Standards and Practices for All Appropriate Inquiries, 76578-76581 [2022-27044]
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Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 / Rules and Regulations
[Revise the heading ‘‘8.0 Mailing List
Services’’ to read as follows:]
8.0
Address Management System
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[Replace current section 8.0 with new
text to read as follows:]
8.0
Address Management System
8.1 Address Management System
Products and Fees
For Address Management System
(AMS) products and fees, see Notice
123—Price List.
8.1.2 Carrier Route Information
System
The official city delivery scheme,
called the Carrier Route Information
System, is available to mailers.
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8.0
Preparing Pallets
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Pallet Presort and Labeling
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8.2.3 Procedure
Election boards or voter registration
commissions using permanent
registration may obtain residential
change-of-address information from
Forms 3575:
a. An authorized official of the board
or commission must sign and submit to
the manager, address management
systems (district), a written request that
lists the Post Offices for which changeof-address information is desired.
b. If the request is approved, an
agreement must be obtained from and
signed by an authorized official of the
board or commission detailing the terms
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[Revise the text of 8.10.3e to read as
follows]
e. SCF, required, permitted for
bundles, sacks, and trays. Pallet may
contain carrier route, automation price,
and/or Presorted price mail for the 3digit ZIP Code groups in L005, or L051
for Parcel Select Lightweight sacks.
Mailers may, at their option, place
AADC trays on SCF pallets when the
tray‘s ‘‘label to’’ 3-digit ZIP Code (from
L801) is within that SCF’s service area.
Mailers may also, at their option, place
mixed ADC or mixed AADC trays,
labeled per L010, on an SCF pallet
entered at the SCF facility responsible
for the processing of mixed ADC or
mixed AADC trays for that NDC/ASF
facility. The SCF Pallet discount applies
to 3-Digit, 5-Digit, Carrier Route, High
Density, High Density Plus, Saturation
(including EDDM—Not Retail) USPS
Marketing Mail flat shaped pieces on a
SCF pallet entered at an Origin (None),
DNDC, or DSCF entry. SCF pallet
discount does not apply to Marketing
Mail letters or parcels. Labeling: * * *
Notice 123 (Price List)
[Revise prices as applicable.]
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We will publish an appropriate
amendment to 39 CFR part 111 to reflect
these changes.
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Sarah Sullivan,
Attorney, Ethics & Legal Compliance.
[FR Doc. 2022–26973 Filed 12–14–22; 8:45 am]
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40 CFR Part 312
[EPA–HQ–OLEM–2021–0946; FRL–9334.1–
01–OLEM]
Standards and Practices for All
Appropriate Inquiries
Environmental Protection
Agency (EPA).
ACTION: Final rule.
EPA is taking final action to
amend the Standards and Practices for
All Appropriate Inquiries to reference a
standard practice recently made
available by ASTM International, a
widely recognized standards developing
organization. Specifically, this final rule
amends the All Appropriate Inquiries
Rule (AAI rule) to reference ASTM
International’s E1527–21 ‘‘Standard
Practice for Environmental Site
Assessments: Phase I Environmental
Site Assessment Process’’ and allow for
its use to satisfy the requirements for
conducting all appropriate inquiries
under the Comprehensive
Environmental Response, Compensation
and Liability Act, and to remove after
one year recognition of the previous
version of that standard, ASTM E1527–
13, as compliant with the AAI rule.
DATES: This rule is effective on February
13, 2023.
FOR FURTHER INFORMATION CONTACT: For
more detailed information on specific
aspects of this rule, contact Patricia
Overmeyer, Office of Brownfields and
Land Revitalization (5105T), U.S.
Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington,
DC 20460–0002, 202–566–2774, or
Overmeyer.patricia@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
SUMMARY:
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8.2.2 Fee Assessment
The fee for address changes provided
to election boards and voter registration
commissions is assessed for each Form
3575 submitted. The fee is collected on
a per card basis regardless of the
number of changes made on the card
and whether the change concerns a
person on the board’s or commission’s
list of registrants. Instead of the actual
forms, the USPS may supply facsimiles
of the forms or copies of the information
they contain at no additional fee.
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AGENCY:
8.10.3 USPS Marketing Mail or Parcel
Select Lightweight—Bundles, Sacks, or
Trays
8.2.1 General
Election boards or voter registration
commissions may use the ‘‘Return
Service Requested’’ endorsement and/or
the National Change of Address Linkage
System (NCOALink) to maintain current
address lists.
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705 Advanced Preparation and
Special Postage Payment Systems
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8.2 Election Boards and Voter
Registration Commissions
15:59 Dec 14, 2022
ENVIRONMENTAL PROTECTION
AGENCY
8.10
8.1.3 Address Changes to Election
Boards and Voter Registration
Commissions
For the designated fee, the USPS
provides address changes to election
boards and voter registration
commissions.
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under which the change-of-address
information is to be released.
c. The board or commission receives
the requested information from the
postmasters of the listed Post Offices
and pays those postmasters the
applicable fees.
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Table of Contents
I. Does this action apply to me?
II. Statutory Authority
III. Background
IV. Summary of Comments
V. What action is the EPA taking?
VI. Statutory and Executive Order Reviews
I. Does this action apply to me?
This action offers certain parties the
option of using an available industry
standard to conduct all appropriate
inquiries. Parties purchasing potentially
contaminated properties may use the
ASTM E1527–21 standard practice to
comply with the all appropriate
inquiries requirements of the
Comprehensive Environmental
Response, Compensation, and Liability
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Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 / Rules and Regulations
Act (CERCLA). This rule does not
require any entity to use this standard.
Any party who wants to claim
protection from liability under one of
CERCLA’s landowner liability
protections may follow the regulatory
requirements of the All Appropriate
Inquiries Rule at 40 CFR part 312, use
the ASTM E1527–13 ‘‘Standard Practice
for Phase I Environmental Site
Assessments’’ for up to one year after
this rule becomes effective, use the
ASTM E2247–16 ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process for Forestland or Rural
Property,’’ or use the standard
recognized in this final rule, the ASTM
E1527–21 standard, to comply with the
all appropriate inquiries provision of
CERCLA.
Entities potentially affected by this
action, or who may choose to use the
newly referenced ASTM standard to
perform all appropriate inquiries,
include public and private parties who,
as bona fide prospective purchasers,
contiguous property owners, or
innocent landowners, are purchasing
potentially contaminated properties and
wish to establish a limitation on
CERCLA liability in conjunction with
the property purchase. In addition, any
entity conducting a site characterization
or assessment on a property with
funding from a brownfields grant
awarded under CERCLA Section
104(k)(2)(B)(ii) may be affected by this
action. This includes State, local, and
Tribal governments that receive
brownfields site assessment grants. A
summary of the potentially affected
industry sectors (by North American
Industry Classification System (NAICS)
codes) is displayed in the table below.
Industry category
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Real Estate ..................................
Insurance .....................................
Banking/Real Estate Credit ..........
Environmental Consulting Services.
State, Local and Tribal Government.
Federal Government ....................
NAICS code
531.
52412.
522292.
54162.
926110, 925120.
925120, 921190,
924120.
The list of potentially affected entities
in the above table may not be
exhaustive. Our aim is to provide a
guide for readers regarding those
entities that EPA is aware potentially
could be affected by this action.
However, this action may affect other
entities not listed in the table. If you
have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the preceding section entitled
FOR FURTHER INFORMATION CONTACT.
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II. Statutory Authority
This rule amends the All Appropriate
Inquiries Rule setting Federal standards
for the conduct of ‘‘all appropriate
inquiries’’ at 40 CFR part 312. The All
Appropriate Inquiries Rule sets forth
standards and practices necessary for
fulfilling the requirements of CERCLA
section 101(35)(B) to obtain CERCLA
liability protection and for conducting
site characterizations and assessments
with the use of brownfields grants per
CERCLA section 104(k)(2)(B)(ii).
III. Background
On January 11, 2002, President Bush
signed the Small Business Liability
Relief and Brownfields Revitalization
Act (‘‘the Brownfields Amendments’’).
In general, the Brownfields
Amendments to CERCLA provide funds
to assess and clean up brownfield sites;
clarify existing and establish new
CERCLA liability provisions related to
certain types of owners of contaminated
properties; and provide funding to
establish or enhance State and Tribal
cleanup programs. The Brownfields
Amendments revised some of the
provisions of CERCLA Section 101(35)
and limited liability under Section 107
for bona fide prospective purchasers
and contiguous property owners, in
addition to clarifying the requirements
necessary to establish the innocent
landowner liability protection under
CERCLA Sections 107 and 101(35). The
Brownfields Amendments clarified the
requirement that parties purchasing
potentially contaminated property
undertake ‘‘all appropriate inquiries’’
into prior ownership and use of
property before purchasing the property
to qualify for protection from CERCLA
liability.
The Brownfields Amendments of
2002 required EPA to develop
regulations establishing standards and
practices for how to conduct all
appropriate inquiries. EPA promulgated
regulations that set standards and
practices for all appropriate inquiries on
November 1, 2005 (70 FR 66070). In the
final regulation, EPA referenced, and
recognized as compliant with the rule,
the ASTM E1527–05 ‘‘Standard Practice
for Environmental Site Assessments:
Phase I Environmental Site Assessment
Process.’’ In December 2008, EPA
amended the All Appropriate Inquiries
Rule to recognize another ASTM
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.’’ Both standards, the ASTM
E1527–05 and the ASTM E2247–08,
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were subsequently revised by ASTM
International. EPA referenced the
revised ASTM E1527–13 standard on
August 15, 2013 (78 FR 49690), and
referenced the revised ASTM E2247–16
Standard on September 15, 2017 (82 FR
43310), as compliant with the All
Appropriate Inquiries Rule. Currently,
the All Appropriate Inquiries Rule (40
CFR part 312) allows for the use of the
ASTM E1527–13 standard or the ASTM
E2247–16 standard to conduct all
appropriate inquiries, in lieu of
following the requirements included in
the rule. Once this action is final, the
All Appropriate Inquiries Rule will
allow for the use of the ASTM E1527–
21 standard and will phase out use of
the ASTM E1527–13 standard.
Recently, ASTM International
published a revised standard for
conducting Phase I environmental site
assessments. This standard, ASTM
E1527–21 ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process,’’ was reviewed by EPA, and
determined by EPA to be compliant
with the requirements of the All
Appropriate Inquiries Rule.
On March 14, 2022, EPA published a
direct final rule (87 FR 14174) to amend
the All Appropriate Inquiries Rule to
reference ASTM E1527–21 ‘‘Standard
Practice for Environmental Site
Assessments: Phase I Environmental
Site Assessment Process,’’ and allow for
its use to satisfy the requirements of the
All Appropriate Inquiries Rule. A
companion proposed rule, also
published on March 14, 2022, invited
comment on the direct final rule and
stated that if EPA received adverse
comment on the proposal to reference
the ASTM E1527–21 standard, the
Agency would withdraw the direct final
rule. EPA received adverse comments
on that action and published a
notification of withdrawal of the direct
final rule on May 2, 2022 (87 FR 25572).
In this document, EPA is finalizing the
amendment to the All Appropriate
Inquiries Rule referencing the ASTM
E1527–21 standard practice and
addressing the comments received in
response to the March 14, 2022
proposed rule.
IV. Summary of Comments
EPA received thirteen comments on
the proposed rule published March 14,
2022. EPA developed a Response to
Comments document and placed it in
the docket for this action. The
comments and EPA’s responses are
summarized here. Most commenters
supported the Agency’s proposed action
to amend the All Appropriate Inquiries
Rule to add a reference to ASTM
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Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 / Rules and Regulations
International’s E1527–21 ‘‘Standard
Practice for Environmental Site
Assessments: Phase I Environmental
Site Assessment Process’’ and allow for
its use to satisfy the requirements for
conducting all appropriate inquiries
under the Comprehensive
Environmental Response, Compensation
and Liability Act. Several commenters
raised concerns related to the Agency’s
decision to continue to recognize a
previous ASTM standard, ASTM
E1527–13, as compliant with the All
Appropriate Inquiries Rule.
Commenters pointed out that the
previous version of the ASTM standard,
ASTM E1527–13, will sunset and will
no longer be available from ASTM
International. Commenters pointed out
that the revised standard, ASTM E1527–
21, was developed with input from
industry professionals, users, and
regulators and its updated provisions
offer positive benefits to stakeholders. In
addition, commenters asserted that the
updated standard now represents ‘‘good
commercial and customary business
practice,’’ and therefore should replace
the current ASTM E1527–13 Phase I
Environmental Site Assessment
standard referenced by EPA, rather than
merely being added as an additionally
referenced standard. Other commenters
stated that EPA’s continued acceptance
of the 2013 version of the ASTM E1527
standard will create confusion within
the marketplace because users will need
to unnecessarily compare the costs and
benefits of the use of the two standards
when receiving multiple bids from
potential contractors before
environmental site assessment. EPA
recognizes the commenters’ concerns.
In response to concerns raised by
commenters regarding the potential
confusion associated with the Agency’s
recognition of a historical standard no
longer recognized by ASTM
International as current, or no longer
reflecting its current consensus-based,
or customary business standard, the
Agency will remove its reference to the
ASTM E1527–13 Standard Practice for
Environmental Site Assessments. To
provide parties with an adequate
opportunity to complete AAI
investigations that may be on-going and
to allow all parties sufficient notice to
become familiar with the updated
industry standard (ASTM E1527–21),
the Agency is providing for a sunset
period for the removal of its recognition
of the historic standard (ASTM E1527–
13) as compliant with all appropriate
inquiries. The sunset period for removal
of the reference to the ASTM E1527–13
Standard Practice for Environmental
Site Assessments is one year from
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publication of this final rule. A Phase 1
Environmental Site Assessment
completed before that date using ASTM
E1527–13 will be recognized as
compliant with the All Appropriate
Inquiries Rule.
One commenter requested that EPA
provide a formal notice and comment
opportunity on the ASTM E1527–21
Phase I Environmental Site Assessment
Process. The commenter also stated that
the reference to ‘‘emerging
contaminants’’ in the ASTM E1527–21
standard is an ‘‘out of scope’’
consideration that may lead to
additional potential CERCLA liability
prematurely for landowners and
potential buyers. In the March 14 direct
final rule and the accompanying
proposed rule, EPA clearly stated that it
was not requesting comment on the
ASTM standard. The ASTM standard is
not an EPA regulation, and its use is not
required to comply with the All
Appropriate Inquiries Rule or any other
EPA regulations.
Industry standards may include
elements that are not within the scope
of the All Appropriate Inquiries Rule.
Use of the ASTM E1527–21 standard is
not required for compliance with the All
Appropriate Inquiries Rule. Therefore,
EPA does not consider these additional
elements as a reason to avoid
recognition of the revised E1527–21
standard as compliant with the All
Appropriate Inquiries Rule.
Two commenters submitted requests
for modifications to the ASTM E1527–
21 standard. One commenter requested
changes to the standard’s requirements
for environmental lien searches and to
the definitions of ‘‘recognized
environmental conditions.’’ Another
commenter requested a modification to
the definition of ‘‘property use
limitation’’ as it is used in the ASTM
E1527–21 standard. The ASTM E1527–
21 is not an EPA standard and the
Agency stated in the proposed rule that
it was not requesting comments on the
ASTM standard. Requests to modify the
ASTM standard should be directed to
ASTM. Use of the ASTM standard is not
required to comply with the All
Appropriate Inquiries Rule.
V. What action is the EPA taking?
This rule amends the All Appropriate
Inquiries Rule to allow for the use of the
recently revised ASTM International
standard ASTM E1527–21 to satisfy the
all appropriate inquiries requirements
under CERCLA for establishing the bona
fide prospective purchaser, contiguous
property owner, and innocent
landowner liability protections.
With this action, parties seeking
liability relief under CERCLA’s
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landowner liability protections, as well
as recipients of brownfields grants for
conducting site assessments, will be
considered in compliance with the
requirements for all appropriate
inquiries, if such parties comply with
the procedures provided in the ASTM
E1527–21 ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process.’’
The Agency notes that this action
does not require any party to use the
ASTM E1527–21 standard. Any party
conducting all appropriate inquiries to
comply with CERCLA’s bona fide
prospective purchaser, contiguous
property owner, and innocent
landowner liability protections, or a
brownfields site assessment under
CERCLA Section 104(k), may follow the
provisions of the All Appropriate
Inquiries Rule at 40 CFR part 312. This
action merely allows for the option of
using ASTM International’s E1527–21
‘‘Standard Practice for Environmental
Site Assessments: Phase I
Environmental Site Assessment
Process’’ by those parties purchasing
potentially contaminated properties in
lieu of following the specific
requirements of the All Appropriate
Inquiries Rule.
The Agency notes that there are no
legally significant differences between
the regulatory requirements and the
ASTM E1527–21 standard. To facilitate
an understanding of the slight
differences between the All Appropriate
Inquiries Rule and the revised ASTM
E1527–21 ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process,’’ as well as the applicability of
the E1527–21 standard to certain types
of properties, EPA developed, and
placed in the docket for this action, the
document ‘‘Comparison of All
Appropriate Inquiries Regulation, the
ASTM E1527–13 Phase I Environmental
Site Assessment Process, and ASTM
E1527–21 Phase I Environmental Site
Assessment Process.’’ The document
also provides a comparison of the two
ASTM E1527 standards.
This action also includes the removal
of the current reference in the All
Appropriate Inquiries Rule to the ASTM
E1527–13 Standard Practice for
Environmental Site Assessments as
compliant with all appropriate
inquiries. The removal of the reference
to the historic standard as compliant
with the all appropriate inquiries
requirements will take effect one year
following publication of this final rule.
This action includes no changes to the
All Appropriate Inquiries Rule other
than to add a reference to the new
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Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 / Rules and Regulations
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ASTM E1527–21 standard and remove
the current reference to the historic
ASTM E1527–13 standard as compliant
with all appropriate inquiries. With this
final rule, EPA is recognizing the ASTM
E1527–21 ‘‘Standard Practice for
Environmental Site Assessments: Phase
I Environmental Site Assessment
Process’’ as compliant with the all
appropriate inquiries requirements. The
reference to the ASTM E1527–13
standard as compliant with the all
appropriate inquiries requirements will
be removed from the reference section
of the AAI (40 CFR 312.11) one year
following publication of this final rule.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993) and Executive
Order 13563 (76 FR 3821, January 21,
2011), this action is not a ‘‘significant
regulatory action’’ and is therefore not
subject to OMB review. This action
merely amends the All Appropriate
Inquiries Rule to reference ASTM
International’s E1527–21 ‘‘Standard
Practice for Environmental Site
Assessments: Phase I Environmental
Site Assessment Process’’ and allow for
its use to satisfy the requirements for
conducting all appropriate inquiries
under CERCLA. This action does not
impose any requirements on any entity,
including small entities. Therefore,
pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), after
considering the economic impacts of
this action on small entities, I certify
that this action will not have a
significant economic impact on a
substantial number of small entities.
This action does not contain any
unfunded mandates or significantly or
uniquely affect small governments as
described in sections 202 and 205 of the
Unfunded Mandates Reform Act of 1999
(UMRA) (Pub. L. 104–4). This action
does not create new binding legal
requirements that substantially and
directly affect Tribes under Executive
Order 13175 (63 FR 67249, November 9,
2000). This action does not have
significant federalism implications
under Executive Order 13132 (64 FR
43255, August 10, 1999). Because this
action is exempt from review under
Executive Order 12866, this rule is not
subject to Executive Order 13211,
entitled ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001), or Executive
Order 13045, entitled ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997). This action does not
contain any information collections
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subject to OMB approval under the
Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., nor does
it require any special considerations
under Executive Order 12898, entitled
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, February 16,
1994).
This action does involve technical
standards. Therefore, the requirements
of section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (Pub. L. 104–113; 15 U.S.C.
272) (NTTAA) apply. The NTTAA was
signed into law on March 7, 1996, and,
among other things, directs the National
Institute of Standards and Technology
(NIST) to bring together Federal
agencies as well as state and local
governments to achieve greater reliance
on voluntary consensus standards and
decrease dependence on in-house
standards. It states that use of such
standards, whenever practicable and
appropriate, is intended to achieve the
following goals: (a) Eliminate the cost to
the government of developing its own
standards and decrease the cost of goods
procured and the burden of complying
with agency regulations; (b) provide
incentives and opportunities to
establish standards that serve national
needs; (c) encourage long-term growth
for U.S. enterprises and promote
efficiency and economic competition
through harmonization of standards;
and (d) further the policy of reliance
upon the private sector to supply
government needs for goods and
services. The Act requires that Federal
agencies adopt private sector standards,
particularly those developed by
standards developing organizations
(SDOs), whenever possible in lieu of
creating proprietary, non-consensus
standards.
This action is compliant with the
spirit and requirements of the NTTAA.
This action allows for the use of the
ASTM International standard known as
Standard E1527–21 and entitled
‘‘Standard Practice for Environmental
Site Assessments: Phase I
Environmental Site Assessment
Process.’’ By taking this action, EPA is
fulfilling the intent and requirements of
NTTAA.
The Congressional Review Act, 5
U.S.C. 801 et seq., generally provides
that before certain actions may take
effect, the agency promulgating the
action must submit a report, which
includes a copy of the action, to each
House of the Congress and to the
Comptroller General of the United
States. EPA submitted a report
containing this rule and other required
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information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This action is not
a ‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 312
Administrative practice and
procedure, Hazardous substances.
Barry N. Breen,
Acting Assistant Administrator, Office of
Land and Emergency Management.
For the reasons set out in the
preamble, 40 CFR part 312 is amended
as follows:
PART 312—INNOCENT
LANDOWNERS, STANDARDS FOR
CONDUCTING ALL APPROPRIATE
INQUIRIES
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:
■ a. Redesignating paragraphs (a) and
(b) as paragraphs (b) and (c),
respectively;
■ b. Adding a new paragraph (a); and
■ c. Revising newly redesignated
paragraph (c).
The addition and revision read as
follows:
■
§ 312.11
References.
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(a) The procedures of ASTM
International Standard E1527–21
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.
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(c) Until February 13, 2024, 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. 2022–27044 Filed 12–14–22; 8:45 am]
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]]>Agencies
[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Rules and Regulations]
[Pages 76578-76581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27044]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 312
[EPA-HQ-OLEM-2021-0946; FRL-9334.1-01-OLEM]
Standards and Practices for All Appropriate Inquiries
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to amend the Standards and
Practices for All Appropriate Inquiries to reference a standard
practice recently made available by ASTM International, a widely
recognized standards developing organization. Specifically, this final
rule amends the All Appropriate Inquiries Rule (AAI rule) to reference
ASTM International's E1527-21 ``Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment Process'' and
allow for its use to satisfy the requirements for conducting all
appropriate inquiries under the Comprehensive Environmental Response,
Compensation and Liability Act, and to remove after one year
recognition of the previous version of that standard, ASTM E1527-13, as
compliant with the AAI rule.
DATES: This rule is effective on February 13, 2023.
FOR FURTHER INFORMATION CONTACT: For more detailed information on
specific aspects of this rule, contact Patricia Overmeyer, Office of
Brownfields and Land Revitalization (5105T), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460-
0002, 202-566-2774, or [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Does this action apply to me?
II. Statutory Authority
III. Background
IV. Summary of Comments
V. What action is the EPA taking?
VI. Statutory and Executive Order Reviews
I. Does this action apply to me?
This action offers certain parties the option of using an available
industry standard to conduct all appropriate inquiries. Parties
purchasing potentially contaminated properties may use the ASTM E1527-
21 standard practice to comply with the all appropriate inquiries
requirements of the Comprehensive Environmental Response, Compensation,
and Liability
[[Page 76579]]
Act (CERCLA). This rule does not require any entity to use this
standard. Any party who wants to claim protection from liability under
one of CERCLA's landowner liability protections may follow the
regulatory requirements of the All Appropriate Inquiries Rule at 40 CFR
part 312, use the ASTM E1527-13 ``Standard Practice for Phase I
Environmental Site Assessments'' for up to one year after this rule
becomes effective, use the ASTM E2247-16 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process for Forestland or Rural Property,'' or use the standard
recognized in this final rule, the ASTM E1527-21 standard, to comply
with the all appropriate inquiries provision of CERCLA.
Entities potentially affected by this action, or who may choose to
use the newly referenced ASTM standard to perform all appropriate
inquiries, include public and private parties who, as bona fide
prospective purchasers, contiguous property owners, or innocent
landowners, are purchasing potentially contaminated properties and wish
to establish a limitation on CERCLA liability in conjunction with the
property purchase. In addition, any entity conducting a site
characterization or assessment on a property with funding from a
brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be
affected by this action. This includes State, local, and Tribal
governments that receive brownfields site assessment grants. A summary
of the potentially affected industry sectors (by North American
Industry Classification System (NAICS) codes) is displayed in the table
below.
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Industry category NAICS code
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Real Estate............................... 531.
Insurance................................. 52412.
Banking/Real Estate Credit................ 522292.
Environmental Consulting Services......... 54162.
State, Local and Tribal Government........ 926110, 925120.
Federal Government........................ 925120, 921190, 924120.
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The list of potentially affected entities in the above table may
not be exhaustive. Our aim is to provide a guide for readers regarding
those entities that EPA is aware potentially could be affected by this
action. However, this action may affect other entities not listed in
the table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
II. Statutory Authority
This rule amends the All Appropriate Inquiries Rule setting Federal
standards for the conduct of ``all appropriate inquiries'' at 40 CFR
part 312. The All Appropriate Inquiries Rule sets forth standards and
practices necessary for fulfilling the requirements of CERCLA section
101(35)(B) to obtain CERCLA liability protection and for conducting
site characterizations and assessments with the use of brownfields
grants per CERCLA section 104(k)(2)(B)(ii).
III. Background
On January 11, 2002, President Bush signed the Small Business
Liability Relief and Brownfields Revitalization Act (``the Brownfields
Amendments''). In general, the Brownfields Amendments to CERCLA provide
funds to assess and clean up brownfield sites; clarify existing and
establish new CERCLA liability provisions related to certain types of
owners of contaminated properties; and provide funding to establish or
enhance State and Tribal cleanup programs. The Brownfields Amendments
revised some of the provisions of CERCLA Section 101(35) and limited
liability under Section 107 for bona fide prospective purchasers and
contiguous property owners, in addition to clarifying the requirements
necessary to establish the innocent landowner liability protection
under CERCLA Sections 107 and 101(35). The Brownfields Amendments
clarified the requirement that parties purchasing potentially
contaminated property undertake ``all appropriate inquiries'' into
prior ownership and use of property before purchasing the property to
qualify for protection from CERCLA liability.
The Brownfields Amendments of 2002 required EPA to develop
regulations establishing standards and practices for how to conduct all
appropriate inquiries. EPA promulgated regulations that set standards
and practices for all appropriate inquiries on November 1, 2005 (70 FR
66070). In the final regulation, EPA referenced, and recognized as
compliant with the rule, the ASTM E1527-05 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process.'' In December 2008, EPA amended the All Appropriate Inquiries
Rule to recognize another ASTM 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.'' Both standards, the ASTM E1527-05 and the ASTM E2247-08,
were subsequently revised by ASTM International. EPA referenced the
revised ASTM E1527-13 standard on August 15, 2013 (78 FR 49690), and
referenced the revised ASTM E2247-16 Standard on September 15, 2017 (82
FR 43310), as compliant with the All Appropriate Inquiries Rule.
Currently, the All Appropriate Inquiries Rule (40 CFR part 312) allows
for the use of the ASTM E1527-13 standard or the ASTM E2247-16 standard
to conduct all appropriate inquiries, in lieu of following the
requirements included in the rule. Once this action is final, the All
Appropriate Inquiries Rule will allow for the use of the ASTM E1527-21
standard and will phase out use of the ASTM E1527-13 standard.
Recently, ASTM International published a revised standard for
conducting Phase I environmental site assessments. This standard, ASTM
E1527-21 ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process,'' was reviewed by EPA, and
determined by EPA to be compliant with the requirements of the All
Appropriate Inquiries Rule.
On March 14, 2022, EPA published a direct final rule (87 FR 14174)
to amend the All Appropriate Inquiries Rule to reference ASTM E1527-21
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process,'' and allow for its use to
satisfy the requirements of the All Appropriate Inquiries Rule. A
companion proposed rule, also published on March 14, 2022, invited
comment on the direct final rule and stated that if EPA received
adverse comment on the proposal to reference the ASTM E1527-21
standard, the Agency would withdraw the direct final rule. EPA received
adverse comments on that action and published a notification of
withdrawal of the direct final rule on May 2, 2022 (87 FR 25572). In
this document, EPA is finalizing the amendment to the All Appropriate
Inquiries Rule referencing the ASTM E1527-21 standard practice and
addressing the comments received in response to the March 14, 2022
proposed rule.
IV. Summary of Comments
EPA received thirteen comments on the proposed rule published March
14, 2022. EPA developed a Response to Comments document and placed it
in the docket for this action. The comments and EPA's responses are
summarized here. Most commenters supported the Agency's proposed action
to amend the All Appropriate Inquiries Rule to add a reference to ASTM
[[Page 76580]]
International's E1527-21 ``Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process'' and allow
for its use to satisfy the requirements for conducting all appropriate
inquiries under the Comprehensive Environmental Response, Compensation
and Liability Act. Several commenters raised concerns related to the
Agency's decision to continue to recognize a previous ASTM standard,
ASTM E1527-13, as compliant with the All Appropriate Inquiries Rule.
Commenters pointed out that the previous version of the ASTM standard,
ASTM E1527-13, will sunset and will no longer be available from ASTM
International. Commenters pointed out that the revised standard, ASTM
E1527-21, was developed with input from industry professionals, users,
and regulators and its updated provisions offer positive benefits to
stakeholders. In addition, commenters asserted that the updated
standard now represents ``good commercial and customary business
practice,'' and therefore should replace the current ASTM E1527-13
Phase I Environmental Site Assessment standard referenced by EPA,
rather than merely being added as an additionally referenced standard.
Other commenters stated that EPA's continued acceptance of the 2013
version of the ASTM E1527 standard will create confusion within the
marketplace because users will need to unnecessarily compare the costs
and benefits of the use of the two standards when receiving multiple
bids from potential contractors before environmental site assessment.
EPA recognizes the commenters' concerns.
In response to concerns raised by commenters regarding the
potential confusion associated with the Agency's recognition of a
historical standard no longer recognized by ASTM International as
current, or no longer reflecting its current consensus-based, or
customary business standard, the Agency will remove its reference to
the ASTM E1527-13 Standard Practice for Environmental Site Assessments.
To provide parties with an adequate opportunity to complete AAI
investigations that may be on-going and to allow all parties sufficient
notice to become familiar with the updated industry standard (ASTM
E1527-21), the Agency is providing for a sunset period for the removal
of its recognition of the historic standard (ASTM E1527-13) as
compliant with all appropriate inquiries. The sunset period for removal
of the reference to the ASTM E1527-13 Standard Practice for
Environmental Site Assessments is one year from publication of this
final rule. A Phase 1 Environmental Site Assessment completed before
that date using ASTM E1527-13 will be recognized as compliant with the
All Appropriate Inquiries Rule.
One commenter requested that EPA provide a formal notice and
comment opportunity on the ASTM E1527-21 Phase I Environmental Site
Assessment Process. The commenter also stated that the reference to
``emerging contaminants'' in the ASTM E1527-21 standard is an ``out of
scope'' consideration that may lead to additional potential CERCLA
liability prematurely for landowners and potential buyers. In the March
14 direct final rule and the accompanying proposed rule, EPA clearly
stated that it was not requesting comment on the ASTM standard. The
ASTM standard is not an EPA regulation, and its use is not required to
comply with the All Appropriate Inquiries Rule or any other EPA
regulations.
Industry standards may include elements that are not within the
scope of the All Appropriate Inquiries Rule. Use of the ASTM E1527-21
standard is not required for compliance with the All Appropriate
Inquiries Rule. Therefore, EPA does not consider these additional
elements as a reason to avoid recognition of the revised E1527-21
standard as compliant with the All Appropriate Inquiries Rule.
Two commenters submitted requests for modifications to the ASTM
E1527-21 standard. One commenter requested changes to the standard's
requirements for environmental lien searches and to the definitions of
``recognized environmental conditions.'' Another commenter requested a
modification to the definition of ``property use limitation'' as it is
used in the ASTM E1527-21 standard. The ASTM E1527-21 is not an EPA
standard and the Agency stated in the proposed rule that it was not
requesting comments on the ASTM standard. Requests to modify the ASTM
standard should be directed to ASTM. Use of the ASTM standard is not
required to comply with the All Appropriate Inquiries Rule.
V. What action is the EPA taking?
This rule amends the All Appropriate Inquiries Rule to allow for
the use of the recently revised ASTM International standard ASTM E1527-
21 to satisfy the all appropriate inquiries requirements under CERCLA
for establishing the bona fide prospective purchaser, contiguous
property owner, and innocent landowner liability protections.
With this action, parties seeking liability relief under CERCLA's
landowner liability protections, as well as recipients of brownfields
grants for conducting site assessments, will be considered in
compliance with the requirements for all appropriate inquiries, if such
parties comply with the procedures provided in the ASTM E1527-21
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process.''
The Agency notes that this action does not require any party to use
the ASTM E1527-21 standard. Any party conducting all appropriate
inquiries to comply with CERCLA's bona fide prospective purchaser,
contiguous property owner, and innocent landowner liability
protections, or a brownfields site assessment under CERCLA Section
104(k), may follow the provisions of the All Appropriate Inquiries Rule
at 40 CFR part 312. This action merely allows for the option of using
ASTM International's E1527-21 ``Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment Process'' by
those parties purchasing potentially contaminated properties in lieu of
following the specific requirements of the All Appropriate Inquiries
Rule.
The Agency notes that there are no legally significant differences
between the regulatory requirements and the ASTM E1527-21 standard. To
facilitate an understanding of the slight differences between the All
Appropriate Inquiries Rule and the revised ASTM E1527-21 ``Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process,'' as well as the applicability of the E1527-21
standard to certain types of properties, EPA developed, and placed in
the docket for this action, the document ``Comparison of All
Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I
Environmental Site Assessment Process, and ASTM E1527-21 Phase I
Environmental Site Assessment Process.'' The document also provides a
comparison of the two ASTM E1527 standards.
This action also includes the removal of the current reference in
the All Appropriate Inquiries Rule to the ASTM E1527-13 Standard
Practice for Environmental Site Assessments as compliant with all
appropriate inquiries. The removal of the reference to the historic
standard as compliant with the all appropriate inquiries requirements
will take effect one year following publication of this final rule.
This action includes no changes to the All Appropriate Inquiries
Rule other than to add a reference to the new
[[Page 76581]]
ASTM E1527-21 standard and remove the current reference to the historic
ASTM E1527-13 standard as compliant with all appropriate inquiries.
With this final rule, EPA is recognizing the ASTM E1527-21 ``Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process'' as compliant with the all appropriate inquiries
requirements. The reference to the ASTM E1527-13 standard as compliant
with the all appropriate inquiries requirements will be removed from
the reference section of the AAI (40 CFR 312.11) one year following
publication of this final rule.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is
not a ``significant regulatory action'' and is therefore not subject to
OMB review. This action merely amends the All Appropriate Inquiries
Rule to reference ASTM International's E1527-21 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process'' and allow for its use to satisfy the requirements for
conducting all appropriate inquiries under CERCLA. This action does not
impose any requirements on any entity, including small entities.
Therefore, pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), after considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not contain any unfunded mandates or significantly or uniquely
affect small governments as described in sections 202 and 205 of the
Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). This
action does not create new binding legal requirements that
substantially and directly affect Tribes under Executive Order 13175
(63 FR 67249, November 9, 2000). This action does not have significant
federalism implications under Executive Order 13132 (64 FR 43255,
August 10, 1999). Because this action is exempt from review under
Executive Order 12866, this rule is not subject to Executive Order
13211, entitled ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22,
2001), or Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This action does not contain any information collections subject
to OMB approval under the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., nor does it require any special considerations
under Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994).
This action does involve technical standards. Therefore, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (Pub. L. 104-113; 15 U.S.C. 272) (NTTAA) apply.
The NTTAA was signed into law on March 7, 1996, and, among other
things, directs the National Institute of Standards and Technology
(NIST) to bring together Federal agencies as well as state and local
governments to achieve greater reliance on voluntary consensus
standards and decrease dependence on in-house standards. It states that
use of such standards, whenever practicable and appropriate, is
intended to achieve the following goals: (a) Eliminate the cost to the
government of developing its own standards and decrease the cost of
goods procured and the burden of complying with agency regulations; (b)
provide incentives and opportunities to establish standards that serve
national needs; (c) encourage long-term growth for U.S. enterprises and
promote efficiency and economic competition through harmonization of
standards; and (d) further the policy of reliance upon the private
sector to supply government needs for goods and services. The Act
requires that Federal agencies adopt private sector standards,
particularly those developed by standards developing organizations
(SDOs), whenever possible in lieu of creating proprietary, non-
consensus standards.
This action is compliant with the spirit and requirements of the
NTTAA. This action allows for the use of the ASTM International
standard known as Standard E1527-21 and entitled ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process.'' By taking this action, EPA is fulfilling the
intent and requirements of NTTAA.
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before certain actions may take effect, the agency
promulgating the action must submit a report, which includes a copy of
the action, to each House of the Congress and to the Comptroller
General of the United States. EPA submitted a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 312
Administrative practice and procedure, Hazardous substances.
Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency
Management.
For the reasons set out in the preamble, 40 CFR part 312 is amended
as follows:
PART 312--INNOCENT LANDOWNERS, STANDARDS FOR CONDUCTING ALL
APPROPRIATE INQUIRIES
0
1. The authority citation for part 312 continues to read as follows:
Authority: Section 101(35)(B) of CERCLA, as amended, 42 U.S.C.
9601(35)(B).
Subpart B--Definitions and References
0
2. Section 312.11 is amended by:
0
a. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c),
respectively;
0
b. Adding a new paragraph (a); and
0
c. Revising newly redesignated paragraph (c).
The addition and revision read as follows:
Sec. 312.11 References.
* * * * *
(a) The procedures of ASTM International Standard E1527-21 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.
* * * * *
(c) Until February 13, 2024, 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. 2022-27044 Filed 12-14-22; 8:45 am]
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