Standards and Practices for All Appropriate Inquiries

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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 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.

DATES:

This rule is effective on August 23, 2024.

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.

Table of Contents

I. Does this action apply to me?

II. Statutory Authority

III. Background

IV. Summary of Comments

V. What action is 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 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.

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.

IV. Statutory Authority

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).

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), 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.

IV. Summary of Comments

EPA received no comments on the proposed rule published on March 12, 2024.

V. What action is EPA taking?

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 parties comply with the procedures provided in the ASTM E2247-23, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” EPA made the determination that the ASTM E2247-23 Standard is compliant with the All Appropriate Inquiries regulation after reviewing the elements of the ASTM standard practice and comparing them to the requirements set forth in the All Appropriate Inquiries Rule.

Also, as part of this action, to avoid any 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, one year following this action, remove its current recognition of the ASTM E2247-16 “Standard Practice for Environmental Site Assessments for Forestland or Rural Property” as being compliant with the AAI Rule. EPA is providing all parties sufficient notice to become familiar with the updated industry standard (ASTM E2247-23). To provide parties with an adequate opportunity to complete any AAI investigations that may be on-going using the ASTM E2247-16 standard at this time, the Agency is allowing for a set period of one year following this action before removing its recognition of the historic standard (ASTM E2247-16) as compliant with all appropriate inquiries. The sunset period for removal of this recognition from the ASTM E2247-16 “Standard Practice for Environmental Site Assessments for Forestland or Rural Property” is one year from the date of this action.

The Agency notes that this action will not require any party to use the ASTM E2247-23 standard. Any party conducting all appropriate inquiries to comply with CERCLA's bona fide prospective purchaser, contiguous property owner, or 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 the ASTM E1527-21 Phase I Environmental Site Assessment Standard.

This action merely allows for the use of the ASTM E2247-23 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property” for those parties purchasing potentially contaminated properties who want to use the ASTM E2247-23 standard in lieu of following specific requirements of the All Appropriate Inquiries Rule.

This action also includes the removal of the current recognition of the ASTM E2247-16 Standard Practice for Environmental Site Assessments for Forestland or Rural Properties as compliant with all appropriate inquiries from the All Appropriate Inquiries Rule. This recognition of the ASTM E1527-16 standard will be removed from the reference section of the All Appropriate Inquiries rule (40 CFR 312.11) one year following publication of this final rule.

This action includes no changes to the All Appropriate Inquiries Rule other than to add an additional reference to the new ASTM E2247-23 standard and to sunset the reference to the historic ASTM E2247-16 standard.

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 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 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 any 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 E2247-23 and entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” 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).

List of Subjects in 40 CFR Part 312

• Environmental protection
• Administrative practice and procedure
• Hazardous substances

For the reasons discussed in the preamble, the Environmental Protection Agency amends 40 CFR part 312 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. Amend § 312.11 by revising paragraph (b) and adding paragraph (d) to read as follows: