is located and the ability to detect the oil by appropriate
investigation.
Authority: 33 U.S.C. 2703(d)(4); Department of Homeland Security
Delegation No. 14000.
Subpart A--Introduction
Sec. 137.1 Purpose and applicability.
(a) In general under the Oil Pollution Act of 1990 (33 U.S.C. 2701,
et seq.), an owner or operator of a facility (as defined in Sec.
137.10) that is the source of a discharge, or a substantial threat of
discharge, of oil into the navigable waters or adjoining shorelines or
the exclusive economic zone is liable for damages and removal costs
resulting from the discharge or threat. However, if that person can
demonstrate, among other criteria not addressed in this part, that they
did not know and had no reason to know at the time of their acquisition
of the real property on which the facility is located that oil was
located on, in, or at the facility, the person may be eligible for the
innocent landowner defense to liability under 33 U.S.C. 2703(d)(4). One
element of the defense is that the person made all appropriate
inquiries into the nature of the real property on which the facility is
located before acquiring it. The purpose of this part is to prescribe
standards and practices for making those inquiries.
(b) Under 33 U.S.C. 2703(d)(4)(E), this part does not apply to real
property purchased by a non-governmental entity or non-commercial
entity for residential use or other similar uses where a property
inspection and a title search reveal no basis for further
investigation. In those cases, the property inspection and title search
satisfy the requirements of this part.
(c) This part does not affect the existing OPA 90 liability
protections for State and local governments that acquire a property
involuntarily in their functions as sovereigns under 33 U.S.C.
2703(d)(2)(B). Involuntary acquisition of properties by State and local
governments fall under the provisions of 33 U.S.C. 2703(d)(2)(B), not
under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4)
and this part.
Sec. 137.5 Disclosure obligations.
(a) Under 33 U.S.C. 2703(c)(1), persons specified in Sec.
137.1(a), including environmental professionals, must report the
incident as required by law if they know or have reason to know of the
incident.
(b) This part does not limit or expand disclosure obligations under
any Federal, State, tribal, or local law. It is the obligation of each
person, including environmental professionals, conducting inquiries to
determine his or her respective disclosure obligations under Federal,
State, tribal, and local law and to comply with them.
Sec. 137.10 How are terms used in this part defined?
(a) The following terms have the same definitions as in 33 U.S.C.
2701: damages; discharge; incident; liable or liability; oil; owner or
operator; and removal costs.
(b) As used in this part--
Abandoned property means a property that, because of its general
disrepair or lack of activity, a reasonable person could believe that
there is an intent on the part of the current owners to surrender their
rights to the property.
Adjoining property means real property the border of which is
shared in part or in whole with that of the subject property or that
would be shared in part or in whole with that of the property but for a
street, road, or other public thoroughfare separating the properties.
Data gap means a lack of, or inability to, obtain information
required by subpart B of this part despite good faith efforts by the
environmental professional or persons specified in Sec. 137.1(a), as
appropriate, to gather the information under Sec. 137.33.
Environmental professional means an individual who meets the
requirements of Sec. 137.25.
Facility means any structure, group of structures, equipment, or
device (other than a vessel) which is used for one or more of the
following purposes: exploring for, drilling for, producing, storing,
handling, transferring, processing, or transporting oil. This term
includes any motor vehicle, rolling stock, or pipeline used for one or
more of these purposes.
Good faith means the absence of any intention to seek an unfair
advantage or to defraud another party; an honest and sincere intention
to fulfill one's obligations in the conduct or transaction concerned.
Institutional controls means non-engineered instruments, such as
administrative and/or legal controls, that help to minimize the
potential for human exposure to oil discharge and/or protect the
integrity of a removal action.
Relevant experience means participation in the performance of all-
appropriate-inquiries investigations, environmental site assessments,
or other site investigations that may include environmental analyses,
investigations, and remediation which involve the understanding of
surface and subsurface environmental conditions and the processes used
to evaluate these conditions and for which professional judgment was
used to develop opinions regarding conditions indicative of the
presence or likely presence of oil at the facility and the real
property on which the facility is located.
Sec. 137.15 References: Where can I get a copy of the publication
mentioned in this part?
Section 137.20 of this part refers to ASTM E 1527-05, Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process. That document is available from ASTM International,
100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.
It is also available for inspection at the Coast Guard National
Pollution Funds Center, 4200 Wilson Boulevard, Suite 1013, Arlington,
VA 22203-1804.
Subpart B--Standards and Practices
Sec. 137.18 Duties of persons specified in Sec. 137.1(a).
In order to make all appropriate inquiries, persons seeking to
establish the liability protection under Sec. 137.1(a)
[[Page 2152]]
must conduct the inquiries and investigations as required in this part
and ensure that the inquiries and investigations required to be made by
environmental professionals are made.
Sec. 137.20 May industry standards be used to comply with this
regulation?
The industry standards in ASTM E 1527-05, (Referenced in Sec.
137.15) may be used to comply with the requirements set forth in
Sec. Sec. 137.45 through 137.85 of this part. Use of ASTM E 1527-05
for this purpose is optional and not mandatory.
Sec. 137.25 Qualifications of the environmental professional.
(a) An environmental professional is an individual who possesses
sufficient specific education, training, and experience necessary to
exercise professional judgment to develop opinions and conclusions
regarding conditions indicative of the presence or likely presence of
oil at a facility and the real property on which the facility is
located sufficient to meet the objectives and performance factors in
Sec. 137.30(a) and (b).
(1) Such a person must--
(i) Hold a current Professional Engineer's or Professional
Geologist's license or registration from a State, tribe, or U.S.
territory (or the Commonwealth of Puerto Rico) and have the equivalent
of 3 years of full-time relevant experience;
(ii) Be licensed or certified by the Federal government, a State,
tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to
perform environmental inquiries under Sec. 137.35 and have the
equivalent of 3 years of full-time relevant experience;
(iii) Have a Baccalaureate or higher degree from an accredited
institution of higher education in a discipline of engineering or
science and the equivalent of 5 years of full-time relevant experience;
or
(iv) Have the equivalent of 10 years of full-time relevant
experience.
(2) An environmental professional should remain current in his or
her field through participation in continuing education or other
activities.
(3) The requirements for an environmental professional in this
section do not preempt State professional licensing or registration
requirements, such as those for a professional geologist, engineer, or
site-remediation professional. Before commencing work, a person should
determine the applicability of State professional licensing or
registration laws to the activities to be undertaken as part of an
inquiry under Sec. 137.35(b).
(4) A person who does not qualify as an environmental professional
under this section may assist in the conduct of all appropriate
inquiries according to this part if the person is under the supervision
or responsible charge of an environmental professional meeting the
requirements of this section when conducting the inquiries.
Sec. 137.30 Objectives and performance factors.
(a) Objectives. This part is intended to result in the
identification of conditions indicative of the presence or likely
presence of oil at the facility and the real property on which the
facility is located. In order to meet the objectives of this
regulation, persons specified in Sec. 137.1(a) and the environmental
professional must seek to identify, through the conduct of the
standards and practices in this subpart, the following types of
information about the facility and the real property on which the
facility is located:
(1) Current and past uses and occupancies of the facility and the
real property on which the facility is located.
(2) Current and past uses of oil.
(3) Waste management and disposal activities that indicate presence
or likely presence of oil.
(4) Current and past corrective actions and response activities
that indicate presence or likely presence of oil.
(5) Engineering controls.
(6) Institutional controls, such as zoning restrictions, building
permits, and easements.
(7) Properties adjoining or located nearby the facility and the
real property on which the facility is located that have environmental
conditions that could have resulted in conditions indicative of the
presence or likely presence of oil at the facility and the real
property on which the facility is located.
(b) Performance factors. In order to meet this part and to meet the
objectives stated in paragraph (a) of this section, the persons
specified in Sec. 137.1(a) or the environmental professional (as
appropriate to the particular standard and practice) must--
(1) Gather the information that is required for each standard and
practice listed in this subpart that is publicly available, is
obtainable from its source within a reasonable time and cost, and can
be reviewed practicably; and
(2) Review and evaluate the thoroughness and reliability of the
information gathered in complying with each standard and practice
listed in this subpart taking into account information gathered in the
course of complying with the other standards and practices of this
part.
Sec. 137.33 General all appropriate inquiries requirements.
(a) All appropriate inquiries must be conducted within 1 year
before the date of acquisition of the real property on which the
facility is located, as evidenced by the date of receipt of the
documentation transferring title to, or possession of, the real
property and must include:
(1) An inquiry by an environmental professional, as provided in
Sec. 137.35.
(2) The collection of information under Sec. 137.40 by persons
specified in Sec. 137.1(a).
(b) The following components of the all appropriate inquiries must
be conducted or updated within 180 days before the date of acquisition
of the real property on which the facility is located:
(1) Interviews with past and present owners, operators, and
occupants. See Sec. 137.45.
(2) Searches for recorded environmental cleanup liens. See Sec.
137.55.
(3) Reviews of Federal, State, tribal, and local government
records. See Sec. 137.60.
(4) Visual inspections of the facility, the real property on which
the facility is located, and adjoining properties. See Sec. 137.65.
(5) The declaration by the environmental professional. See Sec.
137.35(d).
(c) All appropriate inquiries may include the results of and
information contained in an inquiry previously conducted by, or on
behalf of, persons specified in Sec. 137.1(a) who are responsible for
the inquiries for the facility and the real property on which the
facility is located if--
(1) The information was collected during the conduct of an all-
appropriate-inquiries investigation under this part.
(2) The information was collected or updated within 1 year before
the date of acquisition of the real property on which the facility is
located.
(3) The following components of the inquiries were conducted or
updated within 180 days before the date of acquisition of the real
property on which the facility is located:
(i) Interviews with past and present owners, operators, and
occupants. See Sec. 137.45.
(ii) Searches for recorded environmental cleanup liens. See Sec.
137.55.
(iii) Reviews of Federal, State, tribal, and local government
records. See Sec. 137.60.
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(iv) Visual inspections of the facility, the real property on which
the facility is located, and the adjoining properties. See Sec.
137.65.
(v) The declaration by the environmental professional. See Sec.
137.35(d).
(4) Previously collected information is updated by including
relevant changes in the conditions of the facility and the real
property on which the facility is located and specialized knowledge, as
outlined in Sec. 137.70, of the persons conducting the all appropriate
inquiries for the facility and the real property on which the facility
is located, including persons specified in Sec. 137.1(a) and the
environmental professional.
(d) All appropriate inquiries may include the results of an
environmental professional's report under Sec. 137.35(c) that have
been prepared by or for other persons if--
(1) The reports meet the objectives and performance factors in
Sec. 137.30(a) and (b); and
(2) The person specified in Sec. 137.1(a) reviews the information
and conducts the additional inquiries under Sec. Sec. 137.70, 137.75,
and 137.80 and updates the inquiries requiring an update under
paragraph (b) of this section.
(e) To the extent there are data gaps that affect the ability of
persons specified in Sec. 137.1(a) and environmental professionals to
identify conditions indicative of the presence or likely presence of
oil, the gaps must be identified in the report under Sec.
137.35(c)(2). In addition, the sources of information consulted to
address data gaps should be identified and the significance of the gaps
noted. Sampling and analysis may be conducted to develop information to
address data gaps.
(f) Any conditions indicative of the presence or likely presence of
oil identified as part of the all-appropriate-inquiries investigation
should be noted in the report.
Sec. 137.35 Inquiries by an environmental professional.
(a) Inquiries by an environmental professional must be conducted
either by the environmental professional or by a person under the
supervision or responsible charge of an environmental professional.
(b) The inquiry of the environmental professional must include the
requirements in Sec. Sec. 137.45 (interviews with past and present
owners), 137.50 (reviews of historical sources), 137.60 (reviews of
government records), 137.65 (visual inspections), 137.80 (commonly
known or reasonably ascertainable information) and 137.85 (degree of
obviousness of the presence or likely presence of oil). In addition,
the inquiry should take into account information provided to the
environmental professional by the person specified in Sec. 137.1(a)
conducting the additional inquiries under Sec. 137.40.
(c) The results of the inquiry by an environmental professional
must be documented in a written report that, at a minimum, includes the
following:
(1) An opinion as to whether the inquiry has identified conditions
indicative of the presence or likely presence of oil at the facility
and the real property on which the facility is located.
(2) An identification of data gaps in the information developed as
part of the inquiry that affect the ability of the environmental
professional to identify conditions indicative of the presence or
likely presence of oil at the facility and the real property on which
the facility is located. The report must also indicate whether the gaps
prevented the environmental professional from reaching an opinion
regarding the identification of conditions indicative of the presence
or likely presence of oil.
(3) The qualifications of the environmental professional.
(4) An opinion regarding whether additional appropriate
investigation is necessary.
(d) The environmental professional must place the following
statements in the written document identified in paragraph (c) of this
section and sign the document: ``[I, We] declare that, to the best of
[my, our] professional knowledge, [I, we] meet the requirements under
33 CFR 137.25 for an environmental professional.'' and ``[I, We] have
the specific qualifications based on education, training, and
experience to assess the nature, history, and setting of a facility and
the real property on which it is located. [I, We] have developed and
conducted all appropriate inquiries according to the standards and
practices in 33 CFR part 137.''
Sec. 137.40 Additional inquiries.
(a) Persons specified in Sec. 137.1(a) must conduct inquiries in
addition to those conducted by the environmental professional under
Sec. 137.35 and may provide the information associated with these
additional inquiries to the environmental professional responsible for
conducting the activities listed in Sec. 137.35--
(1) As required by Sec. 137.55 and if not otherwise obtained by
the environmental professional, environmental cleanup liens against the
facility and the real property on which it is located that are filed or
recorded under Federal, State, tribal, or local law.
(2) As required by Sec. 137.70, specialized knowledge or
experience of the person specified in Sec. 137.1(a).
(3) As required by Sec. 137.75, the relationship of the purchase
price to the fair market value of the facility and the real property on
which the facility is located if the oil was not at the facility and
the real property on which it is located.
(4) As required by Sec. 137.80 and if not otherwise obtained by
the environmental professional, commonly known or reasonably
ascertainable information about the facility and the real property on
which it is located.
(b) [Reserved]
Sec. 137.45 Interviews with past and present owners, operators, and
occupants.
(a) Interviews with owners, operators, and occupants of the
facility and the real property on which the facility is located must be
conducted for the purposes of achieving the objectives and performance
factors of Sec. 137.30(a) and (b).
(b) The inquiry of the environmental professional must include
interviewing the current owner and occupant of the facility and the
real property on which the facility is located. If the facility and the
real property on which the facility is located has multiple occupants,
the inquiry of the environmental professional must include interviewing
major occupants, as well as those occupants likely to use, store,
treat, handle or dispose of oil or those who have likely done so in the
past.
(c) The inquiry of the environmental professional also must
include, to the extent necessary to achieve the objectives and
performance factors in Sec. 137.30(a) and (b), interviewing one or
more of the following persons:
(1) Current and past facility and real property managers with
relevant knowledge of uses and physical characteristics of the facility
and the real property on which the facility is located.
(2) Past owners, occupants, or operators of the facility and the
real property on which the facility is located.
(3) Employees of current and past occupants of the facility and the
real property on which the facility is located.
(d) In the case of inquiries conducted at abandoned properties
where there is evidence of potential unauthorized uses or evidence of
uncontrolled access, the environmental professional's inquiry must
include an interview of at least
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one owner or occupant of a neighboring property from which it appears
possible that the owner or occupant of the neighboring property could
have observed use or other presence or likely presence of oil.
Sec. 137.50 Reviews of historical sources of information.
(a) Historical documents and records must be reviewed for the
purposes of achieving the objectives and performance factors of Sec.
137.30(a) and (b). Historical documents and records may include, but
are not limited to, aerial photographs, fire insurance maps, building
department records, chain of title documents, and land use records.
(b) Historical documents and records reviewed must cover a period
of time as far back in the history of the real property to when the
first structure was built or when it was first used for residential,
agricultural, commercial, industrial, or governmental purposes. The
environmental professional may exercise professional judgment in
context of the facts available at the time of the inquiry as to how far
back in time it is necessary to search historical records.
Sec. 137.55 Searches for recorded environmental cleanup liens.
(a) All appropriate inquiries must include a search for the
existence of environmental cleanup liens against the facility and the
real property on which the facility is located that are filed or
recorded under Federal, State, tribal, or local law.
(b) All information collected by persons specified in Sec.
137.1(a) rather than an environmental professional regarding the
existence of environmental cleanup liens associated with the facility
and the real property on which the facility is located may be provided
to the environmental professional or retained by the applicable party.
Sec. 137.60 Reviews of Federal, State, tribal, and local government
records.
(a) Federal, State, tribal, and local government records or
databases of government records of the facility, the real property on
which the facility is located, and adjoining properties must be
reviewed for the purposes of achieving the objectives and performance
factors of Sec. 137.30(a) and (b).
(b) With regard to the facility and the property on which the
facility is located, the review of Federal, State, and tribal
government records or databases of the government records and local
government records and databases of the records should include--
(1) Records of reported oil discharges present, including site
investigation reports for the facility and the real property on which
the facility is located;
(2) Records of activities, conditions, or incidents likely to cause
or contribute to discharges or substantial threat of discharges of oil,
including landfill and other disposal unit location records and
permits, storage tank records and permits, hazardous waste handler and
generator records and permits, Federal, tribal and State government
listings of sites identified as priority cleanup sites, and spill
reporting records;
(3) Comprehensive Environmental Response, Compensation, and
Liability Information System (CERCLIS) records;
(4) Public health records;
(5) Emergency Response Notification System records;
(6) Registries or publicly available lists of engineering controls;
and
(7) Registries or publicly available lists of institutional
controls, including environmental land use restrictions, applicable to
the facility and the real property on which the facility is located.
(c) With regard to nearby or adjoining properties, the review of
Federal, State, tribal, and local government records or databases of
government records should include the identification of the following:
(1) Properties for which there are government records of reported
discharges or substantial threat of discharges of oil. Such records or
databases containing such records and the associated distances from the
facility and the real property on which the facility is located for
which such information should be searched include the following:
(i) Records of National Priorities List (NPL) sites or tribal- and
State-equivalent sites (one mile).
(ii) Resource Conservation and Recovery Act (RCRA) properties
subject to corrective action (one mile).
(iii) Records of Federally-registered, or State-permitted or -
registered, hazardous waste sites identified for investigation or
remediation, such as sites enrolled in State and tribal voluntary
cleanup programs and tribal- and State-listed brownfield sites (one-
half mile).
(iv) Records of leaking underground storage tanks (one-half mile).
(2) Properties that previously were identified or regulated by a
government entity due to environmental concerns at the facility and the
real property on which the facility is located. The records or
databases containing the records and the associated distances from the
facility and the real property on which the facility is located for
which the information should be searched include the following:
(i) Records of delisted NPL sites (one-half mile).
(ii) Registries or publicly available lists of engineering controls
(one-half mile).
(iii) Records of former CERCLIS sites with no further remedial
action notices (one-half mile).
(3) Properties for which there are records of Federally-permitted,
State-permitted or -registered, or tribal-permitted or -registered
waste management activities. The records or databases that may contain
the records include the following:
(i) Records of RCRA small quantity and large quantity generators
(adjoining properties).
(ii) Records of Federally-permitted, State-permitted or -
registered, or tribal-permitted landfills and solid waste management
facilities (one-half mile).
(iii) Records of registered storage tanks (adjoining property).
(4) A review of additional government records with regard to sites
identified under paragraphs (c)(1) through (c)(3) of this section may
be necessary in the judgment of the environmental professional for the
purpose of achieving the objectives and performance factors of
Sec. Sec. 137.30(a) and (b).
(d) The search distance from the real property boundary for
reviewing government records or databases of government records listed
in paragraph (c) of this section may be modified based upon the
professional judgment of the environmental professional. The rationale
for the modifications must be documented by the environmental
professional. The environmental professional may consider one or more
of the following factors in determining an alternate appropriate search
distance--
(1) The nature and extent of a discharge.
(2) Geologic, hydrogeologic, or topographic conditions of the
property and surrounding environment.
(3) Land use or development densities.
(4) The property type.
(5) Existing or past uses of surrounding properties.
(6) Potential migration pathways (e.g., groundwater flow direction,
prevalent wind direction).
(7) Other relevant factors.
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Sec. 137.65 Visual inspections of the facility, real property on
which the facility is located, and adjoining properties.
(a) For the purpose of achieving the objectives and performance
factors of Sec. 137.30(a) and (b), the inquiry of the environmental
professional must include the following:
(1) A visual on-site inspection of the facility and the real
property on which the facility is located, and the improvements at the
facility and real property, including a visual inspection of the areas
where oil may be or may have been used, stored, treated, handled, or
disposed. Physical limitations to the visual inspection must be noted.
(2) A visual inspection of adjoining properties, from the subject
real property line, public rights-of-way, or other vantage point (e.g.,
aerial photography), including a visual inspection of areas where oil
may be or may have been stored, treated, handled or disposed. A visual
on-site inspection is recommended, though not required. Physical
limitations to the inspection of adjacent properties must be noted.
(b) Except as in paragraph (c) of this section, a visual on-site
inspection of the facility and the real property on which the facility
is located must be conducted.
(c) An on-site inspection is not required if an on-site visual
inspection of the facility and the real property on which the facility
is located cannot be performed because of physical limitations, remote
and ina
