Amendment to Standards and Practices for All Appropriate Inquiries Under CERCLA, 79319-79324 [2013-31112]

Download as PDF wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations this proposed action merely approves a state program and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and, • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the state program is not approved to regulate in Indian country located in North Dakota, and the EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law. Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 such rule or action. This action, pertaining to the approval of the NDDA’s delegation of authority for the chemical accident prevention provisions (CAA section 112), may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Intergovernmental relations, Risk management program. Dated: December 13, 2013. Shaun L. McGrath, Regional Administrator, Region 8. 40 CFR part 63 is amended as follows: PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: ■ Authority: 42 U.S.C. 7401, et seq. Subpart E—Approval of State Programs and Delegation of Federal Authorities 2. Section 63.99 is amended by adding paragraph (a)(35) to read as follows: ■ § 63.99 Delegated Federal authorities. (a) * * * (35) North Dakota. The North Dakota Department of Agriculture is delegated the authority to implement and enforce the provisions of 40 CFR part 68 at facilities with an anhydrous ammonia storage capacity of ten thousand pounds or more that is intended to be used as fertilizer or in the manufacturing of a fertilizer within North Dakota and that are subject to the requirements of 40 CFR part 68, in accordance with the final rule, dated December 30, 2013. [FR Doc. 2013–31269 Filed 12–27–13; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 312 [EPA–HQ–SFUND–2013–0513; FRL–9904– 52–OSWER] Amendment to Standards and Practices for All Appropriate Inquiries Under CERCLA Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) today is taking final SUMMARY: PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 79319 action to amend the standards and practices for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to reference a standard practice recently made available by ASTM International, a widely recognized standards development organization. Specifically, this final rule amends the ‘‘All Appropriate Inquiries Rule’’ at 40 CFR Part 312 to reference ASTM International’s E1527–13 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ and make clear that persons conducting all appropriate inquiries may use the procedures included in this standard to comply with the All Appropriate Inquiries Rule. DATES: This rule is effective on December 30, 2013. FOR FURTHER INFORMATION CONTACT: For general information contact the CERCLA Call Center at 800–424–9346 or TDD 800–533–7672 (hearing impaired). In the Washington, DC metropolitan area, call 703–412–9810 or TDD 703–412– 3323. For more detailed information on specific aspects of this rule, contact Patricia Overmeyer, Office of Brownfields and Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460–0002, 202– 566–2774, or Overmeyer.patricia@ epa.gov. SUPPLEMENTARY INFORMATION: Who potentially may be affected by today’s rule? Today’s action offers parties the option of using an additional ASTM International standard to conduct all appropriate inquiries. Parties purchasing potentially contaminated properties may use the ASTM E1527–13 standard practice when conducting all appropriate inquiries pursuant to CERCLA. However, today’s rule does not require that any party use this standard. Any party who wants to conduct all appropriate inquiries under CERCLA may follow the All Appropriate Inquiries Rule at 40 CFR Part 312 or use the new standard recognized in today’s final rule, the ASTM E1527–13 standard. Parties potentially affected by this action are those who may choose to use the newly referenced ASTM standard to perform all appropriate inquiries and include public and private parties who, as bona fide prospective purchasers, contiguous property owners, or innocent landowners, are purchasing potentially contaminated properties and E:\FR\FM\30DER1.SGM 30DER1 79320 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations intend to claim a limitation on CERCLA liability in conjunction with the property purchase. In addition, any party conducting a site characterization or assessment on a property with a brownfields grant awarded under CERCLA section 104(k)(2)(B)(ii) may be affected by today’s action. This includes state, local and tribal governments that receive brownfields site assessment grants. A summary of the potentially affected industry sectors (by North American Industry Classification System (NAICS) codes) is displayed in the table below. Industry category Real Estate ............................... Insurance .................................. Banking/Real Estate Credit ...... Environmental Consulting Services ........................................ State, Local and Tribal Government ...................................... Federal Government ................. NAICS code 531 52412 52292 54162 926110, 925120 925120, 921190, 924120 The list of potentially affected entities in the table above may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action. However, this action may affect other entities not listed in the table. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT. Content of Today’s Rule I. Statutory Authority II. Background III. Summary of Comments IV. Overview of Today’s Action V. Statutory and Executive Order Reviews wreier-aviles on DSK5TPTVN1PROD with RULES I. Statutory Authority This rule, which amends the All Appropriate Inquiries Rule at 40 CFR part 312 setting federal standards for the conduct of ‘‘all appropriate inquiries’’, is promulgated under the authority of section 101(35)(B) of CERCLA (42 U.S.C. 9601), as amended by the Small Business Liability Relief and Brownfields Revitalization Act of 2002. II. Background On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act, Public Law 107–118 (‘‘the Brownfields Amendments’’), which amended CERCLA. In general, the Brownfields Amendments provide funds to assess and clean up VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 brownfields sites; clarify CERCLA liability provisions related to certain purchasers of contaminated properties; and provide funding to enhance state and tribal cleanup programs. Subtitle B of the Brownfields Amendments revises some of the provisions of CERCLA section 101(35) and limits CERCLA liability under Section 107 (42 U.S.C. 9607) for bona fide prospective purchasers and contiguous property owners, in addition to clarifying the requirements necessary to establish the innocent landowner defense under CERCLA. The Brownfields Amendments provide that parties purchasing potentially contaminated property must undertake ‘‘all appropriate inquiries’’ into prior ownership and use of the property at issue prior to purchase in order to qualify for protection from CERCLA liability. The Brownfields Amendments also required EPA to develop regulations establishing standards and practices for conducting all appropriate inquiries. EPA promulgated regulations that set standards and practices for all appropriate inquiries on November 1, 2005 (70 FR 66070). In that rule, EPA referenced the ASTM E1527–05 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ and authorized its use to comply with the rule. In December 2008, EPA amended the rule to recognize another ASTM International standard as compliant with the rule, ASTM E2247–08 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property’’ (73 FR 78716). In November 2013, ASTM International published ASTM E1527– 13, ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.’’ Earlier in 2013, EPA reviewed this standard, in response to ASTM International’s request, and determined that use of the standard would be compliant with the All Appropriate Inquiries Rule. On August 15, 2013, EPA published a direct final rule to amend the All Appropriate Inquiries Rule to reference ASTM International’s E1527–13 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ and allow for its use to comply with the All Appropriate Inquiries Rule (78 FR 49690). A companion proposed rule, also published on August 15, 2013, invited comment on the direct final rule and stated that if EPA received adverse comment on the proposal to reference PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 the ASTM E1527–13 standard, the Agency would withdraw the direct final rule (78 FR 49714). EPA received adverse comments on the direct final rule and published a notice of withdrawal of the direct final rule on October 29, 2013 (78 FR 64403). With today’s action, EPA is addressing the comments received in response to the August 15, 2013, proposed rule and finalizing the amendment to the All Appropriate Inquiry Rule referencing the ASTM E1527–13 standard practice. EPA also is announcing today its intent to publish a proposed rule, in the near future, that will propose amending the All Appropriate Inquiries final rule to remove the previous reference to the ASTM E1527–05 Phase I Environmental Site Assessment Standard. This action was not discussed in the August 15, 2013 Federal Register notices, and so the Agency intends to propose this separately in order to provide an opportunity for public comment. With today’s action, EPA is establishing that parties seeking liability relief under CERCLA’s landowner liability protections, as well as recipients of brownfields grants for conducting site assessments, will be considered to have met the standards and practices for all appropriate inquiries, as set forth in the Brownfields Amendments to CERCLA and 40 CFR Part 312, if such parties follow the procedures provided in the ASTM E1527–13 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.’’ EPA made this determination based upon the Agency’s finding that the ASTM E1527–13 standard is compliant with the All Appropriate Inquiries Rule. Therefore, parties conducting all appropriate inquiries may use the procedures in the newly issued ASTM E1527–13 standard when conducting all appropriate inquiries. III. Summary of Comments EPA received forty-one comments on the proposed rule published August 15, 2013. EPA developed a response-tocomments document and placed it in the docket for today’s action. The comments and EPA’s responses are summarized here. Most commenters supported the Agency’s proposed action. Several commenters raised concerns related to the Agency’s decision to continue to recognize a previous ASTM standard, ASTM E1527–05, as compliant with the All Appropriate Inquiries Rule. Other than recognizing the new standard, EPA did not propose, and is not finalizing with today’s action, any amendments or changes to the AAI Rule. Although E:\FR\FM\30DER1.SGM 30DER1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES today’s action will not remove the current reference in the All Appropriate Inquiries Rule to the ASTM E1527–05 standard, EPA agrees with commenters that the revised ASTM E1527–13 standard includes improvements to the previous standard and its use will result in greater clarity for prospective purchases with regard to potential contamination at a property. Therefore, EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527–13 standard. In the near future, EPA intends to publish a proposed rulemaking to remove the reference to the ASTM E1527–05 standard in the All Appropriate Inquiries Rule. By taking such action the Agency’s intent will be to promote the use of the current industry standard and reduce confusion associated with the regulatory reference to a standard no longer recognized as current by ASTM International and no longer marketed by the standards development organization as reflecting its current consensus-based standard. EPA also received comments recommending changes to the requirements contained in the All Appropriate Inquiries Rule, including several comments requesting changes to the rule’s definition of environmental professional. In the August 15, 2013, Direct Final Rule and the companion Proposed Rule, EPA did not propose any changes to the requirements of 40 CFR Part 312 and did not request comment on the content of the rulemaking beyond whether the new ASTM standard could be recognized as compliant with the All Appropriate Inquiries Rule. Therefore, those comments were outside the scope of the rulemaking and EPA is not responding to those comments. Some commenters included in their comments to EPA recommendations for changes to the ASTM E1527–13 standard or commented on the ASTM process for reviewing and updating its standards. Comments critical of the new standard that are unrelated to whether it meets the requirements of the All Appropriate Inquiries Rule are outside the scope of this rulemaking. Commenters interested in proposing changes to the ASTM standard should contact ASTM International directly. IV. Overview of Today’s Action A. What is the intent of today’s Final Rule? In today’s Final Rule, EPA is recognizing the newly issued ASTM E1527–13 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 Process,’’ as compliant with the All Appropriate Inquiries Rule. In EPA’s view, the new ASTM E1527–13 provides an improved process for parties who choose to undertake all appropriate inquiries. The ASTM E1527–13 standard is similar to the previous ASTM E1527–05 standard. ASTM International updated the previous standard in accordance with its standard protocol for the review of its standard practices and guides. (ASTM typically reviews and revises or re-issues its standards every eight years.) The changes in the standard are based upon expertise and experience gained by ASTM members and practitioners in the field since the 2005 standard was published. In EPA’s view, these changes enhance the usefulness of the standard in identifying potential releases and threatened releases of hazardous substances at commercial and industrial properties. To facilitate an understanding of the differences between the updated ASTM E1527–13 Phase I Environmental Site Assessment Standard and the previous ASTM E1527–05 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ EPA developed, and placed in the docket for today’s action, the document ‘‘Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process: How E1527–13 Differs from E1527–05.’’ By taking today’s action, EPA is fulfilling the intent and requirements of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113. The NTTAA requires federal agencies to use voluntary consensus standards in their regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The ASTM E1527–13 is a voluntary consensus standard, and EPA believes it is appropriate under the NTTAA to recognize this standard as a means of conducting all appropriate inquiries. B. What are the revisions to the ASTM International Phase I Environmental Site Assessment Standard? The ASTM E1527–13 standard is similar to the ASTM E1527–05 standard in format, process, and areas of coverage. In fact, many of the sections in ASTM E1527–13 are taken verbatim from ASTM E1527–05. The newly revised standard provides some clarifications and additional guidance for the environmental assessment of commercial and industrial properties and the determination of whether there PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 79321 are recognized environmental conditions or conditions indicative of releases or threatened releases of hazardous substances at a property. EPA believes that ASTM E1527–13 improves upon the previous standard and reflects the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions and meeting continuing obligations under the CERCLA liability protections. In particular, the new ASTM E1527–13 standard enhances the previous standard with regard to the delineation of historical releases or recognized environmental conditions at a property and makes important revisions to the standard practice to clarify that all appropriate inquires and phase I environmental site assessments must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor migration and vapor releases on, at, in or to the subject property. Additional revisions to the ASTM E1527–05 standard include: • ASTM International updated the definition of ‘‘Recognized Environmental Condition (REC).’’ • ASTM International updated its definition of ‘‘Historical Recognized Environmental Condition (HREC).’’ • ASTM International added a definition of ‘‘Controlled Recognized Environmental Condition (CREC) to the standard.’’ • ASTM International added a clarification to the definition of ‘‘de minimis condition.’’ • ASTM International revised the definition of ‘‘migrate/migration’’ to specifically include vapor migrations. • ASTM International revised the standard’s definition of ‘‘release’’ to clarify that the definition has the same meaning as the definition of release in CERCLA . • ASTM International added additional guidance related to the regulatory agency file and records review requirement to provide a standardized framework for verifying agency information obtained from key databases. EPA views these enhancements and clarifications to the ASTM standard as valuable improvements and strongly encourages prospective purchasers of real property to use the updated ASTM E1527–13 standard when conducting all appropriate inquiries. Several of the more significant changes are discussed briefly below. In the case of vapor releases, or the potential presence or migration of vapors associated with hazardous E:\FR\FM\30DER1.SGM 30DER1 wreier-aviles on DSK5TPTVN1PROD with RULES 79322 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations substances or petroleum products, EPA notes that both the All Appropriate Inquiries Rule and the ASTM E1527–05 standard already call for the identification of potential vapor releases or vapor migration at a property, to the extent they are indicative of a release or threatened release of hazardous substances. The All Appropriate Inquiries Rule is designed to identify conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property. 40 CFR 312.1(c)(2). In the case of the ASTM E1527–05 standard, users and environmental professionals are required to identify recognized environmental conditions that include the presence or likely presence of hazardous substances or petroleum products under conditions that indicate an existing release, a past release, or a material threat of a release. Neither the All Appropriate Inquiries Rule nor the ASTM E 1527–05 standard excludes the identification of vapor releases as a possible type of release. However, some users of the ASTM E1527–05 standard and some who submitted comments in response to EPA’s August 15, 2013, proposed rule raised concerns that potential vapor releases on, at, in or to a property are often not considered or may be overlooked by many practitioners when conducting all appropriate inquiries. EPA wishes to be clear that, in its view, vapor migration has always been a relevant potential source of release or threatened release that, depending on site-specific conditions, may warrant identification when conducting all appropriate inquiries. EPA applauds the revisions made by ASTM International to the updated E1527–13 standard regarding vapor migration. EPA anticipates that practitioners properly conducting all appropriate inquiries will consider all conditions indicative of releases and threatened releases of hazardous substances and that the revised standard will help reduce previous confusion on how to conduct a thorough all appropriate inquiries investigation. ASTM International also revised the definition of ‘‘historical recognized environmental condition’’ (HREC). The revised definition clarifies that the scope and application of a HREC is limited to only past releases that have been addressed to a degree allowing for unrestricted use of the property. In addition, the revised standard includes a new term ‘‘Controlled Recognized Environmental Condition’’ (CREC) that is defined as past releases that have been addressed but allow contamination to remain in place subject to the VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 implementation of required controls. The result of these two clarifications will have the effect of providing prospective purchasers with better information regarding the nature of historic releases at a property and provide prospective purchasers with a better basis for making informed decisions regarding potential future uses of a property. EPA notes that these clarifications and the improved level of information that may result due to the implementation of the revised standard will result in enhanced information on potential contamination for prospective purchasers. Therefore, EPA anticipates that prospective purchasers looking to claim protection from CERCLA liability will prefer this additional clarity and will request that environmental professionals use the ASTM E1527–13 standard when conducting all appropriate inquiries investigations. EPA applauds the additional rigor and clarity provided in ASTM E1527–13 standard, and the Agency recommends that prospective property owners and environmental professionals use the updated standard. Other revisions to the ASTM E1527– 05 standard include additional guidance related to the regulatory agency file and records review requirements. The ASTM E1527–13 standard provides a standardized framework for verifying agency information obtained from key databases. This additional guidance, and added framework for file and record reviews, clarifies that an environmental professional should make efforts to review and document the validity of information found from searches of agency databases. Such an inquiry will generally enhance the quality of reports and level of confidence that users, or prospective property owners, can place on site assessment results. In EPA’s view, all of the clarifications and revisions listed above represent enhancements to the ASTM E1527–05 standard. EPA anticipates that prospective purchasers and environmental professionals will embrace the increased level of rigor provided by the revisions and will adopt the ASTM E1527–13 standard. EPA recommends that the ASTM E1527–13 standard be used to conduct all appropriate inquiries investigations and Phase I Environmental Site Assessments. EPA anticipates that those conducting or relying on an all appropriate inquiries investigation will generally adjust to using the updated standard, particularly in light of the fact that ASTM International will label the ASTM E1527–05 Standard a historical standard and establish that the revised standard is the only standard reflecting PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 the current consensus of the responsible ASTM International technical committee. Given that the revised ASTM E1527–13 standard is now available from ASTM International, and given that ASTM International established that the ASTM E1527–13 standard is the only standard that reflects the consensus of its technical committee, EPA intends to publish a proposed rule to remove the current reference in the AAI Rule to the historic standard. Such action will remove any confusion prompted by the regulatory reference to a standard that does not correspond to ASTM International’s consensus practice. Should EPA determine in the future that the enhanced standards and practices contained in the ASTM E1527–13 standard are not being widely adopted, EPA may examine the need to further modify the All Appropriate Inquiries Rule (40 CFR part 312) to explicitly require the types of enhanced activities provided for in the updated ASTM E1527–13 standard. C. What is the effective date of this rule? This rule is effective as of the date of its publication in the Federal Register. There is good cause under Section 553 of the Administrative Procedure Act (APA) for this revision to become effective immediately. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication ‘‘as otherwise provided by the agency for good cause found and published with the rule.’’ 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements or take other action for which affected parties would need time to prepare before the rule takes effect. Rather, this action merely offers parties the option of using an additional ASTM International standard to conduct all appropriate inquiries. Today’s rule does not require that any party use this standard. For these reasons, there is good cause under the APA for this revision to become effective on the date of publication of this action. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under Executive Order (EO) 12866, titled ‘‘Regulatory Planning and Review’’ (58 FR 51735 E:\FR\FM\30DER1.SGM 30DER1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations (October 4, 1993)), and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). The current regulation does not have an information collection burden and today’s action only change to the regulation is to allow for the use of an additional standard. regulation, it merely allows for the use of an additional voluntary consensus standard. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. Thus, EO 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments wreier-aviles on DSK5TPTVN1PROD with RULES C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis for any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small business, small organizations, and small governmental jurisdictions. Today’s action does not change the current regulatory status quo and does not impose any regulatory requirements. After considering the economic impacts of today’s final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not have tribal implications, as specified in EO 13175 (65 FR 67249 (November 9, 2000)). Today’s action does not change any current regulatory requirements and therefore does not impose any impacts upon tribal entities. Thus, EO 13175 does not apply to this action. D. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action merely allows for the use of a voluntary consensus standard. This action allows for the newly recognized standard to be used by any entity. The action imposes no new regulatory requirements and will result in no additional burden to any entity. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA. As stated above, this rule is also not subject to the requirements of section 203 of UMRA because it contains no new regulatory requirements that might significantly or uniquely affect small governments. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use E. Executive Order 13132: Federalism This action does not have federalism implications. Today’s action does not substantially change the current VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. This action is not subject to EO 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under EO 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104– 113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 79323 This action involves technical standards. Therefore, the requirements of section 12(d) of the NTTAA (15 U.S.C. 272) apply. The NTTAA was signed into law on March 7, 1996 and, among other things, directs the National Institute of Standards and Technology (NIST) to bring together federal agencies as well as state and local governments to achieve greater reliance on voluntary standards and decreased dependence on government developed standards. It states that use of such standards, whenever practicable and appropriate, is intended to achieve the following goals: (a) Eliminate the cost to the government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulation; (b) provide incentives and opportunities to establish standards that serve national needs; (c) encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards; and (d) further the policy of reliance upon the private sector to supply Government needs for goods and services. The Act requires that federal agencies adopt private sector standards, particularly those developed by standards developing organizations (SDOs), wherever possible in lieu of creating proprietary, non-consensus standards. Today’s action complies with the NTTAA as it allows for persons conducting all appropriate inquiries to use the procedures included in the use of the ASTM International standard known as Standard E1527–13 and entitled ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process to comply with the All Appropriate Inquiries Rule.’’ J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or E:\FR\FM\30DER1.SGM 30DER1 79324 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Rules and Regulations environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Today’s action does not change any regulatory requirements or impose any new requirements. DEPARTMENT OF HOMELAND SECURITY K. Congressional Review Act [Docket ID FEMA–2013–0002; Internal Agency Docket No. FEMA–8315] The Congressional Review Act, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule is effective on December 30, 2013. List of Subjects in 40 CFR Part 312 Administrative practice and procedure, Hazardous substances. Dated: December 19, 2013. Mathy Stanislaus, Assistant Administrator. For the reasons set out in the preamble, title 40 chapter I of the code of Federal Regulations is amended as follows: PART 312—[AMENDED] 1. The authority citation for part 312 continues to read as follows: ■ Authority: Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 9601(35)(B). Subpart B—Definitions and References 2. Section 312.11 is amended by adding paragraph (c) to read as follows: ■ § 312.11 References. wreier-aviles on DSK5TPTVN1PROD with RULES * * * * * (c) The procedures of ASTM International Standard E1527–13 entitled ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.’’ This standard is available from ASTM International at www.astm.org, 1–610–832–9585. [FR Doc. 2013–31112 Filed 12–27–13; 8:45 am] BILLING CODE 6560–50–P VerDate Mar<15>2010 15:10 Dec 27, 2013 Jkt 232001 Federal Emergency Management Agency 44 CFR Part 64 Suspension of Community Eligibility Federal Emergency Management Agency, DHS. ACTION: Final rule. AGENCY: This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA’s Community Status Book (CSB). The CSB is available at https:// www.fema.gov/fema/csb.shtm. DATES: Effective Dates: The effective date of each community’s scheduled suspension is the third date (‘‘Susp.’’) listed in the third column of the following tables. FOR FURTHER INFORMATION CONTACT: If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2953. SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain SUMMARY: PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR Part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register. In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA’s initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified. Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared. E:\FR\FM\30DER1.SGM 30DER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Rules and Regulations]
[Pages 79319-79324]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31112]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-SFUND-2013-0513; FRL-9904-52-OSWER]


Amendment to Standards and Practices for All Appropriate 
Inquiries Under CERCLA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) today is taking 
final action to amend the standards and practices for conducting all 
appropriate inquiries under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) to reference a standard 
practice recently made available by ASTM International, a widely 
recognized standards development organization. Specifically, this final 
rule amends the ``All Appropriate Inquiries Rule'' at 40 CFR Part 312 
to reference ASTM International's E1527-13 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process'' and make clear that persons conducting all appropriate 
inquiries may use the procedures included in this standard to comply 
with the All Appropriate Inquiries Rule.

DATES: This rule is effective on December 30, 2013.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
CERCLA Call Center at 800-424-9346 or TDD 800-533-7672 (hearing 
impaired). In the Washington, DC metropolitan area, call 703-412-9810 
or TDD 703-412-3323. For more detailed information on specific aspects 
of this rule, contact Patricia Overmeyer, Office of Brownfields and 
Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW., Washington, DC 20460-0002, 202-566-2774, or 
Overmeyer.patricia@epa.gov.

SUPPLEMENTARY INFORMATION:

Who potentially may be affected by today's rule?

    Today's action offers parties the option of using an additional 
ASTM International standard to conduct all appropriate inquiries. 
Parties purchasing potentially contaminated properties may use the ASTM 
E1527-13 standard practice when conducting all appropriate inquiries 
pursuant to CERCLA. However, today's rule does not require that any 
party use this standard. Any party who wants to conduct all appropriate 
inquiries under CERCLA may follow the All Appropriate Inquiries Rule at 
40 CFR Part 312 or use the new standard recognized in today's final 
rule, the ASTM E1527-13 standard.
    Parties potentially affected by this action are those who may 
choose to use the newly referenced ASTM standard to perform all 
appropriate inquiries and include public and private parties who, as 
bona fide prospective purchasers, contiguous property owners, or 
innocent landowners, are purchasing potentially contaminated properties 
and

[[Page 79320]]

intend to claim a limitation on CERCLA liability in conjunction with 
the property purchase. In addition, any party conducting a site 
characterization or assessment on a property with a brownfields grant 
awarded under CERCLA section 104(k)(2)(B)(ii) may be affected by 
today's action. This includes state, local and tribal governments that 
receive brownfields site assessment grants. A summary of the 
potentially affected industry sectors (by North American Industry 
Classification System (NAICS) codes) is displayed in the table below.

------------------------------------------------------------------------
                     Industry category                        NAICS code
------------------------------------------------------------------------
Real Estate................................................          531
Insurance..................................................        52412
Banking/Real Estate Credit.................................        52292
Environmental Consulting Services..........................        54162
State, Local and Tribal Government.........................      926110,
                                                                  925120
Federal Government.........................................      925120,
                                                                 921190,
                                                                  924120
------------------------------------------------------------------------

    The list of potentially affected entities in the table above may 
not be exhaustive. Our aim is to provide a guide for readers regarding 
those entities that EPA is aware potentially could be affected by this 
action. However, this action may affect other entities not listed in 
the table. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

Content of Today's Rule

I. Statutory Authority
II. Background
III. Summary of Comments
IV. Overview of Today's Action
V. Statutory and Executive Order Reviews

I. Statutory Authority

    This rule, which amends the All Appropriate Inquiries Rule at 40 
CFR part 312 setting federal standards for the conduct of ``all 
appropriate inquiries'', is promulgated under the authority of section 
101(35)(B) of CERCLA (42 U.S.C. 9601), as amended by the Small Business 
Liability Relief and Brownfields Revitalization Act of 2002.

II. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act, Public Law 107-118 
(``the Brownfields Amendments''), which amended CERCLA. In general, the 
Brownfields Amendments provide funds to assess and clean up brownfields 
sites; clarify CERCLA liability provisions related to certain 
purchasers of contaminated properties; and provide funding to enhance 
state and tribal cleanup programs. Subtitle B of the Brownfields 
Amendments revises some of the provisions of CERCLA section 101(35) and 
limits CERCLA liability under Section 107 (42 U.S.C. 9607) for bona 
fide prospective purchasers and contiguous property owners, in addition 
to clarifying the requirements necessary to establish the innocent 
landowner defense under CERCLA. The Brownfields Amendments provide that 
parties purchasing potentially contaminated property must undertake 
``all appropriate inquiries'' into prior ownership and use of the 
property at issue prior to purchase in order to qualify for protection 
from CERCLA liability.
    The Brownfields Amendments also required EPA to develop regulations 
establishing standards and practices for conducting all appropriate 
inquiries. EPA promulgated regulations that set standards and practices 
for all appropriate inquiries on November 1, 2005 (70 FR 66070). In 
that rule, EPA referenced the ASTM E1527-05 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process'' and authorized its use to comply with the rule. In December 
2008, EPA amended the rule to recognize another ASTM International 
standard as compliant with the rule, ASTM E2247-08 ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process for Forestland or Rural Property'' (73 FR 78716).
    In November 2013, ASTM International published ASTM E1527-13, 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.'' Earlier in 2013, EPA reviewed 
this standard, in response to ASTM International's request, and 
determined that use of the standard would be compliant with the All 
Appropriate Inquiries Rule.
    On August 15, 2013, EPA published a direct final rule to amend the 
All Appropriate Inquiries Rule to reference ASTM International's E1527-
13 ``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process'' and allow for its use to comply 
with the All Appropriate Inquiries Rule (78 FR 49690). A companion 
proposed rule, also published on August 15, 2013, invited comment on 
the direct final rule and stated that if EPA received adverse comment 
on the proposal to reference the ASTM E1527-13 standard, the Agency 
would withdraw the direct final rule (78 FR 49714). EPA received 
adverse comments on the direct final rule and published a notice of 
withdrawal of the direct final rule on October 29, 2013 (78 FR 64403). 
With today's action, EPA is addressing the comments received in 
response to the August 15, 2013, proposed rule and finalizing the 
amendment to the All Appropriate Inquiry Rule referencing the ASTM 
E1527-13 standard practice. EPA also is announcing today its intent to 
publish a proposed rule, in the near future, that will propose amending 
the All Appropriate Inquiries final rule to remove the previous 
reference to the ASTM E1527-05 Phase I Environmental Site Assessment 
Standard. This action was not discussed in the August 15, 2013 Federal 
Register notices, and so the Agency intends to propose this separately 
in order to provide an opportunity for public comment.
    With today's action, EPA is establishing that parties seeking 
liability relief under CERCLA's landowner liability protections, as 
well as recipients of brownfields grants for conducting site 
assessments, will be considered to have met the standards and practices 
for all appropriate inquiries, as set forth in the Brownfields 
Amendments to CERCLA and 40 CFR Part 312, if such parties follow the 
procedures provided in the ASTM E1527-13 ``Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site Assessment 
Process.'' EPA made this determination based upon the Agency's finding 
that the ASTM E1527-13 standard is compliant with the All Appropriate 
Inquiries Rule. Therefore, parties conducting all appropriate inquiries 
may use the procedures in the newly issued ASTM E1527-13 standard when 
conducting all appropriate inquiries.

III. Summary of Comments

    EPA received forty-one comments on the proposed rule published 
August 15, 2013. EPA developed a response-to-comments document and 
placed it in the docket for today's action. The comments and EPA's 
responses are summarized here. Most commenters supported the Agency's 
proposed action. Several commenters raised concerns related to the 
Agency's decision to continue to recognize a previous ASTM standard, 
ASTM E1527-05, as compliant with the All Appropriate Inquiries Rule. 
Other than recognizing the new standard, EPA did not propose, and is 
not finalizing with today's action, any amendments or changes to the 
AAI Rule. Although

[[Page 79321]]

today's action will not remove the current reference in the All 
Appropriate Inquiries Rule to the ASTM E1527-05 standard, EPA agrees 
with commenters that the revised ASTM E1527-13 standard includes 
improvements to the previous standard and its use will result in 
greater clarity for prospective purchases with regard to potential 
contamination at a property. Therefore, EPA recommends that 
environmental professionals and prospective purchasers use the ASTM 
E1527-13 standard. In the near future, EPA intends to publish a 
proposed rulemaking to remove the reference to the ASTM E1527-05 
standard in the All Appropriate Inquiries Rule. By taking such action 
the Agency's intent will be to promote the use of the current industry 
standard and reduce confusion associated with the regulatory reference 
to a standard no longer recognized as current by ASTM International and 
no longer marketed by the standards development organization as 
reflecting its current consensus-based standard.
    EPA also received comments recommending changes to the requirements 
contained in the All Appropriate Inquiries Rule, including several 
comments requesting changes to the rule's definition of environmental 
professional. In the August 15, 2013, Direct Final Rule and the 
companion Proposed Rule, EPA did not propose any changes to the 
requirements of 40 CFR Part 312 and did not request comment on the 
content of the rulemaking beyond whether the new ASTM standard could be 
recognized as compliant with the All Appropriate Inquiries Rule. 
Therefore, those comments were outside the scope of the rulemaking and 
EPA is not responding to those comments.
    Some commenters included in their comments to EPA recommendations 
for changes to the ASTM E1527-13 standard or commented on the ASTM 
process for reviewing and updating its standards. Comments critical of 
the new standard that are unrelated to whether it meets the 
requirements of the All Appropriate Inquiries Rule are outside the 
scope of this rulemaking. Commenters interested in proposing changes to 
the ASTM standard should contact ASTM International directly.

IV. Overview of Today's Action

A. What is the intent of today's Final Rule?

    In today's Final Rule, EPA is recognizing the newly issued ASTM 
E1527-13 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process,'' as compliant with the All 
Appropriate Inquiries Rule. In EPA's view, the new ASTM E1527-13 
provides an improved process for parties who choose to undertake all 
appropriate inquiries.
    The ASTM E1527-13 standard is similar to the previous ASTM E1527-05 
standard. ASTM International updated the previous standard in 
accordance with its standard protocol for the review of its standard 
practices and guides. (ASTM typically reviews and revises or re-issues 
its standards every eight years.) The changes in the standard are based 
upon expertise and experience gained by ASTM members and practitioners 
in the field since the 2005 standard was published. In EPA's view, 
these changes enhance the usefulness of the standard in identifying 
potential releases and threatened releases of hazardous substances at 
commercial and industrial properties. To facilitate an understanding of 
the differences between the updated ASTM E1527-13 Phase I Environmental 
Site Assessment Standard and the previous ASTM E1527-05 ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process,'' EPA developed, and placed in the docket for 
today's action, the document ``Summary of Updates and Revisions to ASTM 
E1527 Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process: How E1527-13 Differs from E1527-
05.''
    By taking today's action, EPA is fulfilling the intent and 
requirements of the National Technology Transfer and Advancement Act of 
1995 (NTTAA), Public Law 104-113. The NTTAA requires federal agencies 
to use voluntary consensus standards in their regulatory activities, 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. The ASTM E1527-13 is a voluntary consensus standard, and 
EPA believes it is appropriate under the NTTAA to recognize this 
standard as a means of conducting all appropriate inquiries.

B. What are the revisions to the ASTM International Phase I 
Environmental Site Assessment Standard?

    The ASTM E1527-13 standard is similar to the ASTM E1527-05 standard 
in format, process, and areas of coverage. In fact, many of the 
sections in ASTM E1527-13 are taken verbatim from ASTM E1527-05. The 
newly revised standard provides some clarifications and additional 
guidance for the environmental assessment of commercial and industrial 
properties and the determination of whether there are recognized 
environmental conditions or conditions indicative of releases or 
threatened releases of hazardous substances at a property.
    EPA believes that ASTM E1527-13 improves upon the previous standard 
and reflects the evolving best practices and level of rigor that will 
afford prospective property owners necessary and essential information 
when making property transaction decisions and meeting continuing 
obligations under the CERCLA liability protections. In particular, the 
new ASTM E1527-13 standard enhances the previous standard with regard 
to the delineation of historical releases or recognized environmental 
conditions at a property and makes important revisions to the standard 
practice to clarify that all appropriate inquires and phase I 
environmental site assessments must include, within the scope of the 
investigation, an assessment of the real or potential occurrence of 
vapor migration and vapor releases on, at, in or to the subject 
property. Additional revisions to the ASTM E1527-05 standard include:
     ASTM International updated the definition of ``Recognized 
Environmental Condition (REC).''
     ASTM International updated its definition of ``Historical 
Recognized Environmental Condition (HREC).''
     ASTM International added a definition of ``Controlled 
Recognized Environmental Condition (CREC) to the standard.''
     ASTM International added a clarification to the definition 
of ``de minimis condition.''
     ASTM International revised the definition of ``migrate/
migration'' to specifically include vapor migrations.
     ASTM International revised the standard's definition of 
``release'' to clarify that the definition has the same meaning as the 
definition of release in CERCLA .
     ASTM International added additional guidance related to 
the regulatory agency file and records review requirement to provide a 
standardized framework for verifying agency information obtained from 
key databases.
    EPA views these enhancements and clarifications to the ASTM 
standard as valuable improvements and strongly encourages prospective 
purchasers of real property to use the updated ASTM E1527-13 standard 
when conducting all appropriate inquiries. Several of the more 
significant changes are discussed briefly below.
    In the case of vapor releases, or the potential presence or 
migration of vapors associated with hazardous

[[Page 79322]]

substances or petroleum products, EPA notes that both the All 
Appropriate Inquiries Rule and the ASTM E1527-05 standard already call 
for the identification of potential vapor releases or vapor migration 
at a property, to the extent they are indicative of a release or 
threatened release of hazardous substances. The All Appropriate 
Inquiries Rule is designed to identify conditions indicative of 
releases and threatened releases of hazardous substances on, at, in, or 
to the subject property. 40 CFR 312.1(c)(2). In the case of the ASTM 
E1527-05 standard, users and environmental professionals are required 
to identify recognized environmental conditions that include the 
presence or likely presence of hazardous substances or petroleum 
products under conditions that indicate an existing release, a past 
release, or a material threat of a release. Neither the All Appropriate 
Inquiries Rule nor the ASTM E 1527-05 standard excludes the 
identification of vapor releases as a possible type of release. 
However, some users of the ASTM E1527-05 standard and some who 
submitted comments in response to EPA's August 15, 2013, proposed rule 
raised concerns that potential vapor releases on, at, in or to a 
property are often not considered or may be overlooked by many 
practitioners when conducting all appropriate inquiries. EPA wishes to 
be clear that, in its view, vapor migration has always been a relevant 
potential source of release or threatened release that, depending on 
site-specific conditions, may warrant identification when conducting 
all appropriate inquiries. EPA applauds the revisions made by ASTM 
International to the updated E1527-13 standard regarding vapor 
migration. EPA anticipates that practitioners properly conducting all 
appropriate inquiries will consider all conditions indicative of 
releases and threatened releases of hazardous substances and that the 
revised standard will help reduce previous confusion on how to conduct 
a thorough all appropriate inquiries investigation.
    ASTM International also revised the definition of ``historical 
recognized environmental condition'' (HREC). The revised definition 
clarifies that the scope and application of a HREC is limited to only 
past releases that have been addressed to a degree allowing for 
unrestricted use of the property. In addition, the revised standard 
includes a new term ``Controlled Recognized Environmental Condition'' 
(CREC) that is defined as past releases that have been addressed but 
allow contamination to remain in place subject to the implementation of 
required controls. The result of these two clarifications will have the 
effect of providing prospective purchasers with better information 
regarding the nature of historic releases at a property and provide 
prospective purchasers with a better basis for making informed 
decisions regarding potential future uses of a property. EPA notes that 
these clarifications and the improved level of information that may 
result due to the implementation of the revised standard will result in 
enhanced information on potential contamination for prospective 
purchasers. Therefore, EPA anticipates that prospective purchasers 
looking to claim protection from CERCLA liability will prefer this 
additional clarity and will request that environmental professionals 
use the ASTM E1527-13 standard when conducting all appropriate 
inquiries investigations. EPA applauds the additional rigor and clarity 
provided in ASTM E1527-13 standard, and the Agency recommends that 
prospective property owners and environmental professionals use the 
updated standard.
    Other revisions to the ASTM E1527-05 standard include additional 
guidance related to the regulatory agency file and records review 
requirements. The ASTM E1527-13 standard provides a standardized 
framework for verifying agency information obtained from key databases. 
This additional guidance, and added framework for file and record 
reviews, clarifies that an environmental professional should make 
efforts to review and document the validity of information found from 
searches of agency databases. Such an inquiry will generally enhance 
the quality of reports and level of confidence that users, or 
prospective property owners, can place on site assessment results.
    In EPA's view, all of the clarifications and revisions listed above 
represent enhancements to the ASTM E1527-05 standard. EPA anticipates 
that prospective purchasers and environmental professionals will 
embrace the increased level of rigor provided by the revisions and will 
adopt the ASTM E1527-13 standard. EPA recommends that the ASTM E1527-13 
standard be used to conduct all appropriate inquiries investigations 
and Phase I Environmental Site Assessments. EPA anticipates that those 
conducting or relying on an all appropriate inquiries investigation 
will generally adjust to using the updated standard, particularly in 
light of the fact that ASTM International will label the ASTM E1527-05 
Standard a historical standard and establish that the revised standard 
is the only standard reflecting the current consensus of the 
responsible ASTM International technical committee. Given that the 
revised ASTM E1527-13 standard is now available from ASTM 
International, and given that ASTM International established that the 
ASTM E1527-13 standard is the only standard that reflects the consensus 
of its technical committee, EPA intends to publish a proposed rule to 
remove the current reference in the AAI Rule to the historic standard. 
Such action will remove any confusion prompted by the regulatory 
reference to a standard that does not correspond to ASTM 
International's consensus practice. Should EPA determine in the future 
that the enhanced standards and practices contained in the ASTM E1527-
13 standard are not being widely adopted, EPA may examine the need to 
further modify the All Appropriate Inquiries Rule (40 CFR part 312) to 
explicitly require the types of enhanced activities provided for in the 
updated ASTM E1527-13 standard.

C. What is the effective date of this rule?

    This rule is effective as of the date of its publication in the 
Federal Register. There is good cause under Section 553 of the 
Administrative Procedure Act (APA) for this revision to become 
effective immediately. Section 553(d)(3) of the APA allows an effective 
date less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' 5 U.S.C. 
553(d)(3). The purpose of the 30-day waiting period prescribed in APA 
section 553(d)(3) is to give affected parties a reasonable time to 
adjust their behavior and prepare before the final rule takes effect. 
This rule, however, does not create any new regulatory requirements or 
take other action for which affected parties would need time to prepare 
before the rule takes effect. Rather, this action merely offers parties 
the option of using an additional ASTM International standard to 
conduct all appropriate inquiries. Today's rule does not require that 
any party use this standard. For these reasons, there is good cause 
under the APA for this revision to become effective on the date of 
publication of this action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under 
Executive Order (EO) 12866, titled ``Regulatory Planning and Review'' 
(58 FR 51735

[[Page 79323]]

(October 4, 1993)), and is therefore not subject to review under 
Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). The current regulation does not 
have an information collection burden and today's action only change to 
the regulation is to allow for the use of an additional standard.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis for any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute, unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small business, small 
organizations, and small governmental jurisdictions.
    Today's action does not change the current regulatory status quo 
and does not impose any regulatory requirements. After considering the 
economic impacts of today's final rule on small entities, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. This action merely allows for 
the use of a voluntary consensus standard. This action allows for the 
newly recognized standard to be used by any entity. The action imposes 
no new regulatory requirements and will result in no additional burden 
to any entity. Therefore, this action is not subject to the 
requirements of sections 202 or 205 of UMRA.
    As stated above, this rule is also not subject to the requirements 
of section 203 of UMRA because it contains no new regulatory 
requirements that might significantly or uniquely affect small 
governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. Today's action 
does not substantially change the current regulation, it merely allows 
for the use of an additional voluntary consensus standard. It will not 
have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in EO 13132. Thus, EO 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in EO 
13175 (65 FR 67249 (November 9, 2000)). Today's action does not change 
any current regulatory requirements and therefore does not impose any 
impacts upon tribal entities. Thus, EO 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to EO 13211 (66 FR 28355 (May 22, 
2001)), because it is not a significant regulatory action under EO 
12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action involves technical standards. Therefore, the 
requirements of section 12(d) of the NTTAA (15 U.S.C. 272) apply. The 
NTTAA was signed into law on March 7, 1996 and, among other things, 
directs the National Institute of Standards and Technology (NIST) to 
bring together federal agencies as well as state and local governments 
to achieve greater reliance on voluntary standards and decreased 
dependence on government developed standards. It states that use of 
such standards, whenever practicable and appropriate, is intended to 
achieve the following goals: (a) Eliminate the cost to the government 
of developing its own standards and decrease the cost of goods procured 
and the burden of complying with agency regulation; (b) provide 
incentives and opportunities to establish standards that serve national 
needs; (c) encourage long-term growth for U.S. enterprises and promote 
efficiency and economic competition through harmonization of standards; 
and (d) further the policy of reliance upon the private sector to 
supply Government needs for goods and services. The Act requires that 
federal agencies adopt private sector standards, particularly those 
developed by standards developing organizations (SDOs), wherever 
possible in lieu of creating proprietary, non-consensus standards.
    Today's action complies with the NTTAA as it allows for persons 
conducting all appropriate inquiries to use the procedures included in 
the use of the ASTM International standard known as Standard E1527-13 
and entitled ``Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process to comply with the All 
Appropriate Inquiries Rule.''

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or

[[Page 79324]]

environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. Today's action does not change any regulatory requirements 
or impose any new requirements.

K. Congressional Review Act

    The Congressional Review Act, as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, generally provides that 
before a rule may take effect, the agency promulgating the rule must 
submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is 
effective on December 30, 2013.

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

    Dated: December 19, 2013.
Mathy Stanislaus,
Assistant Administrator.
    For the reasons set out in the preamble, title 40 chapter I of the 
code of Federal Regulations is amended as follows:

PART 312--[AMENDED]

0
1. The authority citation for part 312 continues to read as follows:

    Authority:  Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 
9601(35)(B).

Subpart B--Definitions and References

0
2. Section 312.11 is amended by adding paragraph (c) to read as 
follows:


Sec.  312.11  References.

* * * * *
    (c) The procedures of ASTM International Standard E1527-13 entitled 
``Standard Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process.'' This standard is available 
from ASTM International at www.astm.org, 1-610-832-9585.

[FR Doc. 2013-31112 Filed 12-27-13; 8:45 am]
BILLING CODE 6560-50-P

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