[Federal Register: October 18, 2005 (Volume 70, Number 200)]
[Notices]
[Page 60512-60519]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18oc05-51]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7984-5]
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding
Guidance for State and Tribal Response Programs
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept
requests, from December 1, 2005 through January 31, 2006, for grants to
supplement State and Tribal Response Programs. This notice provides
guidance on eligibility for funding, use of funding, grant mechanisms
and process for awarding funding, the allocation system for
distribution of funding, and terms and reporting under these grants.
EPA has consulted with state and tribal officials in developing this
guidance.
The primary goal of this funding is to ensure that state and tribal
response programs include, or are taking reasonable steps to include,
certain elements and a public record. Another goal is to provide
funding for other activities that increase the number of response
actions conducted or overseen by a state or tribal response program.
This funding is not intended to supplant current state or tribal
funding for their
[[Page 60513]]
response programs. Instead, it is to supplement their funding to
increase their response capacity.
For fiscal year 2006, EPA will consider funding requests up to a
maximum of $1.5 million per state or tribe. Subject to the availability
of funds, EPA regional personnel will be available to provide technical
assistance to states and tribes as they apply for and carry out these
grants.
DATES: This action is effective as of December 1, 2005. EPA expects to
make non-competitive grant awards to states and tribes which apply
during fiscal year 2006.
ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA
Headquarters are as follows:
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Region States Mailing address
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EPA Region 1; Diane Kelley.... CT, ME, MA, NH, One Congress Street,
RI, VT. Boston, MA 02114-
2023.
EPA Region 2; Larry D'Andrea.. NJ, NY, PR, VI... 290 Broadway, 18th
Floor, New York, NY
10007.
EPA Region 3; Tom Stolle...... DE, DC, MD, PA, 1650 Arch Street,
VA, WV. Philadelphia, PA
19103.
EPA Region 4; Rosemary Patton. AL, FL, GA, KY, Atlanta Federal
MS, NC, SC, TN. Center, 61 Forsyth
Street, Atlanta, GA
30303.
EPA Region 5; Deborah Orr..... IL, IN, MI, MN, 77 West Jackson
OH, WI. Blvd., Chicago, IL
60604-3507.
EPA Region 6; Stan Hitt....... AR, LA, NM, OK, 1445 Ross Ave., Suite
TX. 1200, (6SF-PB),
Dallas, TX 75202-
2733.
EPA Region 7; Jim Callier..... IA, KS, MO, NE... 901 N. 5th Street,
Kansas City, KS
66101.
EPA Region 8; Kathie Atencio.. CO, MT, ND, SD, 999 18th Street,
UT, WY. Suite 300 (EPR-B),
Denver, CO 80202-
2406.
EPA Region 9; Carolyn Douglas. AZ, CA, HI, NV, 75 Hawthorne Street,
AS, GU. SFD 1-1, San
Francisco, CA 94015.
EPA Region 10; Timothy AK, ID, OR, WA... 1200 Sixth Avenue
Brincefield. (ECL-112), Seattle,
WA 98101.
Headquarters; Jennifer Millett ................. U.S. EPA, Office of
Wilbur. Brownfields Cleanup
& Redevelopment.
1200 Pennsylvania
Ave., NW, MC 5105T,
Washington, DC
20460.
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FOR FURTHER INFORMATION CONTACT: The U.S. EPA's Office of Solid Waste
and Emergency Response, Office of Brownfields Cleanup and
Redevelopment, (202) 566-2777.
SUPPLEMENTARY INFORMATION: The Small Business Liability Relief and
Brownfields Revitalization Act (SBLRBRA) was signed into law on January
11, 2002. The Act amends the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, by adding section
128(a). Section 128(a) authorizes a $50 million grant program \1\ to
establish and enhance state \2\ and tribal \3\ response programs.
Generally, these response programs address the assessment, cleanup and
redevelopment of brownfields sites and other contaminated sites.
Section 128(a) grants will be awarded and administered by U.S.
Environmental Protection Agency (EPA) regional offices. This document
provides guidance that will enable states and tribes to apply for and
use section 128(a) funds in Fiscal Year 2006.
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\1\ The Catalogue of Federal Domestic Assistance entry for the
section 128(a) State and Tribal Response Programs grant program is
66.817.
\2\ The term ``state'' is defined in this document as defined in
CERCLA section 101(27).
\3\ The term ``Indian tribe'' is defined in this document as it
is defined in CERCLA section 101(36). Intertribal consortia, as
defined in the Federal Register notice at 67 FR 67181, are also
eligible for funding under CERCLA section 128(a).
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State and tribal response programs oversee assessment and cleanup
activities at the majority of brownfield sites across the country. The
depth and breadth of state and tribal response programs vary. Some
focus solely on CERCLA related activities, while others are multi-
faceted, for example, addressing sites regulated by both CERCLA and the
Resource Conservation and Recovery Act (RCRA). Many state programs also
offer accompanying financial incentive programs to spur cleanup and
redevelopment. In passing section 128(a),\4\ Congress recognized the
accomplishments of state and tribal response programs in cleaning up
and redeveloping brownfield sites. Section 128(a) also provides EPA
with an opportunity to strengthen its partnership with states and
tribes.
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\4\ The Small Business Liability Relief and Brownfields
Revitalization Act (SBLRBRA) was signed into law on January 11,
2002. The Act amends CERCLA by adding section 128(a).
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The primary goal of this funding is to ensure that state and tribal
response programs include, or are taking reasonable steps to include,
certain elements and a ``public record.'' The secondary goal is to
provide funding for other activities that increase the number of
response actions conducted or overseen by a state or tribal response
program. This funding is not intended to supplant current state or
tribal funding for their response programs. Instead, it is to
supplement their funding to increase their response program's capacity.
Subject to the availability of funds, EPA will be available to
provide technical assistance to states and tribes as they apply for and
carry out section 128(a) grants.
Eligibility for Funding
To be eligible for funding under CERCLA section 128(a), a state or
tribe must:
Demonstrate that their response program includes, or is
taking reasonable steps to include, the four elements of a response
program, described below; or (b) be a party to voluntary response
program Memorandum of Agreement (VRP MOA) \5\ with EPA; AND
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\5\ The legislative history of SBLRBRA indicates that Congress
intended to encourage states and Tribes to enter into MOAs for their
voluntary response programs. States or tribes that are parties to
VRP MOAs and that maintain and make available a public record are
automatically eligible for section 128(a) funding.
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Maintain and make available to the public a record of
sites at which response actions have been completed in the previous
year and are planned to be addressed in the upcoming year, see CERCLA
section 128(b)(1)(C).
Matching Funds/Cost-Share
With the exception of the section 128(a) funds a state or tribe
uses to capitalize a Brownfields Revolving Loan Fund under CERCLA
section 104(k)(3), states and tribes are not required to provide
matching funds for grants awarded under section 128(a).
The Four Elements--Section 128(a)
Section 128(a) recipients that do not have a VRP MOA with EPA, must
[[Page 60514]]
demonstrate that their response program includes, or is taking
reasonable steps to include, four elements. Section 128(a) also
authorizes funding for activities necessary to establish and enhance
the four elements and to establish and maintain the public record
requirement.
Generally, the four elements are: Timely survey and inventory of
brownfield sites in state or tribal land. EPA's goal in funding
activities under this element is to enable the state or tribe to
establish or enhance a system or process that will provide a reasonable
estimate of the number, likely locations, and the general
characteristics of brownfield sites in their state or tribal lands.
EPA recognizes the varied scope of state and tribal response
programs and will not require states and tribes to develop a ``list''
of brownfields sites. However, at a minimum, the state or tribe should
develop and/or maintain a system or process that can provide a
reasonable estimate of the number, likely location, and general
characteristics of brownfields sites within their state or tribal
lands.
Given funding limitations, EPA will negotiate work plans with
states and tribes to achieve this goal efficiently and effectively, and
within a realistic time frame. For example, many of EPA's Brownfields
Assessment grantees conduct inventories of brownfield sites in their
communities or jurisdictions. EPA encourages states and tribes to work
with these grantees to obtain the information that they have gathered
and include it in their survey and inventory.
Oversight and enforcement authorities or other mechanisms and
resources. EPA's goal in funding activities under this element is to
have state and tribal response programs that include oversight and
enforcement authorities or other mechanisms, and resources that are
adequate to ensure that a response action will protect human health and
the environment and be conducted in accordance with applicable federal
and state law; and the necessary response activities are completed if
the person conducting the response activities fails to complete the
necessary response activities (this includes operation and maintenance
or long-term monitoring activities).
Mechanisms and resources to provide meaningful opportunities for
public participation.\6\ EPA's goal in funding activities under this
element is to have states and tribes include in their response program
mechanisms and resources for public participation, including, at a
minimum:
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\6\ States and tribes establishing this element may find useful
information on public participation on EPA's community involvement
Web site at http://www.epa.gov/superfund/action/community/index.htm.
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Public access to documents and related materials that a
state, tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site activities;
Prior notice and opportunity for public comment on cleanup
plans and site activity; and
A mechanism by which a person who is, or may be, affected
by a release or threatened release of a hazardous substance, pollutant,
or contaminant at a brownfields site--located in the community in which
the person works or resides--may request that a site assessment be
conducted. The appropriate state or tribal official must consider this
request and appropriately respond.
Mechanisms for approval of a cleanup plan and verification and
certification that cleanup is complete. EPA's goal in funding
activities under this element is to have states and tribes include in
their response program mechanisms to approve cleanup plans and to
verify that response actions are complete, including a requirement for
certification or similar documentation from the state, the tribe, or a
licensed site professional to the person conducting the response action
that the response action is complete. Written approval by a state or
tribal response program official of a proposed cleanup plan is an
example of an approval mechanism.
Public Record Requirement
In order to be eligible for section 128(a) funding, states and
tribes (including those with MOAs) must establish and maintain a public
record system, described below, in order to receive funds. Recipients
receiving section 128(a) funding for the first time in FY06 must
demonstrate that they established and maintained the public record, as
describe below, to be eligible for funding in FY07.
Specifically, under section 128(b)(1)(C), states and tribes must:
Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions have been completed during the previous
year;
Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions are planned to be addressed in the next
year; and
Identify in the public record whether or not the site,
upon completion of the response action, will be suitable for
unrestricted use. If not, the public record must identify the
institutional controls relied on in the remedy.
Section 128(a) funds may be used to maintain and make available a
public record system that meets the requirements discussed above.
Distinguishing the ``survey and inventory'' element from the
``public record.'' It is important to note that the public record
requirement differs from the ``timely survey and inventory'' element
described in the ``Four Elements'' section above. The public record
addresses sites at which response actions have been completed in the
previous year and are planned to be addressed in the upcoming year. In
contrast, the ``timely survey and inventory'' element, described above,
refers to a general approach to identifying brownfield sites.
Making the public record easily accessible. EPA's goal is to enable
states and tribes to make the public record and other information, such
as information from the ``survey and inventory'' element, easily
accessible. For this reason, EPA will allow states and tribes to use
section 128(a) funding to make the public record, as well as other
information, such as information from the ``survey and inventory''
element, available to the public via the internet or other means. For
example, the Agency would support funding state and tribal efforts to
include detailed location information in the public record such as the
street address and latitude and longitude information for each site.\7\
A state or tribe may also choose to use the section 128(a) funds to
make their survey and inventory information available on the internet
as well.
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\7\ For further information on latitude and longitude
information, please see EPA's data standards Web site available at
http://oaspub.epa.gov/edr/epastd$.startup.
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In an effort to reduce grant reporting requirements and increase
public access to the public record, EPA encourages states and tribes to
place their public record on the internet. If a state or tribe places
the public record on the internet, maintains the substantive
requirements of the public record, and provides EPA with the link to
that site, EPA will, for purposes of grant funding only, deem the
public record reporting requirement met.
Long-term maintenance of the public record. EPA encourages states
and tribes to maintain public record information, including data on
institutional controls, on a long term basis (more than one year) for
sites at which a response action
[[Page 60515]]
has been completed. Subject to EPA regional office approval, states or
tribes may include development and operation of systems that ensure
long term maintenance of the public record, including information on
institutional controls, in their work plans.\8\
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\8\ States and tribes may find useful information on
institutional controls on EPA's institutional controls Web site at
http://www.epa.gov/superfund/action/ic/index.htm.
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Use of Funding
Overview
Section 128(a)(1)(B) describes the eligible uses of grant funding
by states and tribes. In general, a state or tribe may use a grant to
``establish or enhance'' their response programs, including elements of
the response program that include activities related to responses at
brownfield sites with petroleum contamination. States and tribes may
use section 128(a) funding to, among other things:
Develop legislation, regulations, procedures, ordinances,
guidance, etc. that would establish or enhance the administrative and
legal structure of their response programs;
Capitalize a revolving loan fund (RLF) for brownfields
cleanup under CERCLA section 104(k)(3). These RLFs are subject to the
same statutory requirements and grant terms and conditions applicable
to RLFs awarded under section 104(k)(3). Requirements include a 20%
match on the amount of section 128(a) funds used for the RLF, a
prohibition on using EPA grant funds for administrative costs relating
to the RLF, and a prohibition on using RLF loans or subgrants for
response costs at a site for which the recipient may be potentially
liable under section 107 of CERCLA. Other prohibitions contained in
CERCLA section 104(k)(4) also apply;
Purchase environmental insurance or develop a risk-sharing
pool, indemnity pool, or insurance mechanism to provide financing for
response actions under a state or tribal response program;
Establish and maintain the required public record
described above. EPA considers activities related to maintaining and
monitoring institutional controls to be eligible costs under section
128(a); or
Conduct limited site-specific activities, such as
assessment or cleanup, provided such activities establish and/or
enhance the response program and are tied to the four elements.
Uses Related to ``Establishing'' a State or Tribal Response Program
Under CERCLA section 128(a), ``establish'' includes activities
necessary to build the foundation for the four elements of a state or
tribal response program and the public record requirement. For example,
a state or tribal response program may use section 128(a) funds to
develop regulations, ordinances, procedures, or guidance. For more
developed state or tribal response programs, establish may also include
activities that keep their program at a level that meets the four
elements and maintains a public record required as a condition of
funding under CERCLA section 128(b)(1)(C).
Uses Related to ``Enhancing'' a State or Tribal Response Program
Under CERCLA section 128(a), ``enhance'' is related to activities
that add to or improve a state or tribal response program or increase
the number of sites at which response actions are conducted under a
state or tribal response program. The exact ``enhancement'' uses that
may be allowable depend upon the work plan negotiated between the EPA
regional office and the state or tribe. For example, regional offices
and states or tribes may agree that section 128(a) funds may be used
for outreach and training directly related to increasing awareness of
its response program, and improving the skills of program staff. It may
also include developing better coordination and understanding of other
state response programs, e.g., RCRA or USTs. Other ``enhancement'' uses
may be allowable as well.
Uses Related to Site-Specific Activities
States and tribes may use section 128(a) funds for activities that
improve state or tribal capacity to increase the number of sites at
which response actions are conducted under the state or tribal response
program.
Eligible uses of funds include, but are not limited to, site-
specific activities such as: oversight of response action; technical
assistance to federal brownfields grant recipients; development and/or
review of site-specific quality assurance project plans (QAPPs);
preparation and submission of Property Profile Forms; auditing site
cleanups to verify the completion of the cleanup; conducting
assessments or cleanups at brownfields sites.
Uses Related to Site-Specific Assessment and Cleanup Activities
Site-specific assessment and cleanup activities should establish
and/or enhance the response program and be tied to the four elements.
Site-specific assessments and cleanups must comply with all applicable
federal and state laws and are subject to the following restrictions:
Section 128(a) funds can only be used for assessments or
cleanups at sites that meet the definition of a brownfield site at
CERCLA section 101(39).
No more than $200,000 per site can be funded for
assessments with section 128(a) funds, and no more than $200,000 per
site can be funded for cleanups with section 128(a) funds.
Absent EPA approval, the state/tribe may not use funds
awarded under this agreement to assess and clean up sites owned by the
recipient.
Assessments and cleanups cannot be conducted at sites
where the state/tribe is a potentially responsible party pursuant to
CERCLA section 107, except at brownfields sites contaminated by a
controlled substance as defined in CERCLA section 101(39)(D)(ii)(I).
Subgrants cannot be provided to entities that may be
potentially responsible parties (pursuant to CERCLA section 107) at the
site for which the assessment or cleanup activities are proposed to be
conducted.
Costs Incurred for Activities at ``Non-Brownfields'' Sites
Costs incurred for activities at non-brownfields sites, e.g.,
oversight, may be eligible and allowable if such activities are
included in the state's or tribe's work plan. For example, auditing
completed site cleanups in jurisdictions where states or tribes use
licensed site professionals, to verify that sites have been properly
cleaned up, may be an eligible cost under section 128(a). These costs
need not be incurred in connection with a brownfields site to be
eligible, but must be authorized under the state's or tribe's work plan
to be allowable. Other uses may be eligible and allowable as well,
depending upon the work plan negotiated between the EPA regional office
and the state or tribe. However, assessment and cleanup activities may
only be conducted on eligible brownfields sites, as defined in CERCLA
section 101(39).
Uses Related to Site-Specific Activities at Petroleum Brownfields Sites
States and tribes may use section 128(a) funds for activities that
establish and enhance their response programs, even if their response
programs address petroleum contamination. Also, the costs of site-
specific activities, such as site assessments or cleanup at petroleum
contaminated brownfields sites, defined at CERCLA section
101(39)(D)(ii)(II), are eligible and are
[[Page 60516]]
allowable if the activity is included in the work plan negotiated
between the EPA regional office and the state or tribe. Section 128(a)
funds used to capitalize a Brownfields RLF may be used at brownfields
sites contaminated by petroleum to the extent allowed under the CERCLA
section 104(k)(3) RLF program.
General Programmatic Guidelines for 128(a) Grant Funding Requests
Funding authorized under CERCLA section 128(a) is awarded through a
cooperative agreement \9\ with a state or tribe. The program is
administered under the general EPA grant and cooperative agreement
regulations for states, tribes, and local governments found in the Code
of Federal Regulations at 40 CFR part 31. Under these regulations, the
grantee for section 128(a) grant program is: ``The government to which
a grant is awarded and which is accountable for the use of the funds
provided. The grantee is the entire legal entity even if only a
particular component of the entity is designated in the grant award
document.'' 40 CFR 31.3.
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\9\ A cooperative agreement is a grant to a state or a tribe
includes substantial involvement of EPA regional enforcement and
program staff during performance of activities described in the
cooperative agreement work plan. Examples of this involvement
include technical assistance and collaboration on program
development and site-specific activities.
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One application per state or tribe. Subject to the availability of
funds, EPA regional offices will negotiate and enter into section
128(a) cooperative agreements with eligible and interested states or
tribes. EPA will accept only one application from each eligible state
or tribe.
Define the State or Tribal Response Program. States and tribes must
define in their work plan the ``section 128(a) response program(s)'' to
which the funds will be applied, and may designate a component of the
state or tribe that will be EPA's primary point of contact for
negotiations on their proposed work plan. When EPA funds the section
128(a) cooperative agreement, states and tribes may distribute these
funds among the appropriate state and tribal agencies that are part of
the section 128(a) response program. This distribution must be clearly
outlined in their annual work plan.
Separate cooperative agreements for the capitalization of RLFs
using section 128(a) funds. If a portion of the section 128(a) grant
funds requested will be used to capitalize a revolving loan fund for
cleanup, pursuant to section 104(k)(3), two separate cooperative
agreements must be awarded, i.e., one for the RLF and one for non-RLF
uses. States and tribes may, however, submit one initial request for
funding, delineating the RLF as a proposed use. Section 128(a) funds
used to capitalize an RLF are not eligible for inclusion into a
Performance Partnership Grant (PPG).
Authority to Manage a Revolving Loan Fund Program. If a state or
tribes chooses to use its section 128(a) funds to capitalize a
revolving loan fund program, the state or tribe must have the authority
to manage the program, e.g., issue loans. If the agency/department
listed as the point of contact for the section 128(a) grant does not
have this authority, it must be able to demonstrate that another state
or tribal agency does have the authority to manage the RLF and is
willing to do so.
Section 128(a) grants are eligible for inclusion in the Performance
Partnership Grant (PPG). States and tribes may include section 128(a)
grants in their PPG. (69 FR 51756 (2004)) Section 128(a) funds used to
capitalize an RLF are not eligible for inclusion in the PPG.
Project Period. EPA regional offices will determine the project
period for each cooperative agreement. These may be for multiple years
depending on the regional office's grants policies. Each cooperative
agreement must have an annual budget period tied to an annual work
plan.
Demonstrating the Four Elements. As part of the annual work plan
negotiation process, states or tribes that do not have MOAs must
demonstrate that their program includes, or is taking reasonable steps
to include, the four elements described above. EPA will not fund, in
future years, state or tribal response program annual work plans if EPA
determines that these requirements are not met or reasonable progress
is not being made. EPA may base this determination on the information
the state or tribe provides to support its work plan, or on EPA's
review of the state or tribal response program.
Establishing and Maintaining the Public Record. Prior to funding a
state's or tribe's annual work plan, EPA regional offices will verify
and document that a public record, as described above, exists and is
being maintained.\10\
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\10\ For purposes of grant funding, the state's or tribe's
public record applies to that state's or tribe's response program(s)
that utilized the section 128(a) funding.
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States or tribes that received initial funding in FY03 and
FY04: FY06 requests will not be accepted from states or tribes that
fail to demonstrate, by the January 31, 2006 request deadline, that
they established and maintaining a public record. (Note, this would
potentially impact any state or tribe that had a term and condition
placed on their FY05 grant award that prohibited drawdown of FY05 funds
prior to meeting public record requirement.) States or tribes in this
situation will not be prevented from drawing down their prior year
funds, once the public record requirement is met, but will be
restricted from applying for FY06 funding.
States or Tribes that received initial funding in FY05: By
the time of the actual FY06 award, the state or tribe must demonstrate
that they established and maintained the public record (those states
and tribes that do not meet this requirement will have a term and
condition placed on their FY06 grant that prevents the drawdown of FY06
funds until the public record requirement is met).
Recipients receiving funds for the first time in FY06:
These recipients have one year to meet this requirement and may utilize
the section 128(a) grant funds to do so.
Demonstration of Significant Utilization of Prior Years Funding
During the allocation process, EPA headquarters places significant
emphasis on the utilization of prior years' funding. When submitting
your FY06 request, the following information must be submitted:
For those states and tribes with active Superfund VCP Core
or Targeted Brownfields Assessment cooperative agreements awarded under
CERCLA section 104(d), you must provide, by agreement number, the
amount of funds that have not been requested for reimbursement (i.e.,
those funds that remain in EPA's Financial Data Warehouse) and must
provide a detailed explanation and justification for why such funds
should not be considered in the funding allocation process.
For those states and tribes that received section 128
funds in FY03 and 04, you must provide the amount of FY03 and FY04
funds that have not been requested for reimbursement (i.e, those funds
that remain in EPA's Financial Data Warehouse) and must provide a
detailed explanation and justification for why such funds should not be
considered in the funding allocation process.
Note: EPA Regional staff will review EPA's Financial Database
Warehouse to confirm the amount of outstanding funds reported. It is
strongly recommended that you work with your regional counterpart to
determine the
[[Page 60517]]
amount of funds ``outstanding.'' In making this determination, EPA
will take into account those funds that have been committed through
an appropriate state or tribal contract, inter-agency agreement, or
similar type of binding agreement, but have not been requested for
reimbursement, i.e., that are not showing as ``drawn down'' in EPA's
Data Warehouse.
Demonstration of Need To Receive Funds above the FY05 Funding
Distribution
Due to the limited amount of funding available, recipients must
demonstrate a specific need when requesting an amount above the amount
allocated to the state or tribe in FY05.
Allocation System and Process for Distribution of Fund
EPA regional offices will work with interested states and tribes to
develop their annual work plans and funding requests. For Fiscal Year
2006, EPA will consider funding requests up to a maximum of $1.5
million per state or tribe. This limit may be changed in future years
based on appropriation amounts and demand for funding.
After the January 31, 2006 deadline, regional offices will submit
summaries of state and tribal requests to EPA headquarters. Before
submitting requests to EPA headquarters, Regional offices may take into
account additional factors when determining recommended allocation
amounts. Such factors include, but are not limited to, the depth and
breadth of the state or tribal program; scope of the perceived need for
the funding, e.g., size of state or tribal jurisdiction or the proposed
work plan balanced against capacity of the program, amount of prior
funding, and funds remaining from prior years, etc.
After receipt of the Regional recommendations, EPA headquarters
will consolidate requests and allocate funds accordingly.
Information To Be Submitted With the Funding Request
States and tribes requesting section 128 funds for FY06 must submit
the following information, as applicable, to their regional contact on
or before January 31, 2006 (Regions may requests additional
information, as needed):
For those states and tribes with prior Superfund VCP Core
or Targeted Brownfields funding awarded under CERCLA section 104(d),
provide, by agreement number, the amount of funds that have not been
requested for reimbursement (i.e., those funds that remain in EPA's
Financial Data Warehouse) and a detailed explanation and justification
for why such funds should not be considered in the funding allocation
process.
For those states and tribes that received an FY03 and/or
FY04 128 allocation, provide the amount of FY03 and/or FY04 funds that
have not been requested for reimbursement (i.e, those funds that remain
in EPA's Financial Data Warehouse) and a detailed explanation and
justification for why such funds should not be considered in the
funding allocation process.
For those states and tribes requesting amounts above their
FY05 allocation, provide an explanation of the specific need(s) that
triggered the request for increased funding.
All states and tribes requesting funds for FY06 must
submit a summary of the planned use of the funds with associated dollar
amounts. Please provide it in the following format, if possible:
----------------------------------------------------------------------------------------------------------------
Summary of intended use (example
Funding use Requested amount uses)
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``Establish or Enhance'' the four elements.. $XX,XXX --Develop a community involvement
process.
--Fund an outreach coordinator.
--Develop/enhance ordinances,
regulations, procedures for
response programs.
--Issue public notices of site
activities.
--Review cleanup plans and verify
completed actions.
Establish and Maintain the Public Record.... XX,XXX --Maintain public record.
--Create web site for public record.
--Disseminate public information on
how to access the public record.
``Enhance the Response Program or Cleanup XX,XXX --Hire additional staff for
Capacity''. oversight of brownfields cleanups.
--Attend training and conferences on
brownfields cleanup technologies
and other brownfields topics.
--Perform program management
activities.
--Negotiate/manage contracts for
response programs.
--Enhance program management and
tracking systems.
Site-specific Activities.................... XX,XXX --Perform 10 site assessments in
rural communities.
--Negotiate brownfields agreements/
voluntary cleanup contracts.
--Provide technical assistance to
federal brownfields grant
recipients.
--Develop and/or review QAPPs.
--Conduct cleanup activities at
brownfields sites.
--Prepare Property Profile Forms.
Environmental Insurance..................... XX,XXX --Review potential uses of
environmental insurance.
Revolving Loan Fund......................... XX,XXX --Create a cleanup revolving loan
fund.
------------------------------
Total Funding Requested................. XXX,XXX ....................................
----------------------------------------------------------------------------------------------------------------
General Funding Priorities
When EPA Regions negotiate individual state and tribal work plans,
it is anticipated that funding will be prioritized as follows:
Funding of program activities that establish and/or
enhance the four elements of a state or tribal response program and to
enable states and tribes to comply with the public record requirement,
including activities related to institutional controls. (States and
tribes that have established one or more of the four elements will not
be prejudiced in funding distributions if their work plan includes
activities that enhance the four elements. States with MOAs will not be
prejudiced in funding distributions if their work plan does not include
tasks related to establishing or enhancing the four elements.)
Activities that develop and maintain the public record.
Program development and implementation activities that
enhance the response program or the cleanup capacity of a state or
tribal response program.
[[Page 60518]]
Site-specific activities, as negotiated and approved by
EPA.
Funding for environmental insurance mechanisms.
Funding to capitalize brownfields cleanup revolving loan
funds.
EPA will target funding of at least $3 million per year for tribal
response programs. If this funding is not used, it will be carried over
and added to at least $3 million in the next fiscal year. It is
expected that the funding demand from tribes will increase through the
life of this grant program (authorized by Congress through FY2006), and
this funding allocation system should ensure that adequate funding for
tribal response programs is available in future years.
Terms and Reporting
Cooperative agreements for state and tribal response programs will
include programmatic and administrative terms and conditions. These
terms and conditions will describe EPA's substantial involvement
including technical assistance and collaboration on program development
and site-specific activities.
Progress Reports. In accordance with 40 CFR 31.40, state and tribes
must provide progress reports as provided in the terms and conditions
of the cooperative agreement negotiated with EPA regional offices.
State and tribal costs for complying with reporting requirements are an
eligible expense under the section 128(a) grant. As a minimum, state or
tribal progress reports must include both a narrative discussion and
performance data relating to the state's or tribe's accomplishments and
environmental outputs associated with the approved budget and workplan
and should provide an accounting of section 128(a) funding. If
applicable, the state or tribe must include information on activities
related to establishing or enhancing the four elements of the state's
or tribe's response program. All recipients must provide information
relating to establishing or, if already established, maintaining the
public record.
Reporting Requirements. Depending upon the activities included in
the state's or tribe's work plan, an EPA regional office may request
that a progress report include:
Information related to the public record. All recipients must
report information related to establishing or, if already established,
maintaining the public record, described above. States and tribes can
refer to an already existing public record, e.g., website or other
public database to meet this requirement.
For the purposes of grant funding only, and depending upon the
activities included in the state or tribe's work plan, this may
include:
A list of sites at which response actions have been completed
including:
Date the response action was completed.
Site name.
The name of owner at time of cleanup, if known.
Location of the site (street address, and latitude and
longitude).
Whether an institutional control is in place;
Explain the type of the institutional control in place
(e.g., deed restriction, zoning restriction, local ordinance, state
registries of contaminated property, deed notices, advisories, etc.)
Nature of the contamination at the site (e.g., hazardous
substances, contaminants, or pollutants, petroleum contamination, etc.)
Size of the site in acres.
A list of sites planned to be addressed by the state or tribal
response program including:
Site name and the name of owner at time of cleanup, if
known.
Location of the site (street address, and latitude and
longitude).
To the extent known, whether an institutional control is
in place;
Explain the type of the institutional control in place
(e.g., deed restriction, zoning restriction, local ordinance, state
registries of contaminated property, deed notices, advisories, etc.)
To the extent known, the nature of the contamination at
the site (e.g., hazardous substances, contaminants, or pollutants,
petroleum contamination, etc.)
Size of the site in acres.
Reporting environmental insurance. Recipients with work plans that
include funding for environmental insurance must report:
Number and description of insurance policies purchased
(e.g., type of coverage provided; dollar limits of coverage; category
and identity of insured persons; premium; first dollar or umbrella;
site specific or blanket; occurrence or claims made, etc.
The number of sites covered by the insurance.
The amount of funds spent on environmental insurance
(e.g., amount dedicated to insurance program, or to insurance premiums)
and the amount of claims paid by insurers to policy holders.
Reporting for site-specific assessment or cleanup activities.
Recipients with work plans that include funding for brownfields site
assessment or cleanup must complete the OMB-approved Property Profile
Form for each completed site assessment and cleanup.
Reporting for other site-specific activities. Recipients with work
plans that include funding for other site-specific related activities
must include a description of the site-specific activities and the
number of sites at which the activity was conducted. For example:
Number and frequency of oversight audits of licensed site
professional certified cleanups.
Number and frequency of state/tribal oversight audits
conducted.
Number of sites where staff conducted audits, provided
technical assistance, or conducted other oversight activities.
Number of staff conducting oversight audits, providing
technical assistance, or conducting other oversight activities.
Reporting for RLF uses. Recipients with work plans that include
funding for Revolving Loan Fund (RLF) must include the information
required by the terms and conditions for progress reporting under
CERCLA section 104(k)(3) RLF grants.
Reporting for Non-MOA states and tribes. All recipients without a
Voluntary Response Program MOA must report activities related to
establishing or enhancing the four elements of the state's or tribe's
response program. For each element state/tribes must report how they
are maintaining the element or how they are taking reasonable steps to
establish or enhance the element as negotiated in individual state/
tribal work plans. For example, pursuant to CERCLA section
128(a)(2)(B), reports on the oversight and enforcement authorities/
mechanisms element may include:
A narrative description and copies of applicable documents
developed or under development to enable the response program to
conduct enforcement and oversight at sites. For example: legal
authorities and mechanisms (e.g., statutes, regulations, orders,
agreements); policies and procedures to implement legal authorities;
and other mechanisms;
A description of the resources and staff allocated/to be
allocated to the response program to conduct oversight and enforcement
at sites as a result of the grant;
A narrative description of how these authorities or other
mechanisms, and resources, are adequate to ensure that: a response
action will protect human health and the environment; and be conducted
in accordance with applicable Federal and State law; and if the person
conducting the response action fails to complete the necessary
[[Page 60519]]
response activities, including operation and maintenance or long-term
monitoring activities, the necessary response activities are completed;
and
A narrative description and copy of appropriate documents
demonstrating the exercise of oversight and enforcement authorities by
the response program at a brownfield site.
Where applicable, EPA may require states/tribes to report specific
performance measures related to the four elements which can be
aggregated for national reporting to Congress. The regional offices may
also request other information be added to the progress reports, as
appropriate, to properly document activities described by the
cooperative agreement work plan. EPA regions may allow states or tribes
to provide performance data in appropriate electronic format. The
regional offices will forward progress reports to EPA Headquarters, if
requested. This information may be used to develop national reports on
the outcomes of CERCLA section 128(a) funding to states and tribes.
Dated: September 15, 2005.
Linda Garczynski,
Director, Office of Brownfields Cleanup and Redevelopment, Office of
Solid Waste and Emergency Response.
[FR Doc. 05-20823 Filed 10-17-05; 8:45 am]
BILLING CODE 6560-50-P