[Federal Register Volume 87, Number 49 (Monday, March 14, 2022)]
[Proposed Rules]
[Pages 14224-14227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05260]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2021-0946; FRL-9334-01-OLEM]


Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to amend the Standards and Practices for All 
Appropriate Inquiries to reference a standard practice recently made 
available by ASTM International, a widely recognized standards 
development organization. Specifically, EPA is proposing to amend the 
All Appropriate Inquiries Rule to reference ASTM International's 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. In the ``Rules and Regulations'' section in this issue of Federal 
Register, EPA is amending the All Appropriate Inquiries Rule to 
reference ASTM International's E1527-21 standard practice as a direct 
final rule without a prior proposed rule. If we receive no adverse 
comment, we will not take further action on this proposed rule.

DATES: Written comments must be received by April 13, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2021-0946 at www.regulations.gov: Follow the on-line

[[Page 14225]]

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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For more detailed information on 
specific aspects of this proposed 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 EPA issuing this proposed rule?
II. Does this action apply to me?
III. What should I consider as I prepare my comments for EPA?
IV. Statutory Authority
V. Background
VI. What action is EPA taking today?
VII. Statutory and Executive Order Reviews

I. Why is EPA issuing this proposed rule?

    With this action EPA proposes to amend the All Appropriate 
Inquiries Rule at 40 CFR part 312 to reference ASTM International's 
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. We published a direct final rule amending the All Appropriate 
Inquiries Rule to reference the ASTM E1527-21 standard and allow for 
its use to comply with the All Appropriate Inquiries Rule in the 
``Rules and Regulations'' section in this issue of the Federal Register 
because we view this as a noncontroversial action and anticipate no 
adverse comment. We explained our reasons for this action in the 
preamble to the direct final rule.
    If EPA receives no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule and it will not take effect. We will then address 
all public comments in any subsequent final rule based on this proposed 
rule. We do not intend to institute a second comment period on this 
action. Any parties interested in commenting on this proposal must do 
so at this time or the direct final rule will take effect. For further 
information, please see the information provided in the ADDRESSES 
section of this document.

II. Does this action apply to me?

    This action offers certain parties the option of using an available 
industry standard to conduct all appropriate inquiries. Parties 
purchasing potentially contaminated properties will be able to use the 
ASTM E1527-21 standard practice to comply with the all appropriate 
inquiries requirements of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA). This proposed rule will not 
require any entity to use this standard. Any party who wants to claim 
protection from liability under one of CERCLA's landowner liability 
protections may follow the regulatory requirements of the All 
Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13 
standard, 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 
proposed rule, the ASTM E1527-21 standard.
    Entities potentially affected by this action, or who may choose to 
use the newly referenced ASTM standard to perform all appropriate 
inquiries, include public and private parties who, as bona fide 
prospective purchasers, contiguous property owners, or innocent 
landowners, are purchasing potentially contaminated properties and wish 
to establish a limitation on CERCLA liability in conjunction with the 
property purchase. In addition, any entity conducting a site 
characterization or assessment on a property with a brownfields grant 
awarded under CERCLA section 104(k)(2)(B)(ii) may be affected by this 
action. This includes state, local and Tribal governments that receive 
brownfields site assessment grants. A summary of the potentially 
affected industry sectors (by North American Industry Classification 
System (NAICS) codes) is displayed in the table below.

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         Industry category                        NAICS code
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Real Estate........................  531
Insurance..........................  52412
Banking/Real Estate Credit.........  522292
Environmental Consulting Services..  54162
State, Local and Tribal Government.  926110, 925120
Federal Government.................  925120, 921190, 924120
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    The list of potentially affected entities in the above table may 
not be exhaustive. Our aim is to provide a guide for readers regarding 
those entities that EPA is aware potentially could be affected by this 
action. However, this action may affect other entities not listed in 
the table. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the FOR 
FURTHER INFORMATION CONTACT Section of this document.

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

    Direct your comments to Docket ID No. EPA-HQ-OLEM-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 that you consider 
to be CBI or otherwise protected through www.regulations.gov or email. 
You can only submit CBI to EPA via U.S. mail at: HQ EPA Docket Center, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 
20460. Clearly mark all information that you claim to be CBI. For CBI 
submitted on a disk or CD ROM that you mail to EPA, mark the outside of 
the disk or CD ROM as CBI and then identify electronically within the 
disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.

[[Page 14226]]

    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 
suggested alternative.
     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/edockets/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

    EPA is proposing to amend the All Appropriate Inquiries Rule that 
sets Federal standards for the conduct of ``all appropriate inquiries'' 
at 40 CFR part 312. The All Appropriate Inquiries Rule sets forth 
standards and practices necessary for fulfilling the requirements of 
CERCLA section 101(35)(B) as required to obtain CERCLA liability 
protection and for conducting site characterizations and assessments 
with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).

V. Background

    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act (``the Brownfields 
Amendments''). In general, the Brownfields Amendments to CERCLA provide 
funds to assess and cleanup brownfields sites; clarify existing and 
establish new CERCLA liability provisions related to certain types of 
owners of contaminated properties; and provide funding to establish or 
enhance State and Tribal cleanup programs. The Brownfields Amendments 
revised some of the provisions of CERCLA section 101(35) and limited 
liability under section 107 for bona fide prospective purchasers and 
contiguous property owners, in addition to clarifying the requirements 
necessary to establish the innocent landowner liability protection 
under CERCLA. The Brownfields Amendments clarified the requirement that 
parties purchasing potentially contaminated property undertake ``all 
appropriate inquiries'' into prior ownership and use of property before 
purchasing the property to qualify for protection from CERCLA 
liability.
    The 2002 Brownfields Amendments to CERCLA required EPA to develop 
regulations establishing standards and practices for how to conduct all 
appropriate inquiries. EPA promulgated regulations that set standards 
and practices for all appropriate inquiries on November 1, 2005 (70 FR 
66070). In the regulation, EPA referenced, and recognized as compliant 
with the rule, the ASTM E1527-05 ``Standard Practice for Environmental 
Site Assessments: Phase I Environmental Site Assessment Standard 
Process.'' In December 2008, EPA used a direct final rule to amend the 
All Appropriate Inquiries Rule to recognize another ASTM standard as 
compliant, ASTM E2247-08 ``Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process for 
Forestland or Rural Property.'' Both standards, the ASTM E1527-05 and 
the ASTM E2247-08, were subsequently revised by ASTM International, and 
the revised versions were referenced by EPA as compliant with the All 
Appropriate Inquiries Rule. EPA referenced the ASTM E1527-13 standard 
on August 15, 2013 (78 FR 49690) and referenced the ASTM E2247-16 
standard on September 15, 2017 (82 FR 43310). Currently, the All 
Appropriate Inquiries Rule (40 CFR part 312) allows for the use of the 
ASTM E1527-13 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 EPA taking today?

    This action will amend the All Appropriate Inquiries Rule to allow 
for the use of ASTM E1527-21 to conduct all appropriate inquiries as 
required under CERCLA for establishing the bona fide prospective 
purchaser, contiguous property owner, and innocent landowner liability 
protections.
    With this proposed action, parties seeking liability relief under 
CERCLA's landowner liability protections, as well as recipients of 
brownfields grants for conducting site assessments, will be considered 
in compliance with the

[[Page 14227]]

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 will 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, or continue to use either the ASTM E1527-13 
standard or use the ASTM E2247-16 standard.
    This proposed action merely will allow for the use of the ASTM 
E1527-21 ``Standard Practice for Environmental Site Assessments: Phase 
I Environmental Site Assessment Process'' for those parties purchasing 
potentially contaminated properties who want to use the ASTM E1527-21 
standard in lieu of the following 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 standards. To 
facilitate an understanding of the slight differences between the All 
Appropriate Inquiries Rule, the ASTM E1527-13 ``Phase I Environmental 
Site Assessment Standard,'' 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 for certain types of properties, EPA developed, and placed in 
the docket for this proposed 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.
    EPA's proposed 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 All Appropriate Inquiries 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 proposed rule is 
recognition of the ASTM E1527-21 standard as compliant with the All 
Appropriate Inquiries Rule and, therefore, it is only this action on 
which the Agency is seeking comment.
    EPA is proposing this action because the Agency wants to provide 
additional flexibility for brownfields grant recipients or other 
entities that may benefit from the use of the ASTM E1527-21 standard. 
We believe that this proposed action will allow for the use of a 
tailored standard that was developed by a recognized standards 
developing organization, reviewed by EPA, and determined to be 
equivalent to the Agency's All Appropriate Inquiries Rule. This action 
does not disallow the use of the previously recognized standards (ASTM 
E1527-13 or ASTM E2247-16), and it will not alter the requirements of 
the previously promulgated All Appropriate Inquiries Rule. In addition, 
this proposal potentially will increase flexibility for some parties 
who may make use of the new standard, without placing any additional 
burden on those parties who prefer to use either the ASTM E1527-13 
standard or the ASTM E2247-16 or to follow the requirements of the All 
Appropriate Inquiries Rule when conducting all appropriate inquiries.
    By proposing this action, EPA is fulfilling the intent and 
requirements of the National Technology Transfer and Advancement Act 
(NTTAA), Public Law 104-113.

VII. Statutory and Executive Order Reviews

    For a complete discussion of all of the administrative requirements 
applicable to this action, see the discussion in the ``Statutory and 
Executive Order Reviews'' section to the preamble for the direct final 
rule that is published in the ``Rules and Regulations'' section in this 
issue of the Federal Register.
    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this proposed 
action is not a ``significant regulatory action'' and is therefore not 
subject to OMB review. This action merely amends the All Appropriate 
Inquiries Rule to reference ASTM International's 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.

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.
[FR Doc. 2022-05260 Filed 3-11-22; 8:45 am]
BILLING CODE 6560-50-P


