[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Notices]
[Pages 69637-69644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27473]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8742-3]
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, 2008 through January 31, 2009, 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 response programs. Instead, it is to supplement their
funding to increase their response capacity.
For fiscal year 2009, 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, 2008. EPA expects to
make non-competitive grant awards to states and tribes which apply
during fiscal year 2009.
ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA
Headquarters can be located at http://www.epa.gov/brownfields.
FOR FURTHER INFORMATION CONTACT: The U.S. EPA's Office of Solid Waste
and Emergency Response, Office of Brownfields and Land Revitalization,
(202) 566-2777.
SUPPLEMENTARY INFORMATION: Section 128(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), as
amended, authorizes a noncompetitive $50 million grant program to
establish and enhance state \1\ and tribal \2\ response programs.
Generally, these response programs address the assessment, cleanup, and
redevelopment of brownfields sites and other sites with actual or
perceived contamination. Section 128(a) cooperative agreements are
awarded and administered by the U.S. Environmental Protection Agency
(EPA) regional offices. This document provides guidance that will
enable states and tribes to apply for and use Fiscal Year 2009 Section
128(a) funds.
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\1\ The term ``state'' is defined in this document as defined in
CERCLA Section 101(27).
\2\ 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, No. 4, 2002,
are also eligible for funding under CERCLA 128(a).
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Requests for funding will be accepted from December 1, 2008 through
January 31, 2009. Information required to be submitted with the funding
request is on pages 13-15. States or tribes that fail to submit the
request in the appropriate manner may forfeit their ability to request
funds. First time requestors are strongly encouraged to contact their
Regional Brownfields Coordinator (see page 19) prior to submitting
their funding request.
Requests submitted by the January 31, 2009 request deadline are
preliminary; final cooperative agreement work plans and budgets will be
negotiated with the regional offices once final allocation
determinations are made. As in prior years, EPA will place special
emphasis on reviewing a cooperative agreement recipients' use of prior
128(a) funding in making allocation decisions.
States and tribes requesting funds are required to provide a Dun
and Bradstreet Data Universal Numbering System (DUNS) number with their
final cooperative agreement package. For more information, please go to
www.grants.gov.
The Catalogue of Federal Domestic Assistance entry for the Section
128(a) State and Tribal Response Program cooperative agreements is
66.817. This grant program is eligible to be included in state and
tribal Performance Partnership Grants.
Background
State and tribal response programs oversee assessment and cleanup
activities at the majority of brownfields sites across the country. The
depth and breadth of state and tribal response programs vary. Some
focus 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),\3\ Congress recognized the
accomplishments of state and tribal response programs in cleaning up
and redeveloping brownfields sites. Section 128(a) also provides EPA
with an opportunity to strengthen its partnership with states and
tribes.
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\3\ Section 128(a) was added to CERCLA in 2002 by the Small
Business Liability Relief and Brownfields Revitalization Act
(Brownfield Amendments).
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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 regional personnel will
be available to provide technical assistance to states and tribes as
they apply for and carry out Section 128(a) cooperative agreements.
Eligibility for Funding
To be eligible for funding under CERCLA Section 128(a), a state or
tribe must:
Demonstrate that its 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) \4\ with EPA;
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\4\ The legislative history of the Brownfields Amendments
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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And
Maintain and make available to the public a record of sites at
which
[[Page 69638]]
response actions have been completed in the previous year and are
planned to be addressed in the upcoming year, see CERCLA Sec.
128(b)(1)(C).
Matching Funds/Cost-Share
States and tribes are not required to provide matching funds for
cooperative agreements awarded under Section 128(a), with the exception
of the Section 128(a) funds a state or tribe uses to capitalize a
Brownfields Revolving Loan Fund under CERCLA 104(k)(3).
The Four Elements--Section 128(a)
Section 128(a) recipients that do not have a VRP MOA with EPA must
demonstrate that their response program includes, or is taking
reasonable steps to include, the four elements. Achievement of the four
elements should be viewed as a priority. Section 128(a) 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 brownfields 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 brownfields 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 cooperative agreement recipients conduct inventories of
brownfields sites in their communities or jurisdictions. EPA encourages
states and tribes to work with these cooperative agreement recipients
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.\5\ 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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\5\ 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.
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 brownfields 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.\6\
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\6\ 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 cooperative agreement 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
[[Page 69639]]
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 cooperative agreement 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 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.\7\
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\7\ 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 cooperative
agreement funds by states and tribes. In general, a state or tribe may
use a cooperative agreement to ``establish or enhance'' their response
programs, including elements of the response program that include
activities related to responses at brownfields sites with petroleum
contamination. Eligible activities include, but are not limited to, the
following:
Develop legislation, regulations, procedures, ordinances, guidance,
etc. that would establish or enhance the administrative and legal
structure of their response programs;
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);
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. EPA will not provide Section
128(a) funds solely for assessment or cleanup of specific brownfields
sites; site specific activities must be an incidental part of an
overall Section 128(a) work plan that includes funding for other
activities that establish or enhance the four elements;
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 cooperative agreement terms and conditions
applicable to RLFs awarded under Section 104(k)(3). Requirements
include a 20 percent match on the amount of Section 128(a) funds used
for the RLF, a prohibition on using EPA cooperative agreement 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; or
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.
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:
Conducting assessments or cleanups at brownfields sites (see next
section for additional information);
Oversight of response action;
Technical assistance to federal brownfields cooperative agreement
recipients;
Development and/or review of site-specific quality assurance
project plans (QAPPs);
Preparation and submission of Property Profile Forms; and
Auditing site cleanups to verify the completion of the cleanup.
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.
EPA will not provide Section 128(a) funds solely for assessment or
cleanup of specific brownfields sites; site specific activities must be
an incidental part of an overall Section 128(a) work plan that includes
funding for other activities that establish or enhance 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 brownfields site at CERCLA
101(39).
Absent EPA approval, 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 or operated 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); or
When the recipient would satisfy all of the elements set forth in
CERCLA section 101(40) to qualify as a bona fide prospective purchaser
except that the date of acquisition of the property was on or before
January 11, 2002.
Subgrants cannot be provided to entities that may be potentially
responsible parties (pursuant to CERCLA Section 107) at the site for
[[Page 69640]]
which the assessment or cleanup activities are proposed to be
conducted, except:
At brownfields sites contaminated by a controlled substance as
defined in CERCLA Section 101(39)(D)(ii)(I); or
When the recipient would satisfy all of the elements set forth in
CERCLA section 101(40) to qualify as a bona fide prospective purchaser
except that the date of acquisition of the property was on or before
January 11, 2002.
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
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 Sec.
101(39)(D)(ii)(II), are eligible and are 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 Sec. 104(k)(3) RLF.
General Programmatic Guidelines for 128(a) Grant Funding Requests
Funding authorized under CERCLA Section 128(a) is awarded through a
cooperative agreement \8\ 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
cooperative agreement recipient for Section 128(a) grant program is the
government to which a cooperative agreement is awarded and which is
accountable for the use of the funds provided. The cooperative
agreement recipient is the entire legal entity even if only a
particular component of the entity is designated in the cooperative
agreement award document.
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\8\ A cooperative agreement is an assistance agreement to a
state or a tribe that 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 the128(a) grant funds
requested will be used to capitalize a revolving loan fund for cleanup,
pursuant to 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
tribe chooses to use its 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 128(a) cooperative agreement 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) cooperative agreements are eligible for inclusion in
the Performance Partnership Grant (PPG). States and tribes may include
Section 128(a) cooperative agreements in their PPG. 69 Fed. Reg. 51,756
(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 cooperative agreement 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 VRP 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.\9\
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\9\ For purposes of cooperative agreement funding, the 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,
FY04, FY05, FY06 or FY07: Requests for FY09 funds will not be accepted
from states or tribes that fail to demonstrate, by the January 31, 2009
request deadline, that they established and are maintaining a public
record. (Note, this would potentially impact any state or tribe that
had a term and condition placed on their FY08 cooperative agreement
that prohibited drawdown of FY08 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 FY09
funding.
[[Page 69641]]
States or Tribes that received initial funding in FY08: By
the time of the actual FY09 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 FY09 cooperative agreement that prevents the
drawdown of FY09 funds until the public record requirement is met).
Recipients receiving funds for the first time in FY09:
These recipients have one year to meet this requirement and may utilize
the 128(a) cooperative agreement 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 request for FY09 funds, the following information must be
submitted:
For those states and tribes with Superfund VCP Core or
Targeted Brownfields Assessment cooperative agreements awarded under
CERCLA 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 FY03, FY04,
FY05, FY06 and/or FY07 Section 128 funds, you must provide the amount
of FY03, FY04, FY05, FY06 and/or FY07 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 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 FY08 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 FY08.
Allocation System and Process for Distribution of Fund
EPA regional offices will work with interested states and tribes to
develop their preliminary work plans and funding requests. Final
cooperative agreement work plans and budgets will be negotiated with
the regional office once final allocation determinations are made.
For Fiscal Year 2009, 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.
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 cooperative agreement program and this funding allocation
system should ensure that adequate funding for tribal response programs
is available in future years.
After the January 31, 2009 request 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 128(a) FY09 funds must submit the
following information, as applicable, to their regional contact on or
before January 31, 2009 (regions may request additional information, as
needed):
For those states and tribes with prior Superfund VCP Core
or Targeted Brownfields Assessment funding awarded under CERCLA 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. EPA will take into account those funds that have been
committed through an appropriate state or tribal contract, interagency
agreement, or similar type of binding agreement.
For those states and tribes that received an allocation of
FY03, '04, '05, '06 and/or '07 128(a) funds, provide the amount of
FY03, '04, '05, '06 and/or '07 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. EPA
will take into account those funds that have been committed through an
appropriate state or tribal contract, interagency agreement, or similar
type of binding agreement.
For those states and tribes requesting amounts above their
FY08 allocation, provide an explanation of the specific need(s) that
triggered the request for increased funding.
All states and tribes requesting FY09 funds must submit a
summary of the planned use of the funds with associated dollar amounts.
Please provide it in the following format:
------------------------------------------------------------------------
Summary of intended
Funding use Requested amount use
------------------------------------------------------------------------
Establish or Enhance the $XX,XXX (EXAMPLE USES)
four elements: 1. Timely inventory
survey and inventory of and prioritize
brownfields sites; 2. brownfields sites.
Oversight and enforcement develop a
authorities or other community
mechanisms; 3. Mechanisms involvement
and resources to provide process.
meaningful opportunities fund an
for public participation; outreach
and 4. Mechanisms or coordinator.
approval of a cleanup plan develop/
and verification and enhance ordinances,
certification that cleanup regulations,
is complete. procedures for
response programs.
issue
public notices of
site activities.
review
cleanup plans and
verify completed
actions.
[[Page 69642]]
Establish and Maintain the XX,XXX (EXAMPLE USES)
Public Record. maintain
public record.
create web
site for public
record.
disseminate
public information
on how to access
the public record.
Enhance the Response Program XX,XXX (EXAMPLE USES)
provide
oversight of site
assessments and
cleanups.
attend
training and
conferences on
brownfields cleanup
technologies &
other brownfields
topics.
update and
enhance program
management
activities.
negotiate/
oversee contracts
for response
programs.
enhance
program management
& tracking systems.
prepare
Property Profile
Forms/input data
into ACRES
database.
Site-specific Activities.... XX,XXX (EXAMPLE USES)
(amount requested should be develop
incidental to the workplan, QAPPs.
e.g., less than half of the perform
total funding requested). site assessments
and cleanups.
prepare
Property Profile
Forms/input data
into ACRES database
for these sites.
Environmental Insurance..... XX,XXX (EXAMPLE USES)
review
potential uses of
environmental
insurance.
Revolving Loan Fund......... XX,XXX (EXAMPLE USES)
create a
cleanup revolving
loan fund.
-------------------------------------------
Total Funding Requested. XXX,XXX
------------------------------------------------------------------------
Reporting of Program Activity Levels
States and tribes must report, by January 31, 2009, a summary of
the previous federal fiscal year's work (October 1, 2007 through
September 30, 2008). The following information must be submitted to
your regional project officer (if no activity occurred in the
particular category, indicate ``N/A''):
Number of properties enrolled in the response program
supported by the CERCLA 128(a) funding.
Number of properties that received a No Further Action
(NFA) documentation or a Certificate of Completion (COC) or equivalent,
AND have all required institutional controls in place.
Number of properties that received an NFA or COC or
equivalent and do NOT have all required institutional controls in
place.
Total number of acres associated with properties in the
second bullet above.
(OPTIONAL) Number of properties where assistance was
provided, but the property was NOT enrolled in the response program.
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) cooperative agreement. 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 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.
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., Web site or other
public database to meet this requirement.
For the purposes of cooperative agreement 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.
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 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
[[Page 69643]]
funding for environmental insurance must report:
Number and description of insurance policies purchased
(e.g., type of coverage provided; dollar limits of coverage; any
buffers or deductibles; 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).
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 provide information required by the OMB-
approved Property Profile Form for input into the Assessment Cleanup
and Redevelopment Exchange System (ACRES) database for each 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 cooperative agreements.
Reporting for Non-MOA states and tribes. All recipients without a
VRP 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:
[cir] Legal authorities and mechanisms (e.g., statutes,
regulations, orders, agreements);
[cir] 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 cooperative agreement;
A narrative description of how these authorities or other
mechanisms, and resources, are adequate to ensure that:
[cir] 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 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 brownfields 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.
Regional Brownfields Coordinators
------------------------------------------------------------------------
Address & phone
Region States number
------------------------------------------------------------------------
EPA Region 1, Diane Kelley.... CT, ME, MA, NH, One Congress Street,
RI, VT. Suite 1100, Boston,
MA 02114-2023, Phone
(617) 918-1424, Fax
(617) 918-1291.
EPA Region 2, Ramon Torres.... NJ, NY, PR, VI... 290 Broadway, 18th
Floor, New York, NY
10007, Phone (212)
637-4309, Fax (212)
637-4360.
EPA Region 3, Tom Stolle...... DE, DC, MD, PA, 1650 Arch Street,
VA, WV. Mail Code 3HS51,
Philadelphia,
Pennsylvania 19103,
Phone (215) 814-
3129, Fax (215) 814-
5518.
EPA Region 4, Mike Norman..... AL, FL, GA, KY, Atlanta Federal
MS, NC, SC, TN. Center, 61 Forsyth
Street, SW., 10th
fl, Atlanta, GA
30303-8960, Phone
(404) 562-8792, Fax
(404) 562-8439.
EPA Region 5, Deborah Orr..... IL, IN, MI, MN, 77 West Jackson
OH, WI. Boulevard, Mail Code
SE-4J, Chicago,
Illinois 60604-3507,
Phone (312) 886-
7576, Fax (312) 886-
7190.
EPA Region 6, Monica Chapa AR, LA, NM, OK, First Interstate Bank
Smith. TX. Tower at Fountain
Place, 1445 Ross
Avenue, Suite 1200,
(6SF-VB), Dallas,
Texas 75202-2733,
Phone (214) 665-
6780, Fax (214) 665-
6660.
EPA Region 7, Susan Klein..... IA, KS, MO, NE... 901 N. 5th Street,
Kansas City, Kansas
66101, Phone (913)
551-7786, Fax (913)
551-8688.
EPA Region 8, Dan Heffernan... CO, MT, ND, SD, 1595 Wynkoop Street
UT, WY. (EPR-B), Denver, CO
80202-1129, Phone
(303) 312-7074, Fax
(303) 312-6065.
EPA Region 9, Debbie Schechter AZ, CA, HI, NV, 75 Hawthorne Street,
AS, GU. SFD 9-1, San
Francisco,
California 94105,
Phone (415) 972-
3093, Fax (415) 947-
3520.
[[Page 69644]]
EPA Region 10, Susan Morales.. AK, ID, OR, WA... 1200 Sixth Avenue,
Suite 900, Mailstop:
ECL-112, Seattle,
Washington 98101,
Phone (206) 553-
7299, Fax (206) 553-
0124.
------------------------------------------------------------------------
Statutory and Executive Order Reviews: Under Executive Order 12866
(58 FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and is therefore not subject to OMB review. Because
this grant action is not subject to notice and comment requirements
under the Administrative Procedures Act or any other statute, it is not
subject to the Regulatory Flexibility Act (5 U.S.C. Section 601 et.) or
Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA)
(Pub. L. 104-4). In addition, this action does not significantly or
uniquely affect small governments. Although this action does not
generally create new binding legal requirements, where it does, such
requirements do not substantially and directly affect Tribes under
Executive Order 13175 (63 FR 67249, November 9, 2000). Although this
grant action does not have significant Federalism implications under
Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted
with states in the development of these grant guidelines. This action
is not subject to Executive Order 13211, ``Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001), because it is not a significant
regulatory action under Executive Order 12866. This action does not
involve technical standards; thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
Section 272 note) do not apply. This action does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. Section 3501 et seq.). 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. Since this grant action, when finalized, will contain legally
binding requirements, it is subject to the Congressional Review Act,
and EPA will submit its final action in its report to Congress under
the Act.
Dated: November 12, 2008.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of
Solid Waste and Emergency Response.
[FR Doc. E8-27473 Filed 11-18-08; 8:45 am]
BILLING CODE 6560-50-P