[Federal Register Volume 87, Number 49 (Monday, March 14, 2022)]
[Rules and Regulations]
[Pages 14174-14177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05259]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2021-0946 FRL-9334-02-OLEM]


Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct 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 direct 
final rule 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 the Comprehensive Environmental Response, Compensation 
and Liability Act.

DATES: This rule is effective on May 13, 2022, without further notice, 
unless EPA receives adverse comment by April 13, 2022. If EPA receives 
such comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-HQ-
OLEM-2021-0946] at https://www.regulations.gov. Follow the on-line 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI and multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

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. Why is the EPA using a direct final rule
II. Does this action apply to me?
III. What should I consider as I prepare my comments for the EPA?
IV. Statutory Authority
V. Background
VI. What action is the EPA taking?
VII. Statutory and Executive Order Reviews

I. Why is the EPA using a direct final rule?

    EPA is publishing this direct final rule without prior proposal 
because the Agency views this as a noncontroversial action and 
anticipates no adverse comment given that this action will provide 
flexibility for grant recipients and other entities that may benefit 
from the use of the ASTM E1527-21 standard. We believe that this action 
is reasonable and can be promulgated without consideration of public 
comment because it allows for the use of a generally accepted business 
standard developed by a recognized standards developing organization. 
The standard was reviewed by EPA and determined to be equivalent to the 
Agency's all appropriate inquiries requirements. This action does not 
disallow the use of the previously recognized standards (ASTM E1527-13 
or ASTM E2247-16), and it does not alter the requirements of the 
previously promulgated All Appropriate Inquiries Rule. In addition, 
this action will potentially increase flexibility for some parties who 
may make use of the new standard, without placing any additional burden 
on those parties who prefer to use either the ASTM E1527-13 standard, 
the ASTM E2247-16 standard, or follow the requirements of the All 
Appropriate Inquiries Rule when conducting all appropriate inquiries.
    Although we view this action as noncontroversial, in the ``Proposed 
Rules'' section in this issue of the Federal Register, we are 
publishing a separate proposed rule containing the clarification 
summarized above. That proposed rule will serve as the proposal to be 
revised if adverse comments are received. If EPA does not receive 
adverse comment in response to this direct final rule prior to April 
13, 2022, this rule will become effective on May 13, 2022, without 
further notice. If EPA receives adverse comment, we will publish a 
timely withdrawal of this direct final rule in the Federal Register, 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time and before April 13, 
2022.

II. Does this action apply to me?

    This action offers certain parties the option of using an available 
industry standard to conduct all appropriate inquiries. Parties 
purchasing potentially contaminated properties may use the ASTM E1527-
21 standard practice to comply with the all appropriate inquiries 
requirements of the Comprehensive Environmental Response, Compensation, 
and Liability 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

[[Page 14175]]

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,'' 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 
direct 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                       NAICS code
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    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.

III. What should I consider as I prepare my comments for the EPA?

    Direct your comments to Docket ID No. EPA-HQ-OLEM-2021-0946. EPA's 
policy is that all comments received will be included in the public 
docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute.
    A. Submitting CBI: Do not submit any information through 
www.regulations.gov or email that you consider to be CBI or otherwise 
protected. You can only submit CBI to EPA via U.S. mail at: HQ EPA 
Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW, 
Washington, DC 20460. Clearly mark all information that you claim to be 
CBI. For CBI submitted on a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted along 
with the comment that includes CBI. The version of the comment that 
does not include CBI will be included in the public docket. Information 
marked as CBI will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments: When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    The www.regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at https://www2.epa.gov/dockets/commenting-epa-dockets.
    C. The docket: All documents in the docket are listed in the 
www.regulations.gov index. Certain types of information claimed as CBI, 
and other information whose disclosure is restricted by statute, will 
not be available for public viewing in EPA's electronic public docket. 
EPA's policy is that copyrighted material, such as ASTM International's 
E1527-21 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'' will not be placed in EPA's 
electronic public docket but will be publicly available only in printed 
form in the official public docket. Publicly available docket materials 
are available either electronically in www.regulations.gov or in hard 
copy at the HQ EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave. NW, Washington, DC 20460. Please note: Due to public 
health concerns related to COVID-19, the EPA Docket Center and Reading 
Room are open to the public by appointment only, and walk-ins are not 
allowed. Visitors to the Reading Room must complete docket material 
requests in advance and then make an appointment to retrieve the 
material. Please contact the EPA Reading Room staff at (202) 566-1744 
or via the Dockets Customer Service email at [email protected] to arrange material requests and appointments.

IV. Statutory Authority

    This direct final 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

[[Page 14176]]

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).

V. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act (``the Brownfields 
Amendments''). In general, the Brownfields Amendments to CERCLA provide 
funds to assess and clean up brownfields sites; clarify existing and 
establish new CERCLA liability provisions related to certain types of 
owners of contaminated properties; and provide funding to establish or 
enhance State and Tribal cleanup programs. The Brownfields Amendments 
revised some of the provisions of CERCLA Section 101(35) and limited 
liability under Section 107 for bona fide prospective purchasers and 
contiguous property owners, in addition to clarifying the requirements 
necessary to establish the innocent landowner liability protection 
under CERCLA. The Brownfields Amendments clarified the requirement that 
parties purchasing potentially contaminated property undertake ``all 
appropriate inquiries'' into prior ownership and use of property before 
purchasing the property to qualify for protection from CERCLA 
liability.
    The 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 requirements 
included in the rule. Once this action is final, the All Appropriate 
Inquiries Rule also will allow for the use of the ASTM E1527-21 
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.

VI. What action is the EPA taking?

    This direct final 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.'' EPA determined that it is 
reasonable to promulgate this clarification as a direct final rule that 
is effective immediately, rather than delay promulgation of the 
clarification until after receipt and consideration of public comments. 
EPA made this determination based upon the Agency's finding that the 
ASTM E1527-21 standard is compliant with the All Appropriate Inquiries 
Rule, and the Agency sees no reason to delay allowing for its use in 
conducting all appropriate inquiries.
    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 
may continue to follow the provisions of the All Appropriate Inquiries 
Rule at 40 CFR part 312, use the ASTM E1527-13 standard or use the ASTM 
E2247-16 standard. 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 provides a 
comparison of the two ASTM E1527 standards.
    This action includes no changes to the All Appropriate Inquiries 
Rule other than to add an additional reference to the new ASTM E1527-21 
standard. EPA is not seeking comments on the standards and practices 
included in the rule published at 40 CFR part 312. Also, EPA is not 
seeking comments on the ASTM E1527-21 standard. EPA's only action with 
this direct final rule is recognition of the ASTM E1527-21 standard as 
compliant with the all appropriate inquiries requirements and, 
therefore it is only this action on which the Agency is seeking 
comment.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
OMB review. This action merely amends the All Appropriate Inquiries 
Rule to reference ASTM International's 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

[[Page 14177]]

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 (15 U.S.C. 272) (NTTAA) apply. The NTTAA was 
signed into law on March 7, 1996, and, among other things, directs the 
National Institute of Standards and Technology (NIST) to bring together 
Federal agencies as well as state and local governments to achieve 
greater reliance on voluntary consensus standards and decrease 
dependence on in-house standards. It states that use of such standards, 
whenever practicable and appropriate, is intended to achieve the 
following goals: (a) Eliminate the cost to the government of developing 
its own standards and decrease the cost of goods procured and the 
burden of complying with agency regulations; (b) provide incentives and 
opportunities to establish standards that serve national needs; (c) 
encourage long-term growth for U.S. enterprises and promote efficiency 
and economic competition through harmonization of standards; and (d) 
further the policy of reliance upon the private sector to supply 
government needs for goods and services. The Act requires that Federal 
agencies adopt private sector standards, particularly those developed 
by standards developing organizations (SDOs), whenever possible in lieu 
of creating proprietary, non-consensus standards.
    This action is compliant with the spirit and requirements of the 
NTTAA. This action allows for the use of the ASTM International 
standard known as Standard E1527-21 and entitled ``Standard Practice 
for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process.'' By taking this action, EPA is fulfilling the 
intent and requirements of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113.
    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. EPA submitted a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This action 
is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is 
effective on May 13, 2022 unless EPA receives adverse comment by May 
13, 2022.

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--[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(3)(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 E1527-21 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.

 [FR Doc. 2022-05259 Filed 3-11-22; 8:45 am]
 BILLING CODE 6560-50-P


