FR Doc E9-27568

[Federal Register: November 17, 2009 (Volume 74, Number 220)]
[Notices]
[Page 59163-59172]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no09-53]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-SFUND-2009-0827; FRL-8980-6]

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 (EPA).

ACTION: Notice.

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SUMMARY: EPA will begin to accept requests, from December 1, 2009
through January 31, 2010, 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.

[[Page 59164]]

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 2010, 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, 2009. EPA expects to
make non-competitive grant awards to states and tribes which apply
during fiscal year 2010.

ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA
Headquarters can be located at 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 EPA's regional offices. This document provides guidance
that will enable states and tribes to apply for and use Fiscal Year
2010 section 128(a) funds.\3\
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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, Nov. 4, 2002,
are also eligible for funding under CERCLA section 128(a).
\3\ The Agency may waive any provision of this guidance that is
not required by statute, regulation, Executive Order or overriding
Agency policies.
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Requests for funding will be accepted from December 1, 2009 through
January 31, 2010. Requests received after January 31, 2010 will not be
considered for FY 2010 funding. Information required to be submitted
with the funding request is on pages 27-32. States or tribes that do
not 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 34) prior
to submitting their funding request.
Requests submitted by the January 31, 2010 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 recipient's use of prior
section 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, with the exception of funds used
to capitalize a revolving loan fund for brownfield remediation under
section 104(k)(3); or purchase insurance or develop a risk sharing
pool, an indemnity pool, or insurance mechanism to provide financing
for response actions under a State or Tribal response program.

I. 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) \4\, 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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\4\ 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.

II. 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 be a party to voluntary response program Memorandum
of Agreement (VRP MOA) \5\ with EPA;
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\5\ 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
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).

III. 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 section 104(k)(3).

IV. 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:
(1) 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

[[Page 59165]]

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.
(2) 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).
(3) 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 meaningful public participation,
at the local level, 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/community/policies.htm.

--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.

(4) 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.

V. 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.
A. 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.
B. 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\
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\7\ For further information on latitude and longitude
information, please see EPA's data standards Web site available at
http://iaspub.epa.gov/sor_internet/registry/datastds/
findadatastandard/epaapproved/latitudelongitude
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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 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.
C. 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.\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/policy/ic/index.htm

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[[Page 59166]]

VI. Use Of Funding

A. 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. In addition to the
requirement per CERCLA section 128(a)(2)(C)(ii) to obtain public
comment on cleanup plans and site activities, EPA strongly encourages
states and tribes to seek public input regarding the priority of sites
to be addressed and solicit input from local communities, especially
potential environmental justice communities, communities with a health
risk related to exposure to hazardous waste or other public health
concerns, economically disadvantaged or remote areas, and communities
with limited experience working with government agencies. 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.

B. 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).

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. As another example, states and tribal response
programs enhancement activities can include outreach to local
communities to increase their awareness and knowledge regarding the
importance of monitoring engineering and institutional controls. Other
``enhancement'' uses may be allowable as well.

D. 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.

E. 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.
In addition to the requirement per CERCLA section 128(a)(2)(C)(ii) to
obtain public comment on cleanup plans and site activities, EPA
strongly encourages states and tribes to seek public input regarding
the priority of sites to be addressed and solicit input from local
communities, especially potential environmental justice communities,
communities with a health risk related to exposure to hazardous waste
or other public health concerns, economically disadvantaged or remote
areas, and communities with limited experience working with government
agencies. 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 section
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; and
--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.

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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
which the assessment or cleanup activities are proposed to be
conducted, except:

F. 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).

G. 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 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 CERCLA section 104(k)(3).

VII. General Programmatic Guidelines for Section 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
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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\9\ 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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A. 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.
B. 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.
C. 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).
D. Authority to Manage a Revolving Loan Fund Program. If a state or
tribe chooses to use its secton 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) 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.
E. Section 128(a) cooperative agreements are eligible for inclusion
in the Performance Partnership Grant. States and tribes may include
section 128(a) cooperative agreements in their PPG. 69 FR 51,756
(2004). Section 128(a) funds used to capitalize an RLF or purchase
insurance or develop a risk sharing pool, an indemnity pool, or
insurance mechanism to provide financing for response actions under a
state or tribal response program are not eligible for inclusion in the
PPG.
F. 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.
G. 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.
H. 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

[[Page 59168]]

described above, exists and is being maintained \10\.
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\10\ For purposes of cooperative agreement 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 prior to
FY09: Requests for FY10 funds will not be accepted from states or
tribes that fail to demonstrate, by the January 31, 2010 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 FY09 cooperative agreement that
prohibited drawdown of FY09 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 FY10
funding.
States or Tribes that received initial funding in FY09: by
the time of the actual FY10 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 FY10 cooperative agreement that prevents the
drawdown of FY10 funds until the public record requirement is met).
Recipients receiving funds for the first time in FY10:
these recipients have one year to meet this requirement and may utilize
the section 128(a) cooperative agreement funds to do so.

I. 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 FY10 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
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 FY03, FY04, FY05, FY06,
FY07 and/or FY08 section 128(a) funds, you must provide the amount of
FY03, FY04, FY05, FY06, FY07 and/or FY08 funds that have not been
requested for reimbursement (i.e, those funds that remain in EPA's
Financial Data Warehouse). These funds will 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.''

J. Demonstration of Need To Receive Funds Above the FY09 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 FY09.

K. Allocation System and Process for Distribution of Funds

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 2010, 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, 2010 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.

VIII. Information To Be Submitted With the Funding Request

States and tribes requesting section 128(a) FY10 funds must submit
the following information, as applicable, to their regional contact on
or before January 31, 2010 (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 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). EPA will take into account these funds in
the allocation process.
--For those states and tribes that received FY08 or prior section
128(a) 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). EPA will
take into account these funds in the allocation process.

All states and tribes requesting FY10 funds must submit a summary
of the planned use of the funds with associated dollar amounts. Please
provide the request in the following format:

----------------------------------------------------------------------------------------------------------------
Summary of intended use
Funding use FY09 awarded FY10 requested (Example uses)
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements: $XX,XXX $XX,XXX
1. Timely survey and inventory of brownfields .............. .............. Inventory and
sites; prioritize brownfields sites.
2. Oversight and enforcement authorities or .............. .............. Develop/enhance
other mechanisms; ordinances, regulations,
procedures for response
programs.

[[Page 59169]]

3. Mechanisms and resources to provide .............. .............. Develop a community
meaningful opportunities for public involvement process.
participation; and Fund an outreach
coordinator.
Issue public notices of
site activities.
4. Mechanisms or approval of a cleanup plan .............. .............. Review cleanup plans
and verification and certification that and verify completed actions.
cleanup is complete.
Establish and Maintain the Public Record...... $XX,XXX $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.................. $XX,XXX $XX,XXX 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 (amount requested $XX,XXX $XX,XXX Develop QAPPs.
should be incidental to the workplan, e.g., Perform site
less than half of the total funding assessments and cleanups.
requested). Prepare Property
Profile Forms/input data into
ACRES database for these sites.
Environmental Insurance....................... $XX,XXX $XX,XXX Review potential uses
of environmental insurance.
Revolving Loan Fund........................... $XX,XXX $XX,XXX Create a cleanup
revolving loan fund.
----------------------------------------------------------------------------------------------------------------
Total Funding................................. $XXX,XXX $XXX,XXX Performance Partnership Grant?
Yes [square] No [square]
----------------------------------------------------------------------------------------------------------------

For those states and tribes requesting amounts above their FY09
allocation, a separate explanation of the specific need(s) and the
increased amount that triggered the request for that need(s) must be
provided in the format below:
---------------------------------------------------------------------------

\11\ A one time request is not likely to repeat whereas a
recurring charge is likely to periodically occur again.

----------------------------------------------------------------------------------------------------------------
Explanation of request(s) for funding One time \11\ request Explanation/anticipated
above FY09 award Amount or recurring? outcome
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements: $XX,XXX One Time [square] Explanation of need:
1. Timely survey and inventory of Recurring [square] Anticipated Outcome:
brownfields sites; 2. Oversight and
enforcement authorities or other
mechanisms; 3. Mechanisms and resources
to provide meaningful opportunities for
public participation; and/or 4.
Mechanisms or approval of a cleanup plan
and verification and certification that
cleanup is complete..
Establish and Maintain the Public Record. $XX,XXX One Time [square] Explanation of need:
Recurring [square]
.............. Anticipated Outcome:
Enhance the Response Program............. $XX,XXX One Time [square] Explanation of need:
Recurring [square]
.............. Anticipated Outcome:
Site-specific Activities (amount $XX,XXX One Time [square] Explanation of need:
requested should be incidental to the Recurring [square]
workplan, e.g., less than half of the
total funding requested).
.............. Anticipated Outcome:
Environmental Insurance.................. $XX,XXX One Time [square] Explanation of need:
Recurring [square]
.............. Anticipated Outcome:
Revolving Loan Fund...................... $XX,XXX One Time [square] Explanation of need:
Recurring [square]
.............. Anticipated Outcome:
----------------------------------------------------------------------------------------------------------------
Total Increase Requested............. $XX,XXX ....................... ............................
----------------------------------------------------------------------------------------------------------------

Reporting of Program Activity Levels
States and tribes must report, by January 31, 2010, a summary of
the previous federal fiscal year's work (October 1, 2008 through
September 30, 2009). 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 section 128(a) funding.
Number of properties that received a ``No Further Action''
(NFA)

[[Page 59170]]

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.

IX. 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.
A. 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 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. 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 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 input information required by the OMB-
approved Property Profile Form (PPF) 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

[[Page 59171]]

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 and 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, Alison Devine... NJ, NY, PR, VI... 290 Broadway, 18th
Floor
New York, NY 10007
Phone (212) 637-4158
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,
S.W, 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, Noemi Emeric- AZ, CA, HI, NV, 600 Wilshire Blvd,
Ford. AS, GU. Suite 1460
Mail Code SFD-1
Los Angeles,
California 90017
Phone (213) 244-1821
Fax (213) 244-1850
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. 601 et seq.) 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.
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. 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

[[Page 59172]]

submit its final action in its report to Congress under the Act.

Dated: November 5, 2009.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of
Solid Waste and Emergency Response.
[FR Doc. E9-27568 Filed 11-16-09; 8:45 am]

BILLING CODE 6560-50-P