Underground Storage Tank Program
American Recovery and Reinvestment Act Assistance Agreement Guidance
'**
REEDVERY.COV
Guidance To Regions For
Implementing The LUST Provision Of The
American Recovery And
Reinvestment Act Of 2009
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
Washington, D.C. 20460
www.epa.gov/oust
EPA-510-R-09-003
June 2009
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Contents
Overview Of The LUST Provision Of The American Recovery And
Reinvestment Act Guidance 1
Why Is EPA Issuing This Guidance? 1
What Is In This Guidance? 1
When Does This Guidance Take Effect? 2
Requirements Of The LUST Provision Of The Recovery Act 3
How Does LUST Recovery Act Funding Differ From Annual LUST Funding? . 3
Who Is Eligible For LUST Recovery Act Assistance Agreements? 3
What Is The Available Funding? 3
What Activities Are Eligible? 3
What Are The Funding Priorities? 4
What Activities Are Ineligible? 4
How Will EPA Distribute The LUST Recovery Act Funds? 5
Will A State Have To Cost Share? 5
How Long May States Use The Funds? 6
Does Cost Recovery Apply? 6
State Recovery Act Reporting Requirements 7
What Are The LUST Recovery Act Program Performance Measures? 7
How Are These Terms Defined? 7
When Must States Report Their LUST Recovery Act Program
Performance Measures Results? 8
Are There Other State Recovery Act Reporting Requirements? 8
Where Must States Report These Results? 8
What Are The Data Quality Requirements For States? 9
What Are The Recordkeeping Requirements? 9
Assistance Agreement Provisions 10
Is There EPA-Wide Assistance Agreement Guidance? 10
What LUST Recovery Act Specific Terms And Conditions Must Appear
I n The Assistance Agreements With States? 10
What Other Terms And Conditions Apply? 11
Section 1512 Reporting 12
Davis Bacon Act 12
I nf rastructure 13
Buy American 13
Is A LUST Recovery Act Assistance Agreement Eligible For
Performance Partnership Agreements? 14
Is There A Model Funding Recommendation? 14
What Accounting Information Should Regions Use In IGMS? 14
What Are Other Assistance Agreement Details? 15
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Overview Of The LUST Provision Of The
American Recovery And Reinvestment Act Guidance
Why Is EPA Issuing This Guidance?
The U.S. Environmental Protection Agency (EPA), in consultation with states1,
developed this guidance in response to the American Recovery and Reinvestment Act
of 2009 (hereinafter "Recovery Act"). This program guidance will assist EPA Regional
underground storage tank (LIST) programs to negotiate and approve state leaking
underground storage tank (LUST) Recovery Act assistance agreements and work with
their EPA Regional grants management offices to expeditiously award funding to states.
The Recovery Act provides a supplemental appropriation of $200 million from the
LUST Trust Fund (Recovery Act funding) for LUST cleanup activities authorized by
section 9003(h) of the Solid Waste Disposal Act (SWDA). On February 18, 20092 and
April 3, 2009,3 the Office of Management and Budget (OMB) issued detailed guidances
to agencies on implementing the Recovery Act. OMB plans to issue additional
guidance that will assist in the implementation of Recovery Act activities. All recipients
will need to adhere to the requirements contained in future OMB Recovery Act
guidance. The Recovery Act carries with it a historic level of transparency, oversight,
and accountability that will help ensure taxpayer dollars are spent wisely and Americans
will see results for their investment.
This guidance applies to Recovery Act funded assistance agreements only, not
agreements funded through annual LUST appropriations. These LUST Recovery Act
assistance agreements are formula grants and are exempt from competition.4 Unless
superseded by this guidance, the provisions in existing LUST Trust Fund guidance,
policies, and practices also apply to the Recovery Act funded assistance agreements.
What Is In This Guidance?
This guidance describes what a state's assistance agreement must contain in
order for a state to comply with the requirements for LUST Recovery Act funding. This
guidance includes: funding uses and priorities; eligible applicants and activities;
ineligible activities; cost recovery; recipient reporting requirements; application of EPA-
wide guidance to the LUST program; and LUST-specific terms and conditions.
1 States as referenced throughout this document also include territories as described in the definition of "state" in
the Solid Waste Disposal Act.
2 See www.recovery.gov/files/Initial%20Recovery%20Act%20Implementing%20Guidance.pdf.
3 See www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-15.pdf.
4 See www.epa.gov/ogd/competition/5700 5Al.pdf. EPA Order 5700.5A1, 6.C.1 - Exempt from Competition
Policy.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
When Does This Guidance Take Effect?
This guidance is effective immediately. EPA must obligate LUST Recovery Act
resources by awarding assistance agreements, contracts, or interagency agreements
by September 30, 2010. However, for the purpose of job creation/retention, EPA
anticipates working with states to obligate funds in LUST Recovery Act assistance
agreements by July 17, 2009.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Requirements Of The LUST Provision Of The Recovery Act
How Does LUST Recovery Act Funding Differ From Annual LUST Funding?
There are five main legal differences in the LUST Recovery Act funds. Each of
these items is addressed in more detail in later sections of this guidance.
Cost Share - LUST Recovery Act funded assistance agreements are exempt from the
10 percent cost share required by SWDA section 9003(h)(7)(B).
Wage Rate Requirements - Certain LUST expenditures are subject to the prevailing
wage requirements as determined by the Department of Labor under the Davis Bacon
Act.5
Buy American - Certain LUST expenditures are subject to the Buy American provision
contained in section 1605 of the General Provisions of the Recovery Act.
Time Limits On Obligations And Expenditures - Unlike assistance agreements
funded with EPA's annual no year LUST appropriations, Recovery Act appropriations
must be obligated by EPA and expended by states within specified periods of time.
Unique Reporting And Tracking - There are unique reporting and funds tracking
requirements for Recovery Act funded assistance agreements.
Who Is Eligible For LUST Recovery Act Assistance Agreements?
These assistance agreements are only available to states that are eligible for
Recovery Act funding. The regulations that govern the award and administration of
LUST Recovery Act assistance agreements are the "Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments" set forth at 40 CFR Part 31,
http://www.access.qpo.qov/nara/cfr/waisidx 00/40cfr31 00.html.
What Is The Available Funding?
Of the $200,000,000 FY 2009 LUST Recovery Act appropriation, EPA will
obligate to states $190,700,000, or 95 percent, through assistance agreements.
What Activities Are Eligible?
The Recovery Act neither expands nor limits eligible uses of LUST funds under
section 9003(h)(7) assistance agreements, with the exception of prohibiting Recovery
5 See www. dol. gov/ESA/WHD/contracts/dbra. htm .
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Act funds from uses relating to casinos and other gambling establishments, aquariums,
zoos, golf courses, or swimming pools. The LUST Recovery Act assistance
agreements will be awarded for corrective action activities, those that are traditionally
funded by LUST cleanup dollars. The applicable provisions, set forth in RCRA Subtitle
I, section 9003(h) and identified in OSWER Directive 9650.10A, "LUST Trust Fund
Cooperative Agreement Guidelines", apply to states receiving funds under this program;
see http://www.epa.gov/OUST/directiv/d965010a.htm . LUST Recovery Act funding may
be used at a LUST site even if earlier stages of assessment or cleanup were funded
from other sources.
What Are The Funding Priorities?
In accordance with section 9003(h)(3), states must give priority to eligible LUST
sites that pose the greatest threat to human health and the environment. EPA wants to
ensure these funds are used effectively to achieve the program's goal of LUST
cleanups, while at the same time achieving the Recovery Act goals of maximizing job
creation/retention and providing economic, health, and environmental benefits to the
citizens of the United States and its territories. States may decide which sites best meet
these program priorities provided their determinations are consistent with the scope of
work and terms and conditions of their LUST Recovery Act assistance agreements.
The assistance agreements will fund several activities, such as:
• Shovel-ready projects (sites ready for assessment and cleanup) that are typically
orphaned or abandoned sites, where the owners/operators of the sites are
unknown or unable to pay, and
• Staff management and oversight activities that will leverage additional cleanups.
What Activities Are Ineligible?
As with annual LUST appropriations, LUST Recovery Act funds may not be used for
certain activities, such as:
• Leak prevention activities authorized by the Energy Policy Act of 2005, Title XV,
Subtitle B, described in the "Office of Underground Storage Tanks (OUST)
Program Guidance for FY 2008 Prevention Funding for Assistance Agreements
Awarded under the Leaking Underground Storage Tank (LUST) Trust Fund
Program," from Cliff Rothenstein, Director to UST/LUST Regional Division
Directors, Regions I - X, dated May 8, 2008
• Redevelopment activities (e.g., construction of a new facility, marketing, or
purchase of property)
• Replacement and repair of leaking tanks
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
• Removal of tanks, unless the tank removals are necessary to successfully
undertake or complete assessment or cleanup activities6
• Costs that are unallowable under OMB Circular A-87 (2 CFR Part 225)7
• Matching any other federal funds without specific statutory authority; see 40 CFR
31.24, www.access.gpo.gov/nara/cfr/waisidx 00/40cfr31 00.html
How Will EPA Distribute The LUST Recovery Act Funds?
LUST Recovery Act funding is awarded non-competitively under section
9003(h)(7) of the Solid Waste Disposal Act and is subject to an allocation process
developed by EPA, which provides at least 80 percent of the LUST Trust Funds to
states. EPA will award new assistance agreements for LUST Recovery Act funding
rather than amending LUST corrective action assistance agreements funded with
annual LUST appropriations. The Agency has established a process for allocating
funds to states based on such factors as cumulative number of confirmed UST
releases, number of federally regulated petroleum tanks, cleanups initiated, cleanups
completed, percentage of population using groundwater for drinking water, and number
of states with approved UST programs.
While Regions maintain some discretion in reallocating funds among states in
their Region, the Region may only reduce a state's allotment of LUST Recovery Act
funds if:
• The Region determines a state cannot effectively and expeditiously use the full
amount allotted that state to achieve LUST program and Recovery Act
objectives;
• The Region consults with OUST; and
• The Region documents these decisions and maintains that documentation for
future review.
Will A State Have To Cost Share?
No. As provided in Title VII of the Recovery Act, "Leaking Underground Storage
Tank Trust Fund Program," "none of these funds shall be subject to cost share
requirements under section 9003(h)(7)(B) of such Act."
6 October 15, 1999 memorandum from Sammy Ng, Acting Director, Office of Underground Storage Tanks, see
www.epa.gov/oust/rags/ngl01599.pdf.
7 See www.whitehouse.gov/omb/circulars/a087/a087-all.html.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
How Long May States Use The Funds?
The conditions of the assistance agreement will determine the date by which
states must expend resources. The terms of the assistance agreement shall be
determined at the time of award by the Regions. OUST recommends assistance
agreements be awarded on a two and one-half year performance and budget period
(e.g., 4/1/2009 to 9/30/2011). The budget and performance period may be extended
through no-cost extensions to allow work to be performed on eligible sites. Legally, the
funds remain available for expenditure until September 30, 2017. However, in the spirit
of rapid job creation, Regions should consider no-cost extensions only on a case-by-
case basis. Regions may only grant extensions after consultation with OUST. To
receive an extension, a state must submit adequate justification. Follow the appropriate
provisions in 40 CFR Part 31.
Does Cost Recovery Apply?
It does apply. For cost recovery, OSWER Directive 9610.10A, "Cost Recovery
Policy for the Leaking Underground Storage Tank Trust Fund," May 24, 1994, is fully
applicable to these assistance agreements; see
www.epa.gov/swerust1/directiv/d961010a.htm .
If states cost recover Recovery Act funds while their Recovery Act assistance
agreement is still in effect, the funds become program income and are to be added to
the Recovery Act agreement and used under the same terms and conditions as the
Recovery Act assistance agreement. Per 40 CFR 31.21 (f)(2) states must expend
program income before requesting additional Recovery Act funds from EPA. Per 40
CFR 31.50(c)(2) Regions may authorize states to retain any accrued program income
that remains unexpended when their Recovery Act assistance agreement is closed for
use under their existing LUST assistance agreement. If states cost recover Recovery
Act funds after their Recovery Act assistance agreement is closed, they must use the
recovered funds for activities authorized in their non-Recovery Act LUST program
cleanup assistance agreement.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
State Recovery Act Reporting Requirements
What Are The LUST Recovery Act Program Performance Measures?
There are eight LUST Recovery Act program performance measures. The
definitions of the performance measures are listed below.
Site Assessments Initiated
• Direct Site Assessments Initiated
• Indirect Site Assessments Initiated
Site Assessments Completed
• Direct Site Assessments Completed
• Indirect Site Assessments Completed
Cleanups Initiated
• Direct Cleanups Initiated
• Indirect Cleanups Initiated
Cleanups Completed
• Direct Cleanups Completed
• Indirect Cleanups Completed
How Are These Terms Defined?
• Direct - means a state funded the site work (e.g., drilling, lab work, corrective
action plan development) with LUST Recovery Act funds, regardless of the
funding source for the oversight. Typically, states have contractors perform such
work, although some states may conduct these activities with their own
staff/equipment. Note: To avoid double counting, any activity (e.g., site
assessment) counted as direct work should not be counted as indirect work.
• Indirect - means a state used LUST Recovery Act funds to pay for the oversight
of the site work, but the site work itself was not funded with LUST Recovery Act
funds. Oversight activities might include enforcement actions to compel the tank
owner to perform work or the review of corrective action reports. Note: To avoid
double counting, any activity (e.g., site assessment) counted as indirect work
should not be counted as direct work.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
• Site Assessments Initiated/Completed - the initiation and then the completion
of a determination of the extent and location of soil and groundwater
contaminated by a release from a federally regulated petroleum LIST, as required
by state site assessment rules and/or guidelines. Note: If multiple tiers of site
assessment are needed/performed at a given site, a state should only report the
assessment once the final tier is completed and may only count these activities
as one site assessment.
• Cleanups Initiated - see http://www.epa.gov/oust/cat/PMDefinitions.pdf
• Cleanups Completed - see http://www.epa.gov/oust/cat/PMDefinitions.pdf
For some sites, states will likely use multiple funding sources. For example, a
state may have used non-Recovery Act funds to initiate cleanup, and use Recovery Act
funds to complete the cleanup. If any amount of money spent on a site assessment or
cleanup is from Recovery Act funds, then the state shall report the site assessment or
cleanup as an accomplishment under the Recovery Act measures. Note: Since site
assessments initiated and cleanups initiated represent a point in time (rather than a
body of work performed over time), no such multiple funding situations should apply for
those reporting measures.
When Must States Report Their LUST Recovery Act Program Performance
Measures Results?
Each state must report the eight program performance measures reflecting
cumulative totals within 10 days after the end of each calendar quarter, starting with the
quarter ending June 30, 2009 and reporting by July 10, 2009.
Are There Other State Recovery Act Reporting Requirements?
Yes. Section 1512 of the Recovery Act requires recipients and subrecipients to
report financial and job-related measures as outlined in OMB regulations at 2 CFR Part
176.50. See Stimulus Grants Administrative Award Conditions for 40 CFR Part 31,
available in EPA's Integrated Grants Management System (IGMS) Administrative
Database (see National, Administrative). Recipients must report on the use of LUST
Recovery Act funds not later than 10 days after the end of each calendar quarter, as
outlined in section 1512(c) of the Transparency and Accountability provisions of the
Recovery Act and in accordance with OMB regulations at 2 CFR 176.50.
Where Must States Report These Results?
For the LUST Recovery Act Program Performance Measures, states must report
their results to EPA.
For section 1512 reporting requirements, all Recovery Act recipients must report
their financial and job-related results as identified in OMB's guidance.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
What Are The Data Quality Requirements For States?
Each of EPA's program and regional offices affected by the Recovery Act will
follow EPA's Office of Environmental Information's Management Action Plan (MAP I) to
certify that records maintained and performance results reported to information systems
for Recovery Act reporting are complete, accurate, and comply with the Agency's
Quality Policy and Information Quality Guidelines.
As with non-Recovery Act assistance agreements, states must develop and
implement quality assurance practices in accordance with EPA's Uniform Administrative
Requirements for Grants and Cooperative Agreements, 40 CFR Part 31.45. The
regulation requires developing and implementing quality assurance practices that will
"produce data of quality adequate to meet project objectives and to minimize loss of
data to out-of-control conditions or malfunctions"; see
www.epa.qov/oust/directiv/d96501 Oa.htm#sec11 .
What Are The Recordkeeping Requirements?
States must maintain accurate records in a readily accessible manner and/or
location documenting their expenditures of 2009 American Recovery and Reinvestment
Act funds in compliance with 40 CFR 31.42. When LUST Recovery funds are used for
direct site work, states must maintain records on a site-specific basis. LUST Recovery
Act funds must be tracked separately from other LUST funds.
In addition, when states use LUST Recovery Act funds for direct or indirect
assessment or cleanup work, they must maintain a record of locational information
(latitude/longitude). States must provide this information to EPA upon request.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Assistance Agreement Provisions
Is There EPA-Wide Assistance Agreement Guidance?
EPA's Office of Grants and Debarment (OGD) has developed Recovery Act
guidance8 that is applicable to all EPA assistance agreements. This guidance includes
requirements, such as: pre-award costs, Congressional and White House notifications,
intergovernmental review, types of awards (work plans), open grant findings, and
Governor's certification. Where applicable, the Agency's Recovery Act guidance will
supersede the provisions in existing LUST Trust Fund guidance, policies, and practices
not otherwise addressed in this guidance.
In addition, section 2(c) of President Obama's March 20, 2009 memorandum
"Ensuring Responsible Spending of Recovery Act Funds",9 requires EPA to decide,
prior to awarding LUST Recovery Act assistance agreements, that a state's use of
LUST Recovery Act funds is prudent and consistent with the Recovery Act by
affirmatively determining that a state receiving funds has a demonstrated or potential
ability to: (i) deliver programmatic results; (ii) achieve economic stimulus by optimizing
economic activity and the number of jobs created or saved in relation to the federal
dollars obligated; (iii) achieve long-term public benefits by improving the quality of life
and furthering environmental protection and provide long-term economic benefits; and
(iv) satisfy the Recovery Act's transparency and accountability objectives.
Finally, EPA encourages states to incorporate sustainable practices into their
Recovery Act activities, particularly with respect to greener cleanup practices and
environmental justice; see http://www.epa.qov/recovery/resources.html#f.
What LUST Recovery Act Specific Terms And Conditions Must Appear In The
Assistance Agreements With States?
Regions are required to include the following program terms and conditions in
their LUST Recovery Act assistance agreements.
To ensure expeditious use of LUST Recovery Act funds:
"The recipient shall obligate funds for contracts, subgrants, or similar
transactions for at least 35 percent of funds, and expend at least 15 percent
of funds within nine months of this award. EPA will consider the
recipient's failure to comply with this requirement as a material failure to
perform, which may warrant appropriate enforcement action under 40 CFR
31.43."
8 See www.epa.gov/ogaV.
9 See www.whitehouse.gov/the_press office/Memorandum-for-the-heads-of-Executive-Departments-and-Agencies-
3-20-097.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Note: The term obligate means that a state has entered into a legally binding
contract, subgrant, or other transaction that requires a state to pay or reimburse another
organization for service or products necessary to carry out the LUST Recovery Act
assistance agreement. For example, if a state has a contract that is structured for
incremental work, the obligation occurs when the work is actually ordered. The term
expend means an actual outlay of funds to liquidate obligations or to compensate state
personnel.
To ensure cost recovered LUST Recovery Act funds are properly utilized:
"If the recipient receives Recovery Act cost recovered funds after its
Recovery Act assistance agreement is closed, the recipient must use the
recovered funds for activities authorized in its non-Recovery Act LUST
program cleanup assistance agreement."
To ensure states acknowledge the statutory requirement to meet the applicable
Energy Policy Act provisions:
"The recipient understands that it is subject to requirements described in
current EPA guidelines implementing Subtitle B, Underground Storage
Tank Compliance Act, of Title XV of the Energy Policy Act that are effective
as of the date of this award."
Note: The Energy Policy Act of 2005 (EPAct) required any state receiving LUST
funding to conduct certain activities. That requirement applies to LUST Recovery Act
funds as well. To remain eligible for LUST funding, states must follow all EPAct
assistance agreement related provisions. These provisions include states' certifying
compliance/progress as part of their assistance agreement application, and Regions
consulting with OUST on states' EPAct implementation status before issuing assistance
agreements.
What Other Terms And Conditions Apply?
EPA's Office of Grants and Debarment has provided terms and conditions for 40
CFR Part 31 in the Agency's IGMS Administrative Database (see National,
Administrative) that, in most instances, apply to the LUST Recovery Act assistance
agreements. Regions may include their standard terms and conditions that are used for
the LUST cleanups assistance agreements. However, no new terms and conditions
shall be included, beyond those addressed in this guidance.
The following paragraphs provide program specific applications of these Agency
terms and conditions.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
Section 1512 Reporting
Based on OMB guidance, states must include a term and condition requiring the
reporting of information under section 1512 of the Recovery Act. OMB's interim final
regulations for implementing the Recovery Act, (2 CFR 176.20(c)) provide that EPA
"shall" take "appropriate" enforcement or termination action under 40 CFR 31.43 if
recipients of Recovery Act funds fail to comply with reporting requirements or other
terms and conditions. OMB's interim final regulations provide EPA with some discretion
in deciding what enforcement action, including not taking any action, is appropriate.
However, it is clear that OMB expects agencies to effectively address non-compliance
by recipients of Recovery Act funds and that enforcement or termination actions are to
be taken promptly if informal efforts to ensure compliance are not successful.
At the time of publication of this guidance, Section 1512 recipient reporting
guidance has not yet been issued. When it is issued, EPA will provide supplemental
guidance specific to LUST recipients as appropriate.
Davis Bacon Act
After consultation with the U.S. Department of Labor, EPA has determined that
for LUST Recovery Act assistance agreements, the Davis Bacon Act (DBA) prevailing
wage requirement applies when the LUST project includes:
• Installing piping to connect households or businesses to public water systems or
replacing public water system supply well(s) and associated piping due to
groundwater contamination,
• Soil excavation/replacement when undertaken in conjunction with the installation
of public water lines/wells described above, or
• Soil excavation/replacement, tank removal, and restoring the area by paving or
pouring concrete when the soil excavation/replacement occurs in conjunction
with both tank removal and paving or concrete replacement.
In the above circumstances, all the laborers and mechanics employed by
contractors and subcontractors will be covered by the DBA requirements for all
construction work performed on the site. Other LUST funded activities, such as site
assessments, in situ remediation, and soil excavation/replacement and tank removal
when not in conjunction with paving or concrete replacement, will normally not trigger
DBA requirements. However, if a state encounters a unique situation at a site (e.g.,
unusually extensive excavation) that presents uncertainties regarding DBA applicability,
the state must discuss the situation with EPA's project officer before authorizing work on
that site. The project officer must refer determinations to the award official.
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EPA's terms and conditions on DBA will require that states obtain, or require their
contractors or subcontractors obtain, appropriate wage determinations from Department
of Labor's (DOL) wage determination web site at www.wdol.qov and include the labor
standards clauses contained in 29 CFR 5.5, as well as other provisions applicable to
Recovery Act funds. To the extent that states contract for the activities described
above, states must include a term and condition requiring compliance with the DBA in
procurement contracts and sub-grants that include these activities. In addition, should
these procurement contractors and sub-grantees accomplish these activities through
the use of subcontracts or other lower tiered transactions, then these procurement
contractors and sub-grantees must establish an equivalent term and condition in all
such subcontracts and other lower tiered transactions.
Although states will ensure that contracts include appropriate wage
determinations and labor standards clauses, will monitor weekly payroll reports, and will
verify that laborers and mechanics are paid properly, EPA remains responsible for
overseeing compliance with the DBA. The Office of Grants and Debarment will issue
additional guidance on oversight of DBA compliance. In addition, if EPA receives a
Freedom of Information Act (FOIA) or other inquiry relating to the payment of Davis
Bacon wages, Regions must obtain documents as authorized by 40 CFR 31.42(e).
Infrastructure
EPA has determined that the term infrastructure refers to the substructure or
underlying foundation or network used for providing goods and services, especially the
basic installations and facilities on which the continuance and growth of a community,
state, etc., depend. Examples include roads, water systems, communications facilities,
sewers, sidewalks, cable, wiring, schools, power plants, and transportation and
communication systems. The Recovery Act provides funding for cleanup activities that
do not generally meet the definition of infrastructure. However, a limited amount of
funding under the program is occasionally used to install piping to connect households
or businesses to public water systems or replace public water system supply well(s) and
associated piping due to groundwater contamination. These connection/replacement
activities fall into the category of an infrastructure investment.
Buy American
EPA has determined that the Buy American provision contained in section 1605
of the General Provisions of the Recovery Act only applies to the following projects:
• Installing piping to connect households or businesses to public water systems or
replacing public water system supply well(s) and associated piping due to
groundwater contamination, or
• Construction related activities associated with site restoration, including paving or
concrete replacement.
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Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance
However, if a state encounters a unique situation at a site that presents uncertainties
regarding Buy American applicability, the state must discuss the situation with EPA's
project officer before authorizing work on that site. The project officer must refer
determinations to the award official.
Is A LUST Recovery Act Assistance Agreement Eligible For Performance
Partnership Agreements?
No. This financial assistance program is not eligible for inclusion in Performance
Partnership Assistance agreements under 40 CFR 35.133.
Is There A Model Funding Recommendation?
Yes. Regions are to use EPA's IGMS LUST Recovery Act Funding
Recommendation (FR) model to ensure consistency for all LUST Recovery Act
assistance agreements. The model FR is available in the IGMS Awards Working
Database under Funding Recommendation ("2L-992STIM4-0: ARRA Leaking
Underground Storage Tank Trust Fund"). Regions are to follow the Agency's directions
for copying the model FR.
What Accounting Information Should Regions Use In IGMS?
Treasury Symbol: 68-9/08196
Regional Site Codes for LUST Recovery Act (same as for LUST Cleanup):
0100G
0200G
0300G
0400G
0500G
0600G
0700G
0800G
0900G
1000G
Object Class: 41.88
PRC: 302D87E
Program Code: 2L - ARRA Leaking Underground Storage Tank Trust Fund
Program
Appropriation Code: F
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Fund Code: FS
Cost Category Codes: 7 - General Support and Management
E - Site Cleanup Actions
4 - Enforcement
Budget Fiscal Years: 2009/2010 (two-year appropriation)
NPMCode: D
What Are Other Assistance Agreement Details?
Catalog Of Federal Domestic Assistance (CFDA) Number
Regions are to use CFDA 66.805, Leaking Underground Storage Tank Program.
Statutory Authority
Solid Waste Disposal Act of 1976 (SWDA), as amended, section 9003(h); see
http://www.epa.gov/swerust1/fedlaws/sttlitxt.htm, American Recovery and Reinvestment
Act of 2009, (Public Law 111 -005).
Delegation Of Authority
Delegation 8-38 authorizes Regional Administrators to take all necessary actions
to approve, award, and administer assistance agreements with states using LUST
Recovery Act funds under section 9003(h).
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