Standards and Practices for All Appropriate Inquiries

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 312</CFR> <DEPDOC>[EPA-HQ-OLEM-2024-0097; FRL-11691-01-OLEM]</DEPDOC> <SUBJECT>Standards and Practices for All Appropriate Inquiries</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 development organization. Specifically, EPA is amending the All Appropriate Inquiries Rule to reference ASTM International's E2247-23 “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 requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act. In addition, EPA will remove after one year, from the All Appropriate Inquiries Rule, recognition of the previous version of that standard, ASTM E2247-16, as compliant with the All Appropriate Inquiries Rule. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective on August 23, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">Overmeyer.patricia@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document, “we,” “us,” and “our” refer to the EPA. <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Does this action apply to me?</FP> <FP SOURCE="FP-2">II. Statutory Authority</FP> <FP SOURCE="FP-2">III. Background</FP> <FP SOURCE="FP-2">IV. Summary of Comments</FP> <FP SOURCE="FP-2">V. What action is EPA taking?</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Does this action apply to me?</HD> 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 E2247-23 standard practice to comply with the all appropriate inquiries requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This action 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 ASTM's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” or use the standard recognized by this action, the ASTM E2247-23 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. <GPOTABLE COLS="2" OPTS="L2,tp0,i1" CDEF="s25,15"> <TTITLE> </TTITLE> <CHED H="1">Industry category</CHED> <CHED H="1">NAICS code</CHED> <ROW> <ENT I="01">Real Estate</ENT> <ENT>531</ENT> </ROW> <ROW> <ENT I="01">Insurance</ENT> <ENT>52412</ENT> <ENT I="01">Banking/Real Estate Credit</ENT> <ENT>522292</ENT> </ROW> <ROW> <ENT I="01">Environmental Consulting Services</ENT> <ENT>54162</ENT> </ROW> <ROW> <ENT I="01">State, Local and Tribal Government</ENT> <ENT>926110, 925120</ENT> </ROW> <ROW> <ENT I="01">Federal Government</ENT> <ENT>925120, 921190, 924120</ENT> </ROW> </GPOTABLE> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this document. <HD SOURCE="HD1">IV. Statutory Authority</HD> This rule amends 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 certain CERCLA liability protections and for conducting site characterizations and assessments with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii). <HD SOURCE="HD1">V. Background</HD> 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), referenced the ASTM E1527-21 Standard on December 15, 2022 (87 FR 76578), 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 E1527-21 standard or the ASTM E2247-16 standard to conduct all appropriate inquiries, in lieu of following requirements included in the Rule. Recently, ASTM International published a revised standard for conducting Phase I environmental site assessments for forestland or rural properties. This standard, ASTM E2247-23, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Properties,” was reviewed by EPA, and determined by EPA to be compliant with the requirements of the All Appropriate Inquiries Rule. On March 12, 2024, EPA published a proposed rule (89 FR 17804) to amend the All Appropriate Inquiries Rule to reference ASTSM E2247-23 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Properties,” and allow for its use to satisfy the requirements of the All Appropriate Inquiries Rule. In this document, EPA is finalizing the amendment to the All Appropriate Inquiries Rule to reference the revised ASTM E2247-23 standard. Recognition of the ASTM E2247-16 standard practice will be sunset one year following the publication of this action. <HD SOURCE="HD1">IV. Summary of Comments</HD> EPA received no comments on the proposed rule published on March 12, 2024. <HD SOURCE="HD1">V. What action is EPA taking?</HD> This rule amends the All Appropriate Inquiries Rule to allow for the use of the recently revised ASTM E2247-23 standard 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 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 pa ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━