[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Rules and Regulations]
[Pages 78651-78655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30536]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 312
[EPA-HQ-SFUND-2008-0873; FRL-8755-6]
RIN 2050-AG47
Amendment to Standards and Practices for All Appropriate
Inquiries Under CERCLA
AGENCY: Environmental Protection Agency (EPA).
[[Page 78652]]
ACTION: Direct final rule.
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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 development organization. Specifically, this
direct final rule amends the All Appropriate Inquiries Rule to
reference ASTM International's E2247-08 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process for Forestland or Rural Property'' and allow for its use to
satisfy the statutory requirements for conducting all appropriate
inquiries under the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA).
DATES: This rule is effective on March 23, 2009, without further
notice, unless EPA receives adverse comment by January 22, 2009. 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-
SFUND-2008-0873] by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: 202-566-9744
Mail: Superfund Docket, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of two copies.
Hand Delivery: EPA Headquarters West Building, Room 3334,
located at 1301 Constitution Ave., NW., Washington, DC. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. The EPA Headquarters Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m. Eastern Standard Time, Monday
through Friday, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2008-0873. Please reference Docket number EPA-HQ-SFUND-2008-0873 when
submitting your comments.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the 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, 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 http://www.epa.gov/epahome/dockets.htm
Docket: You may use EPA Dockets at http://www.epa.gov/edocket/ to
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Once in the system, select ``search,'' then key in the
docket identification number.
All documents in the docket are listed in the http://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 Internationals'
E2247-08 ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process for Forestland or Rural
Property'' will not be place 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 http://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. The Public Reading Room at this docket facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Superfund Docket is
(202) 566-9744.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing
impaired). In the Washington, DC metropolitan area, call 703-412-9810
or TDD 703-412-3323. For more detailed information on specific aspects
of this rule, contact Patricia Overmeyer, Office of Brownfields and
Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-566-2774, or
[email protected].
Regulated Entities
Today's action offers certain parties the option of using an
available industry standard to conduct all appropriate inquiries at
certain properties. Parties purchasing large tracts (greater than 120
acres) of forested land and parties purchasing large rural properties
may use the ASTM E2247-08 standard practice to comply with the all
appropriate inquiries requirements of CERCLA. Today's rule does not
require any entity to use this standard. Any party who wants to claim
protection from liability under CERCLA may follow the regulatory
requirement of the All Appropriate Inquiries Final Rule at 40 CFR part
312, or use the ASTM E1527-05 Standard Practice for Phase I
Environmental Site Assessments 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 large tracts of forested lands or large
rural properties and intend to claim a limitation on CERCLA liability
in conjunction with the property purchase. In addition, any entity
conducting a site characterization or assessment on a property that
consists of large tracts of forested land or a large rural property
with a brownfields grant awarded under CERCLA section104(k)(2)(B)(ii)
may be affected by today's action. This includes State, local and
Tribal governments that receive brownfields site assessment grants. A
summary of the potentially affected industry sectors (by North American
Industry Classification
[[Page 78653]]
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........................... 52292
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.
Preamble
I. Statutory Authority
II. Background
III. This Action
IV. Administrative Requirements
I. Statutory Authority
This direct final rule amends the All Appropriate Inquiries Final
Rule setting federal standards for the conduct of ``all appropriate
inquiry'' at 40 CFR part 312. The All Appropriate Inquiries Final Rule
sets forth standards and practices necessary for fulfilling the
requirements of CERCLA section 101(35)(B) as required to obtain CERCLA
liability relief and for conducting site characterizations and
assessments with the use of brownfields grants per CERCLA section
104(k)(2)(B)(ii).
II. 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; clarifies CERCLA
liability provisions related to innocent purchasers of contaminated
properties; and provides funding to enhance State and Tribal cleanup
programs. In part, subtitle B of the Brownfields Amendments revises
some of the provisions of CERCLA section 101(35) and limits Superfund
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 defense under CERCLA. The
Brownfields Amendments clarified the requirement that parties
purchasing potentially contaminated property undertake ``all
appropriate inquiry'' into prior ownership and use of property prior to
purchasing the property in order to qualify for protection from CERCLA
liability.
The Brownfields Amendments 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
final rule, the ASTM E1527-05 ``Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment Process.
Therefore, the final rule (40 CFR part 312) allows for the use of the
ASTM E1527-05 standard to conduct all appropriate inquiries, in lieu of
following requirements included in the final rule.
Since EPA promulgated the All Appropriate Inquiries Final Rule
setting standards and practices for the conduct of all appropriate
inquiries, ASTM International published a new Phase I site assessment
standard specifically tailored to conducting site assessments of large
tracts of rural and forestland property. This standard, ASTM E2247-08,
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process for Forestland or Rural
Property,'' was reviewed by EPA, in response to a request for its
review by ASTM International, and determined by EPA to be compliant
with the requirements of the All Appropriate Inquiries Final Rule.
Today's direct final rule amends the All Appropriate Inquiries
Final Rule to allow the use of the recently revised ASTM standard,
E2247-08, for conducting all appropriate inquiries, as required under
CERCLA for establishing the innocent landowner defense, as well as
qualifying for the bona fide prospective purchaser and contiguous
property owner liability protections.
With today's action, EPA is establishing that, parties seeking
liability relief under CERCLA's landowner liability protections, as
well as recipients of brownfields grants for conducting site
assessments, will be considered to be in compliance with the
requirements for all appropriate inquiries, as required in the
Brownfields Amendments to CERCLA, if such parties comply with the
procedures provided in the ASTM E2247-08, ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process for Forestland or Rural Property.'' 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 E2247-08 standard is compliant with the All Appropriate Inquiries
Final Rule and the Agency sees no reason to delay allowing for its use
in conducting all appropriate inquiries. The Agency notes that today's
action does not require any party to use the ASTM E2247-08 standard.
Any party conducting all appropriate inquiries to comply with the
CERCLA requirements at section 101(35)(B) for the innocent landowner
defense, the contiguous property owner liability protection, or the
bona fide prospective purchaser liability protection may continue to
follow the provisions of the All Appropriate Inquiries Final Rule at 40
CFR part 312 or use the ASTM E1527-05 Standard.
In taking today's action, the Agency is allowing for the use of an
additional recognized standard or customary business practice, in
complying with a federal regulation. Today's action does not require
any person to use the newly recognized standard. Today's action merely
allows for the use of ASTM International's E2247-08 ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process for Forestland or Rural Property'' for those parties
purchasing relatively large tracts of rural property or forestlands who
want to use the ASTM E2247-08 standard in lieu of the following
specific requirements of the All Appropriate Inquiries Final Rule or
the ASTM E1527-05 standard.
The Agency notes that there are no significant differences between
the regulatory requirements and the two ASTM standards. To facilitate
an understanding of the slight differences between the All Appropriate
Inquiries Final Rule, the ASTM E1527-05 Phase I Environmental Site
Assessment Standard and the ASTM E2247-08 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process for Forestland or Rural Property,'' as well as the
applicability of the E2247-08 standard to certain types of properties,
EPA developed, and placed in the docket for today's action, the
document ``Comparison of All Appropriate Inquiries Regulation and
[[Page 78654]]
ASTM E2247-08 Phase I Environmental Site Assessment Process for
Forestland or Rural Property.'' The document provides a comparison of
the federal regulation and the two ASTM standards.
By taking today's action, EPA is fulfilling the intent and
requirements of the National Technology Transfer and Advancement Act of
1995 (NTTAA), Public Law 104-113.
III. This Action
EPA is publishing this direct final rule without prior proposal
because the Agency wants to provide additional flexibility for grant
recipients or other entities who may benefit from the use of the ASTM
E2247-08 standard. In addition, the Agency views this as a
noncontroversial action and anticipates no adverse comment. We believe
that today's action is reasonable and can be promulgated without
consideration of public comment because it allows for the use of a
tailored standard developed by a recognized standards developing
organization and that was reviewed by EPA and determined to be
equivalent to the Agency's final rule. Today's action does not disallow
the use of the previously recognized standard (ASTM E1527-05) and it
does not alter the requirements of the previously promulgated final
rule. In addition, today's 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 E1527-05 standard or follow the requirements of the All
Appropriate Inquiries Final Rule when conducting all appropriate
inquiries.
Although we view today's action as noncontroversial, in the
``Proposed Rules'' section of today's 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 January
22, 2009, this rule will become effective on March 23, 2009, 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 January 22,
2009.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735 (October 4, 1993)), and is therefore not subject
to review by the Office of Management and Budget under the EO.
B. Paperwork Reduction Act
Today's action includes no information collection requirements and
therefore no associated burdens. The action will not result in any
change to the current regulation other than to allow for the use of an
additional standard.
C. Regulatory Flexibility Act
Today's direct rule is not subject to the Regulatory Flexibility
Act (RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. (5 U.S.C. 601 et
seq.). Although the rule is subject to the APA, the Agency has invoked
the ``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not
subject to the notice and comment requirements under the APA or any
other statute. Today's action does not change the current regulatory
status quo and it has no economic impact. Therefore, it is not subject
to the regulatory flexibility provisions of the Regulatory Flexibility
Act.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This action merely allows for the use of a voluntary consensus
standard. This action allows the newly recognized standard to be used
by any entity. The action imposes no new regulatory requirements and
will result in no additional burden to any entity. Thus, this rule is
not subject to the requirements of sections 202 or 205 of the Unfunded
Mandates Reform Act. This rule is also not subject to the requirements
of section 203 of UMRA because it contains no regulatory requirements
that might significantly or uniquely affect small governments. This
action imposes no enforceable duty on any State, local or tribal
governments or the private sector.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August
10, 1999)), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the EO to
include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in EO 13132. Thus, EO 13132 does not apply to
this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in EO
13175, entitled ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249 (November 9, 2000)). Today's action does not
change any current regulatory requirements and therefore does not
impose any impacts upon tribal entities. Thus, EO 13175 does not apply
to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045, ``Protection of Children
From Environmental Health Risks and Safety Risks'' (62 FR 19885 (April
23, 1997)), because it is not economically significant as defined in EO
12866, and EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to EO 13211, entitled ``Actions
Concerning Regulations That Significantly Affect
[[Page 78655]]
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)),
because it is not a significant regulatory action under EO 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
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) apply. The NTTAA was signed
into law on March 7, 1996 and, among other things, directs the National
Institute of Standards and Technology (NIST) to bring together federal
agencies as well as state and local governments to achieve greater
reliance on voluntary standards and decreased dependence on 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 regulation; (b) provide incentives and opportunities to
establish standards that serve national needs; (c) encourage long-term
growth for U.S. enterprises and promote efficiency and economic
competition through harmonization of standards; and (d) further the
policy of reliance upon the private sector to supply Government needs
for goods and services. The Act requires that federal agencies adopt
private sector standards, particularly those developed by standards
developing organizations (SDOs), wherever possible in lieu of creating
proprietary, non-consensus standards.
Today's action is compliant with the spirit and requirements of the
NTTAA. Today's action allows for the use of the ASTM International
standard known as Standard E2247-08 and entitled ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process for Forestland or Rural Property.''
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, entitled ``Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629 (Feb. 16, 1994)), establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this direct final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. Today's action does not change any regulatory requirements
or impose any new requirements.
K. Congressional Review Act
The Congressional Review Act, as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, generally provides that
before a rule may take effect, the agency promulgating the rule must
submit a rule report, which includes a copy of the rule, to each House
of the Congress and to the Comptroller General of the United States. 5
U.S.C. 801 et seq. 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 March 23, 2009, unless EPA receives adverse comment by January 22,
2009.
List of Subjects in 40 CFR Part 312
Administrative practice and procedure, Hazardous substances.
Dated: December 17, 2008.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40 chapter I of the code
of Federal Regulations is amended as follows:
0
Title 40 Chapter I 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 (b) to read as
follows:
Sec. 312.11 References.
* * * * *
(b) The procedures of ASTM International Standard E2247-08 entitled
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process for Forestland or Rural
Property.'' This standard is available from ASTM International at
http://www.astm.org, 1-610-832-9585.
[FR Doc. E8-30536 Filed 12-22-08; 8:45 am]
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