Superfund Remedial Program
American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
Initial Guidance for Implementing the
Superfund Remedial Program Provisions of
the American Reinvestment and Recovery Act of 2009
U.S. Environmental Protection Agency
Office of Superfund Remediation and Technology Innovation (OSRTI)
Washington, D.C. 20460
OSWER Directive #9360.0-46
June 5, 2009
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
Contents
Section 1: General Information 1
.1 Purpose of the guidance 1
.2 Contents of the guidance 1
.3 Applicability of the guidance 2
.4 Responsible Officials in the Superfund Program 2
.5 Ensuring Accountability for Recovery Act Implementation 2
.6 Roles and Responsibilities of Other EPA Offices 3
.7 EPA Governance and Risk Management Activities 4
.8 Inspector General Activities 4
.9 Links to Other Information 5
Section 2: Superfund Remedial Program Provisions of the Recovery Act 6
2.1 Availability of Funds 6
2.2 Objectives of the Recovery Act Funding for the Superfund Remedial Program 6
2.3 Comparison to Regular Appropriations 7
2.4 Eligible Activities 7
2.5 Distribution of Recovery Act Funds 7
2.6 State Cost Share 7
2.6 Monitoring and Evaluating Recovery Act Implementation 8
Section 3: Superfund Recovery Act Communications and Reporting 9
3.1 Recovery Act Press Release Procedures 9
3.2 Recovery Act Award Notification Procedures 9
3.3 Public Communication Procedures 10
3.4 Recipient Reporting Requirements 10
3.5 EPA Reporting Requirements 11
3.6 Weekly Financial and Activity Reports 11
3.7 Agency and Program-Specific Plans 12
3.8 Performance Measures 12
3.9 Reporting and Tracking Systems 14
Section 4: Recovery Act Budget Execution Guidance for the Superfund Remedial
Program 16
4.1 Budget Structure and Coding 16
4.2 Allocating Recovery Act General Resources 17
4.3 Allocating Recovery Act Management and Operation Resources 17
4.4 Reprogramming of Recovery Act Funds 18
4.5 CERCLIS Planning 19
4.6 Projects that are Unable to Use Allocated Recovery Act Funds 20
4.7 Recovery Act Deobligations 21
4.8 Cost Recovery 21
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Section 5: Recovery Act Superfund Contracts, Interagency Agreements, and
Cooperative Agreements 22
5.1 Recovery Act Financial Award Vehicles 22
5.2 Contracts 22
5.3 Interagency Agreements and Interagency Assisted Acquisitions 23
5.4 Best Interest Reviews for Assisted Acquisitions 23
5.5 Direct Cite Programs 23
5.6 Cooperative Agreements 24
5.7 Superfund State Contract Payment Schedules 24
5.8 Socio-Economic Goals 24
5.9 Bona Fide Needs Rule 25
5.10 Infrastructure and Buy American Provisions 25
5.11 Davis Bacon Act 26
5.12 Funds-In Interagency Agreements for Federal Facility Oversight 26
Appendix A 27
Funding Award Notification Template
Appendix B 28
OMB Definition of Obligation and Outlay
Appendix C 29
Class Deviation Approval 3/9/09
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
Section 1 - General Information
1.1 Why is EPA issuing this guidance?
The U.S. Environmental Protection Agency (EPA) developed this guidance in response
to the American Recovery and Reinvestment Act of 2009 ("Recovery Act" or "Act") which
provides a supplemental appropriation of $600 million for Superfund remedial activities
authorized by the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA)1. The Recovery Act requires unprecedented levels of transparency, accountability,
and oversight to ensure that taxpayers know how, when, and where their tax dollars are being
spent. This program guidance is a resource to assist Headquarters and Regional Superfund
remedial program offices in the effective management of Recovery Act activities and to help
ensure that EPA expends the Recovery Act funds in an accelerated and accountable manner.
1.2 What is in this guidance?
This guidance provides information on the implementation requirements of the Act for
the Superfund remedial program, the communication and reporting processes related to Recovery
Act funds, enhancements to standard budget execution procedures, and funding award
implementation information.
The goal of this guidance, consistent with the Office of Management and Budget's
(OMB's) accountability objectives for all agencies, is to establish and clarify the requisite steps
the Superfund remedial program, in consultation with Regional acquisition offices, must take to
meet the following crucial accountability requirements of the Recovery Act:
Funds are awarded and distributed in a prompt, fair, and reasonable manner;
The recipients and activities related to all funds are transparent to the public and the
benefits of these funds are reported clearly, accurately, and in a timely manner;
Funds are used for authorized purposes and instances of fraud, waste, error, and abuse are
mitigated;
Projects funded under this Act avoid unnecessary delays and cost overruns; and
Program goals are achieved, including specific Superfund remedial program performance
measure outcomes.
1 This document provides guidance to Regional staff and states regarding how the Agency intends to interpret and
implement the American Recovery and Reinvestment Act of 2009. This document does not impose legally binding
requirements, nor does it confer legal rights, impose legal obligations, or implement any statutory or regulatory
provisions. This document does not change or substitute for any statutory or regulatory provisions. Any decisions
regarding a particular situation will be made based on the statute and the regulations, and EPA decision-makers
retain the discretion to adopt approaches on a case-by-case basis that differ from the guidance where appropriate.
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EPA's goal is to obligate all Recovery Act funds by the end of FY 2009 (statutory
deadline is 2010). Work conducted with Recovery Act funds will supplement the current
cleanup activity projected to occur using base appropriated program resources.
1.3 To whom does this guidance apply to?
The provisions of this guidance apply to all EPA offices involved in or affected by the
Superfund remedial activities funded by the Recovery Act. States should work with EPA
Regions to ensure funds are used consistent with the Act.
1.4 Who is responsible for ensuring the requirements in this guidance are met?
The National Policy Managers for the Superfund remedial program are the responsible
officials for ensuring that EPA implements and expends Recovery Act funds in accordance with
the requirements of the Recovery Act and the related procedures outlined in this guidance. In
Headquarters, the responsible official is the Director of the Office of Superfund Remediation and
Technology Innovation (OSRTI). In the Regions, the responsible officials are the Superfund
Program Division Directors.
On March 20, 2009, President Obama issued a memorandum, Ensuring Responsible
Spending of Recovery Act Funds, which establishes requirements for ensuring merit-based
awards, avoiding imprudent projects, and disclosing communications with lobbyists. All federal
personnel involved in Recovery Act implementation must closely review this memorandum and
take all necessary steps to ensure full compliance. The memorandum can be found at
http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-
Departments-and-Agencies-3-20-09/. On April 3, 2009, OMB issued an update to its initial
guidance, providing a second installment of government-wide guidance. The April guidance
supplements, amends, and clarifies the initial guidance. That memorandum can be found at
http://www.recovery.gov/sites/default/files/m09-15 .pdf.
1.5 How will the Superfund program ensure accountability for Recovery Act
implementation?
The Superfund program will ensure that the expenditure and monitoring of Recovery Act
funds is transparent and that appropriate, qualified, and certified staff oversee the use of
Recovery Act resources. Working with established Agency and Recovery Act guidelines, the
Superfund program will ensure that it monitors and reports Recovery Act resource utilization and
project progress in an effective and timely manner. The responsible officials for the Recovery
Act funding (the Director of OSRTI and the Regional Division Directors) will have timely and
regular meetings to assess implementation progress and resolve any issues related to Recovery
Act-funded projects. In addition, EPA will update personnel performance standards for Agency
management and staff to reflect Recovery Act management and oversight activities.
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
1.6 What are the roles and responsibilities of other EPA offices?
Several EPA offices are responsible for overseeing aspects of the Agency's Recovery Act
implementation to ensure that the Superfund remedial program meets the Act's requirements:
Office of Environmental Information (OEI) manages the information to support the goals
of the Recovery Act, including transparency, reporting, and accountability. OEI is
responsible for facilitating the transparency of information related to Recovery Act
activities, and ensuring information collection and proper dissemination.
EPA's Office of Inspector General (OIG) ensures that EPA manages its Recovery Act
funds economically and efficiently. The Act specifically authorizes EPA's OIG to
mitigate fraud, waste, error, and abuse in the use of Recovery Act funds.
Office of the Chief Financial Officer (OCFO) manages financial services, strategic
planning, Agency budgets, annual plans, and performance and accountability reporting.
Under the Act, OCFO has major responsibilities for risk management tied to the
allocation and distribution of Recovery Act funds. OCFO is responsible for accounting
for EPA's expenditures of these funds.
Office of Administration and Resources Management (OARM) directs the Agency's
acquisition management function, consistent with the Federal Acquisition Regulations
(Office of Acquisition Management- OAM). OARM also manages EPA's grants and
debarment activities (Office of Grants and Debarment-OGD) as well as the Agency's
human resource and facility management functions. OARM has developed the Agency's
procurement strategy for the Recovery Act to ensure that EPA awards and distributes the
funds in a prompt, fair and reasonable fashion. EPA has designated Craig E. Hooks,
Acting Assistant Administrator of OARM, as the Agency's Senior Responsible Official
(SRO). The SRO has responsibility and authority to coordinate Recovery Act activities
across Agency programs.
Office of Public Affairs (OP A) coordinates and approves all press events related to the
Recovery Act. They also shepherd press announcements through the OMB and White
House approval process.
Office of Congressional and Intergovernmental Affairs (OCIR) coordinates and
implements all Congressional Recovery Act notification activities.
Office of Enforcement and Compliance Assurance (OECA) assists other Federal agencies
in their timely compliance with NEPA, acquires other necessary EPA approvals for
Recovery Act funded actions, and assists with reporting and green principles
coordination.
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American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
1.7 What is EPA's internal structure for governance and risk management of Recovery
Act funds?
The Recovery Act (Division A, Title XV, Subtitle B, §1521) established the Recovery
Accountability and Transparency Board to coordinate and conduct oversight of covered funds
and to prevent fraud, waste, and abuse. OMB will support the Board in its oversight of Recovery
Act implementation and will work with agencies to meet the accountability objectives.
OMB's guidance sets out the requirement that agencies designate a senior accountable
official for Recovery Act activities. EPA has designated Craig E. Hooks, Acting Assistant
Administrator of OARM, as the Agency's Senior Responsible Official (SRO). The SRO has
responsibility and authority to coordinate Recovery Act activities across Agency programs. In
addition, EPA has established a stimulus steering committee, chaired by Susan B. Hazen, which
is organized into eight subcommittees. The following chart shows the steering committee
structure and the chair persons of each subcommittee. Each subcommittee includes an Office of
Solid Waste and Emergency Response (OSWER) representative.
EPA Stimulus Steering Committee
Agency Senior
Responsible Official
Craig E. Hooks
Steering Committee Chair
Susan B. Hazen
Congressional
Coordination
Sybc-aenmitte*
Jeyoe Frank,
On air
Finance and
Resources
Subcommittee
David Eloorn,
Chair
Inter agency
Agreements
Subcommittee
Howard
Corcoran.
Cha-
Contracts
Subcommittee
Chuck
Gherardin ,
Chair
Intef agency
Stibeoniimifie*
Gather ne
1
Reporting and
Tracking
Subcommittee
Mike F ynn.
Char
Performance
Measurement
Subcommittee
Will Andersen.
Chair
Communication
and Outreach
Subcommittee
Mike Thiem,
Chasr
1.8 How is the Inspector General involved with the Recovery Act funding?
The Recovery Act allocated $20 million for the OIG to carry out Agency oversight of the
$7.2 billion of Recovery Act funding allocated to EPA (including the $600 million allocated for
the Superfund remedial program). The OIG has developed an initial plan (March 2009) for
oversight activities and their funds are available for obligation through September 30, 2012.
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
The OIG will assess whether EPA is using Recovery Act funds in accordance with the
requirements and whether EPA is meeting the Act's accountability objectives. They will also
monitor EPA's progress in achieving program goals and ensure that EPA accurately tracks and
reports expenditure of Recovery Act funds. Their work is being closely coordinated with the
Recovery Accountability and Transparency Board.
Once EPA has awarded its Recovery Act funds, the OIG will focus on performance and
financial audits of the Recovery Act programs. This focus will include evaluating and auditing
EPA's use of the Recovery Act funds and assessing the accuracy of the Agency's reporting
information. The OIG will continue to take proactive actions to prevent mismanagement of
funds and will undertake investigations tied to allegations of fraud, waste, and abuse.
1.9 Where may I find more information about Recovery Act implementation activities?
More information on the Recovery Act and related guidance and implementation
activities can be found at the following web areas:
National Recovery Act Website: http://www.recovery.gov/
EPA Recovery Act Website: http://www.epa.gov/recovery/
OSRTI Recovery Act Website: http://www.epa.gov/superfund/eparecovery/index.html
Recovery Act Plan for the Superfund remedial program:
www. epa. gov/superfund/eparecovery.
The American Recovery and Reinvestment Act:
http://www.whitehouse.gov/the_press office/ARRA_public review/
OMB's Recovery Act guidance documents:
- Updated guidance (April 3, 2009)
http ://www.recovery. gov/sites/default/files/m09-15 .pdf
Initial guidance (February 18, 2009
http://www.recoverv.gov/files/Initial%20Recovery%20Act%20Implementing%20G
uidance.pdf
EPA Office of Inspector General initial plan for oversight:
http://www.epa.gov/oig/reports/2009/InitialEPAOIG StimulusPlan03-05-09.pdf
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
Section 2 - Superfund Remedial Program Provisions of the Recovery Act
2.1 How much Recovery Act funding is available for the Superfund remedial program?
The Recovery Act provides $600 million for Superfund remedial activities. In
accordance with the provisions of the Recovery Act, up to 3 percent may be retained by the
Agency for management and oversight purposes. As such, EPA will allocate $18 million to
internal EPA activities related to the management, oversight, and reporting of Superfund
Recovery Act funds, and will allocate $582 million to remedial cleanup activities at sites.
Recovery Act resources for Superfund remedial activities will be available for obligation
until September 30, 2010, and available for expenditure until September 30, 2017. OSRTI has
established an internal goal to obligate all remedial cleanup resources by September 30, 2009.
The Recovery Act management and oversight resources will be available for obligation until
September 30, 2011, and are available for expenditure until September 30, 2018. EPA will
incrementally allocate and obligate management and oversight resources during the three-year
obligation period (i.e., 2009 - 2011).
2.2 What are the objectives of the Recovery Act funding for the Superfund remedial
program?
The overall objectives for the use of Recovery Act funding for the Superfund remedial
program are to further cleanup at National Priorities List (NPL) sites, maximize job creation and
retention, and provide human health, environmental, and economic recovery benefits. EPA will
achieve these objectives by starting new cleanup projects, accelerating cleanups at projects
already underway, increasing the number of workers and activities at cleanup projects, and
returning affected sites to more productive use.
Cleanup activities at Superfund sites receiving Recovery Act funds may also yield
significant site-specific, non-environmental economic benefits, including improved site property
values and job opportunities. EPA will ensure that it conducts Recovery Act-related activities in
a manner that considers environmental justice at sites that suffer disproportionate environmental
impact to ensure that environmentally and economically distressed communities are protected.
The Superfund remedial program will also implement the Recovery Act activities in a
manner that creates an overall healthier environment and lays the groundwork for more efficient,
greener ways to clean up hazardous waste sites. The use of "green technology"2 can emphasize
low-carbon footprint technologies to lower green house gas emissions as well as provide other
substantial "green benefits" such as increased energy and water efficiencies through technology
and use of renewable resources; reduction of land and water contamination and air emissions;
and development of new technologies for broader applications. EPA will consider, to the extent
feasible and permitted by law, using green remediation practices, clean diesel technologies, and
anti-idling practices at Superfund projects receiving Recovery Act funding.
2 Green Remediation: Incorporating Sustainable Environmental Practices into Remediation of Contaminated
Sites US Environmental Protection Agency, Office of Solid Waste and Emergency Response, EPA 542-R-08-002
April, 2008. Link: http://www.cluin.org/greenremediation/
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2.3 How does Recovery Act funding for the Superfund remedial program differ from
annual Superfund funding?
There are two main differences between the Recovery Act remedial program funds and
the Superfund remedial program's regular, annual appropriations:
Unlike the Agency's annual Superfund appropriations which have no required
timeframe for obligation or expenditure, EPA must obligate the Recovery Act
appropriation by September 30, 2010 (Recovery Act, Division A, Title XVI, Subtitle
D, §1603) and expend Recovery Act funds by September 30, 2017 (September 20,
2018 for management and oversight resources).
The Recovery Act includes unique reporting and funds tracking requirements for
activities funded under the Recovery Act (e.g., jobs created, and more frequent
reporting).
2.4 What activities are eligible?
The Recovery Act neither expands nor limits eligible uses of Superfund remedial funds,
with the exception of prohibiting Recovery Act funds from uses related to casinos and other
gambling establishments, aquariums, zoos, golf courses, or swimming pools. Under the
Recovery Act, EPA will fund cleanup projects it traditionally funds with its annual
appropriations.
2.5 How will EPA distribute the Recovery Act funds?
EPA will distribute Recovery Act funding in a manner that promotes both a healthier
environment and jobs that benefit the environment. Recovery Act funding will support both new
start and ongoing Superfund remedial projects to provide immediate short and longer-term
health, environmental, and economic benefits. The Agency anticipates that Recovery Act funds
will support at least 50 NPL sites in 28 states across the country. A list of the sites anticipated to
receive Recovery Act funding is on the Superfund Recovery Act web area and can be found at:
http://www.epa.gov/superfund/eparecovery/sites.html.
Due to federal procurement regulations, the Agency does not release precise cost estimates
prior to financial awards. For projects funded with Recovery Act resources, as with projects
funded with regular appropriations, the Superfund program will use one of three types of
financial awards to implement remedial activitiescontracts, interagency agreements or
cooperative agreements. (See Section 5 for more information)
2.6 Will a state have to cost share?
Yes. The Recovery Act did not provide a waiver from the provision in the Superfund
statute (CERCLA §104(c)(3)(C)) that requires states to pay a 10 percent (or more) cost share for
all remedial actions conducted with federal Superfund appropriations.
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
In order to ensure that states will agree to satisfy the cost share and other CERCLA
requirements under a Superfund state contract (SSC) without delaying the use of Recovery Act
funds for Superfund remedial activities, EPA modified the timeframe requirements associated
with SSC cost share agreements. EPA's regulation normally requires that a state pay its cost
share upon completion of all activities within the scope of the SSC. Recognizing the economic
and budgetary constraints states currently face, EPA issued a class deviation to modify these
requirements. Under the class deviation, EPA can negotiate with SSC signatories to set a
mutually agreeable final payment date for all SSCs signed or amended from February 17, 2009,
through September 30, 2010. (See Section 5 for more information)
2.7 How will the Superfund remedial program monitor and evaluate the
implementation of the Recovery Act funds?
EPA Headquarters will review Recovery Act resource utilization and performance
progress on a regular basis. Headquarters will also discuss any concerns related to Recovery Act
resource utilization, activities, and progress with the Regions during established mid-year and
end-of-year Superfund remedial program work planning meetings.
Activity
Evaluate Recovery Act resource utilization and
performance progress
Re-allocate funds, if necessary
Complete obligation of Recovery Act Funds to all sites
(Internal OSRTI goal: September 30, 2009)
Projected Date
Monthly
Quarterly
September 3 0,2010
All EPA Recovery Act awards (i.e., cooperative and interagency agreements, and
contract work assignments or task orders) will include reporting requirements. The purpose of
these reports is to provide EPA with detailed project progress information in a manner consistent
with the reporting requirements identified in the Recovery Act (Division A, Title XV, Subtitle A,
§1512).
EPA will also conduct quarterly in-depth reviews to ensure Recovery Act recipients are
making sufficient progress with Recovery Act funds. These reviews will allow EPA to ensure
that recipients are expending Recovery Act funds quickly and prudently. Funds that EPA
identifies as being at risk of not being spent in a timely matter may be re-obligated to another
project in order to meet the statutory deadline of obligating all funds by September 30, 2010.
In order to monitor and preserve accountability for Recovery Act expenditures, the
Superfund remedial program will follow OEI's Management Action Plan, "Quality Assuring
EPA's ARRA Grants, Contracts, and Interagency Agreements".
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
Section 3 - Superfund Recovery Act Communications and Reporting
3.1 Now that the Administrator has announced the Superfund sites receiving Recovery
Act funding, what are the procedures for additional press releases related to
Recovery Act activities?
The Administrator announced on April 15, 2009 that EPA would be distributing
approximately $600 million to 50 Superfund sites; the announcement included a site list. With
the exception of three sites, the Regions issued press releases for all of the sites receiving
Recovery Act funds.
The process and template for subsequent press releases on Recovery Act activities is
currently under development and will be provided to the Regional Public Affairs Directors
(PADs) as soon as it is available. If Regions are interested in doing a press release on site-
specific Recovery Act activities they should contact OSRTI (Suzanne Wells at 703-603-8863,
wells.suzanne@epa.gov; and Lois Gartner at 703-603-8711, gartner.lois@epa.gov) and the
OSWER Communications Director (Marsha Minter at 202-566-0215, minter.marsha@epa.gov).
3.2 What notification procedures should the Regions follow when awarding Recovery
Act funding?
Prior to the funding of any Recovery Act awards including contracts, interagency
agreements (lAs), and cooperative agreements (but not including management and oversight
funds), EPA must notify the White House in advance of the award according to this process.
Note that the project must be ready to be funded when White House notification is made. The
template for Recovery Act financial award notifications can be found in Appendix A.
Monday Close of Business
Regional Recovery Act points of contact (POC) will send award notifications for contract
actions to OAM (Tim Farris) and award notifications for lAs and cooperative agreements to
OGD (Catherine Vass and Alexandra Raver) with a cc to OSRTI (James Woolford, Robin
Richardson, Elizabeth Southerland, and Phyllis Anderson).
Tuesday Noon
OARM completes a table for Recovery Act awards and submits that table to the White House
by noon. OARM copies OP A, OCIR, OCFO, Susan Hazen, the Regions, and Headquarters
program offices.
Thursday
If there is no feedback from the White House, the Recovery Act awards move to "stand by"
pending Congressional notification. Regional POCs will be notified by Thursday if there is a
problem. It is important to note that Congressional notification should be made prior to any
public notification.
Friday
If no problems have been identified, awards should be signed and obligations completed.
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3.3 How will EPA communicate Recovery Act information to the public?
On an ongoing basis, EPA will provide information on the performance, progress, and
accomplishments of Superfund-related Recovery Act remedial activities in a transparent fashion,
as outlined in the Agency and Recovery Act guidelines. The Agency will also continue to
publicize information regarding site activities as required by CERCLA.
Recovery Act progress information will be posted on the EPA Recovery Act web area at
www.epa.gov/recovery as well as on the Federal Recovery Act web area at www.recovery.gov.
The Superfund remedial program has also created its own web area, located at
www.epa.gov/superfund/eparecovery and will publicly post information on activities conducted
with Recovery Act funds.
In addition, site-specific information for all sites receiving Recovery Act funding is
available through individual site fact sheets located on the Superfund program web area at
http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm. EPA's Cleanups in My Community web
tool can be used to create maps of Superfund sites receiving Recovery Act resources. The
Cleanups in My Community tool can be accessed by using the instructions on the following
webpage: http://iaspub.epa.gov/Cleanups/.
Superfund Remedial Program Recovery Act Public Communications Flow
recovery.gov
epa.recovery.gov
epa.recovery.gov/
su pe rf u nd/e pa recove ry
Broad Detailed More Detailed
Information Information Information
'Exact Web Address: http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm
Site Factsheetson
epa.gov/superfund*
Site-Specific
Information
3.4 What reporting is required for recipients of Recovery Act funds?
The Recovery Act and OMB's guidance require extensive reporting from recipients of
Recovery Act funding. The Recovery Act defines "recipient" as any entity that receives
Recovery Act funds directly from the Federal Government (including Recovery Act funds
received through cooperative agreement or contract) other than an individual and includes a State
that receives Recovery Act funds. See Division A, Title XV, Subtitle A, § 1512 of the Recovery
Act.
Section 1512(f) of the Recovery Act requires recipient reporting to begin 180 days after
enactment and for reports to be submitted by recipients 10 days after the end of each calendar
quarter. This results in an initial statutory reporting deadline of October 10, 2009, with quarter
reports due 10 days after the end of each calendar quarter thereafter. OMB is currently working
10
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with the Agencies, including EPA, to determine the most appropriate method for collecting
information from the recipients. Guidance will be forthcoming. It is anticipated that detailed
reporting instructions will be made available at www.FederalReporting.gov no less than 45 days
before the October 10, 2009 reporting deadline.
3.5 What EPA reporting is required for Recovery Act activities and performance?
OMB's Recovery Act guidance sets out the schedule for Agency reporting requirements
under the Recovery Act. The following table provides a sampling of Agency level Recovery Act
reports.
Reporting Requirement
Funding Award
Notification Reports
Regional Submissions for
the Weekly Financial and
Activity Reports (see
Section 3. 6)
Weekly Financial and
Activity Reports (see
Section 3. 6)
Award-level Reporting (as
required for
USAspending.gov)
Agency-Wide and
Program-Specific
Recovery Act Plans
From
Regional
POC
Regions
OSRTI
TBD
OSRTI
To
OAM for contracts
(Tim F arris)
OGD for lAs and
cooperative
agreements
(Catherine
Vass/ Alexandra
Raver)
OSRTI (thru
CERCLIS web
module)
OSWER
TBD
OSWER
cc
James
Woolford,
Elizabeth
Southerland,
RobinH
Richardson,
Phyllis
Anderson
N/A
N/A
TBD
N/A
Projected Date
Immediate/ongoing
Weekly/ongoing
Weekly/ongoing
TBD
Draft: May 1, 2009
Final: May 15,2009
3.6 What is required for the EPA Weekly Financial and Activity Reports?
OMB's guidance requires all agencies receiving Recovery Act funds to submit weekly
financial and activity reports. These are broad-level reports that are posted on the federal
Recovery Act web area at http://www.recovery.gov/?q=content/agency-weekly-reports. The
reporting frequency and details may change slightly over time, reflecting the information needs
of the Administration and the public.
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The weekly financial reports provide total obligations and gross outlays to date (See
Appendix B for OMB's definitions of obligations and outlays). For EPA, the financial report is
developed by the Office of the Chief Financial Officer (OCFO) and the information is drawn
from the Agency's Integrated Financial Management System (IFMS). The weekly activity
reports provide a short bulleted list of the major activities taken to date and major planned
activities. "Major" actions include those of likely interest to senior government officials,
Congress, and the public. The Superfund weekly activity reports are developed by OSRTI,
cleared by the Agency and OMB, and then posted on Recovery.gov.
Currently, the Superfund weekly activity reports are at a broad program level. Once
Recovery Act funding is awarded and site activities are underway, OSRTI anticipates collecting
major activity information from the Regions on a weekly basis for inclusion in the report. A
template and process for the regional contributions to the weekly report is under development
and being tested. It is anticipated that the Regions will enter major site-specific activity
information each week into the Comprehensive Environmental Response, Compensation and
Liability Information System (CERCLIS) using a webform. The webform will be pre-populated
with Superfund site and Recovery Act program information already stored in CERCLIS. By
Monday of each week, the Regions will input information into the webform on any major
cleanup activities achieved the previous week and any major activities anticipated in the week
ahead. If there are no major activities that have occurred or are planned, then the Regions do not
need to enter any information in CERCLIS. On Tuesdays, Headquarters will compile the
regional contributions into the Superfund weekly activity report summary that will then undergo
EPA review and be released the following week to the public.
3.7 What are the Agency and Program-Specific Recovery Act plans?
Guidance issued by the Office of Management and Budget (OMB) requires programs
receiving funding under the Act to develop formal Agency and program-specific plans that
summarize planned implementation activities. Draft plans were due to OMB no later than May 1
and were finalized on May 15. The Agency and Superfund remedial program Recovery Act
plans are posted on recovery.gov.
3.8 Will the Superfund remedial program have reportable Recovery Act performance
measures?
Yes. The Superfund program will measure its Recovery Act performance using the eight
performance measures listed in the table on the following page. These measures will be reported
for the public on EPA's Recovery Act website (www.epa.gov/recovery).
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Performance Measure
Title
Total Number of Sites in
Receipt of Recovery Act
Funding
Total Number of Projects in
Receipt of Recovery Act
Funding
Number of Sites with New
Construction in Receipt of
Recovery Act Funding
Number of Projects with
New Construction in
Receipt of Recovery Act
Funding
Percentage of Recovery Act
Funding Obligated
Number of Projects
Receiving Recovery Act
Funding Achieving
Completion
Number of Sites Achieving
Construction Completion
(CC) with Recovery Act
Funding
Number of Sites Achieving
Human Exposure under
Control (HEUC) with
Recovery Act Funding
Source
CERCLIS
IFMS&
eFacts
CERCLIS
IFMS&
eFacts
CERCLIS
IFMS&
eFacts
CERCLIS
IFMS&
eFacts
IFMS
CERCLIS
CERCLIS
& eFacts
CERCLIS
& eFacts
Description/Definition
The total number of National
Priorities List (NPL) sites where
Recovery Act resources were
obligated.
The total number of projects at NPL
sites where Recovery Act resources
were obligated.
The total number of NPL sites where
Recovery Act resources were
obligated for new construction.
The total number of new construction
projects at NPL sites where Recovery
Act resources were obligated.
The amount of Recovery Act
resources obligated divided by the
total amount of Recovery Act funds.
The number of projects receiving
Recovery Act funding achieving
completion by the end of FY 2012.
(Completion of projects is defined as
those projects receiving Recovery Act
funds which achieve a CERCLIS
action for remedial action
completion or remedial design
completion as defined through the
Superfund Program Implementation
Manual)
The number of sites receiving
Recovery Act funding achieving
construction completion by the end
of FY 20 12.
(The current FY 2009 through FY
2012 CC GPRA targets for the
Superfund remedial program include
accomplishments anticipated at
Recovery Act funded sites)
The number of sites receiving
Recovery Act funding achieving
HEUC by the end of FY 20 12.
(The current FY 2009 through FY
2012 HEUC GPRA targets for the
Superfund remedial program include
accomplishments anticipated at
Recovery Act funded sites)
Reporting
Frequency
Monthly (5th
Business Day)
Monthly (5th
Business Day)
Monthly (5th
Business Day)
Monthly (5th
Business Day)
As needed
Monthly (5th
Business Day)
Monthly (5th
Business Day)
Monthly (5th
Business Day)
Reporting
Office
OSRTI
OSRTI
OSRTI
OSRTI
OCFO
OSRTI
OSKT:
OSRTI
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EPA will use the first six measures, which are new, for Recovery Act reporting purposes
only. The last two measures are based on existing Government Performance and Results Act
(GPRA) measures that EPA uses for traditional Annual Performance Reporting and will now
also use to track Recovery Act accomplishments. EPA chose all of the measures to reflect new
and continuing cleanup activities at Superfund sites receiving Recovery Act funding.
EPA will use the Annual Commitment System (ACS) to track performance for these
measures, using codes to be created specifically for this purpose (more guidance will follow
from OCFO). OSRTI anticipates that these ACS codes will be similar to the parallel codes
previously established for the EPA Quarterly Report (EQR). Until Headquarters provides further
instructions, Regions should continue to promptly enter their performance data into the
Comprehensive Environmental Response, Compensation, and Liability Information System
(CERCLIS) according to normal business operations. Headquarters will utilize CERCLIS data
to enter accomplishments into ACS for all Recovery Act accomplishments.
3.9 What structure has the Superfund remedial program put in place for tracking and
reporting Recovery Act funds?
Recovery Act funding for the Superfund remedial program will be tracked and reported
from two EPA databases. Financial data will be reported from the Integrated Financial
Management System (IFMS) and program data will be reported from CERCLIS. The primary
device used to automate reports, graphics, and charts for Superfund remedial program Recovery
Act information will be the OSWER Performance Assessment Tool (PAT) and Superfund
eFacts. The following diagram illustrates the flow of data between these systems to support
Superfund remedial program data moving to the EPA Recovery Act web area.
Superfund Remedial Program Recovery Act Data Flow
Superfund
eFacts
www.epa.recovery.gov
OSWER Performance
Assessment Tool
IFMS: This database will be the primary location of all financial information related to
Recovery Act funds. EPA has modified IFMS to contain the necessary budget structure
and account coding for FY 2009 Recovery Act funds (See Section 4 for more details on
the budget structure and account coding). Data for reporting actual obligation and
expenditure data will be pulled from IFMS.
CERCLIS: This is EPA's primary database to report data for NPL sites and non-NPL
Superfund sites. EPA has modified CERCLIS to track budget accounting codes related
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to Recovery Act data elements, including fund account coding and program priority flags.
The Superfund Comprehensive Accomplishment Plan (SCAP) reports in CERCLIS also
reflect new account coding. In addition, CERCLIS data may be used to populate new
eFacts reports, reports from OSWER's PAT, or ReportLink reports specifically designed
to track sites and projects receiving Recovery Act funds. More detail will follow as EPA
specifies additional job-related and progress-related requirements and procedures for
reporting.
Superfund eFacts: This tool will serve as the primary internal servicing resource tool for
organizing and reporting data on Recovery Act activities. Information will be extracted
from both IFMS and CERCLIS and used to populate eFacts to provide the required
Recovery Act reports. It is important to note that eFacts reports provide CERCLIS data
at a certain time (e.g., reports pulled on March 10th reflect accomplishments in the
database as of March 9th). A specific Recovery Act section in the Superfund eFacts
intranet web area will display frequently used charts, forms, and graphics to report the
performance measures previously noted in Section 3.8. Some of these charts will allow
site-specific drilldown capability to provide additional site detail. For additional
information on eFacts or to obtain intranet access to eFacts, contact Sheldon Selwyn at
703-603-8776, or selwyn.sheldon@epa.gov.
OSWER Performance Assessment Tool (PAT): This tool will serve as the primary
external servicing resource for organizing and reporting data on Recovery Act activities.
PAT is a central reporting mechanism for OSWER traditional performance data, which
collects information from OSWER program systems, and conforms it for uniform
reporting and data provisioning. OSWER has modified PAT to support not only
traditional OSWER reporting, but also for Recovery Act purposes. PAT will collect
Recovery Act measures data for Superfund, Brownfields, and Leaking Underground
Storage Tanks, then deliver that data to EPA staff and managers via a business
intelligence dashboard interface for analytic and reporting use. At this time OSWER is
developing PAT reporting tools to report Recovery Act site information for program
reporting measures to include sites achieving Construction Completion, Human Exposure
Under Control, and Site-Wide Ready for Anticipated Use. In addition, PAT will deliver
the same data to the Agency's Recovery Act reporting facility (currently under design) for
submission to OMB's Recovery.gov site.
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Section 4 - Recovery Act Budget Execution Guidance for the Superfund
Remedial Program
4.1 What is the budget structure and coding for the Superfund remedial program
Recovery Act funds?
To maximize the transparency of Recovery Act spending, agencies must separately track
Recovery Act apportionments, allotments, obligations, and expenditures. The following table
provides an outline of the budget structure and coding that EPA has established for Recovery Act
Superfund resources:
Recovery Act: Superfund Remedial Actions
Appropriation Code:
Fund Code:
Budget Fiscal Years:
NPM:
NPM Code:
PRC Codes:
Activities Codes:
Add-On Codes (positions 5-7 of Budget Org Field):
T
TS
2009/2010
OSWER
D
302DD2
C, D, E
Recovery Act: Reimbursable Superfund Remedial Actions
Appropriation Code: T
Fund Code: TRS
Budget Fi seal Years: 2009/2010
NPM: OSWER
NPM Code: D
PRC Codes: 302DD2
Activities Codes: C, D, E
Add-On Codes (positions 5-7 of Budget Org Field):
Recovery Act: Superfund Management and Oversight
Appropriation Code: B
Fund Code: BS
Budget Fi seal Years: 2009/2011
NPM: OSWER
NPM Code: D
PRC Codes: ZZZDJ8
Activities Codes: C, D, E
Add-On Codes (positions 5-7 of Budget Org Field): RSF
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4.2 How is the Superfund remedial program allocating Recovery Act: Superfund
Remedial Action resources?
OSRTI is responsible for allocating "Recovery Act: Superfund Remedial Actions" (Fund
Code: TS) to the Regions. By law, these resources are available for obligation until September
30, 2010 and are available for expenditure until September 30, 2017. OSRTI has an internal goal
to obligate all remedial cleanup resources by September 30, 2009. In order to identify and track
the allocation of TS funds, OSRTI has developed a Region-specific "FY 2009 Recovery Act
Remedial Action (RA) Funding Plan". This plan contains information on a site/project-specific
basis (site/RAT/ACT codes), including the total amount of funds planned for allocation to the
Regions during FY 2009, the actual allocated amounts, and the amounts remaining to be
allocated for the remainder of the year. Although the plan primarily pertains to funding RA
activity, it also supports a small number of pipeline (remedial design) activities in support of
remedial action projects. EPA will maintain and update the plan in subsequent years until the
Agency expends all TS funds. The plan does not include project obligations and expenditures
information; however, such information can be found elsewhere, as described in the following
sections.
The Recovery Act funding plan documents funding decisions and any later modifications
to those decisions. Throughout the year, OSRTI will monitor this plan in partnership with the
Regions to accommodate changing project circumstances and to adjust project-specific funding
decisions. Regions should immediately discuss any modifications to the plan with their
OSRTI/Assessment and Remediation Division (ARD) regional coordinator for
design/construction.
The Recovery Act RA Funding Plan will be updated continuously as necessary and be
reviewed by OSRTI management on a bi-weekly (i.e., twice monthly) basis. OSRTI
management will also review Superfund eFacts reports to monitor the financial status of each
project on the Recovery Act RA Funding Plan. Also, in addition to routine staff level interaction
with the Regions, OSRTI will use scheduled Superfund Remedial Program work planning
discussions with the Regions to assess progress in using Recovery Act resources in a timely and
efficient manner and meeting Superfund program and Recovery Act objectives
4.3 How is the Superfund remedial program allocating Recovery Act: Superfund
Management and Oversight resources?
OSRTI is also responsible for allocating "Recovery Act: Superfund Management and
Oversight" ("BS") resources to the Regions. These resources are available for obligation until
September 30, 2011. Because BS resources are for management and oversight purposes, they
will be allocated on a Region-specific rather than site-specific basis over a three year period.
Pursuant to the pending Program/Project Description Book narrative for the new Recovery Act
Program/Project "J8", Superfund management and oversight resources may be used to:
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Coordinate, monitor, and evaluate analytical, technical, and financial aspects of Recovery
Act funded Superfund remedial cleanups, including making site visits and overseeing
contracts, contract modifications, interagency agreements (lAs), and cooperative
agreements;
Provide liaison to states and communities affected by Recovery Act funded Superfund
remedial cleanups, including managing state cost share agreements (Superfund State
Contracts [SSCs] or cooperative agreements);
Provide high level review and analysis of project and financial information submitted to
EPA and reported to Agency management and the public (e.g., Recovery.gov);
Provide resources to states and tribes through support agency cooperative agreements to
support Recovery Act funded Superfund remedial cleanups; and
Modify existing IT systems to address collection and reporting requirements of Recovery
Act required data and information.
OCFO has subdivided the BS budget into three portions, to be allocated each of three
years. In FY 2009, OSRTI will reprogram the FY 2009 "BS" resource allotment to the Regions
based on the following methodology:
Each Region will first receive a fixed share (5%) of FY 2009 BS resources, based on the
presumption that each Region has a minimal BS requirement, regardless of the amount of
Recovery Act remedial resources it receives.
The remainder of "BS" resources will be allocated to each Region based on the total
amount of Recovery Act remedial construction resources it will receive based on the
OSRTI Recovery Act Remedial Construction Funding Plan.
Headquarters intends to retain this methodology for allocating subsequent years' BS
resources but minor adjustments will be considered based on regional utilization and changes in
regional plans.
4.4 How will Headquarters reprogram the funds to the Regions?
Based on the Recovery Act RA funding plan, OSRTI will reprogram TS resources from a
"9R" account in the Integrated Financial Management System (IFMS) to the appropriate Region
in the "R" (Remedial Action Site Allowance) or "P" (Pipeline Operations Site Allowance)
accounts, using the appropriate Recovery Act funding codes. The reprogramming comment field
will specify the amount of Recovery Act funds to be allocated to each site/project. Once these
funds are available in the Region through IFMS, the Region will, within 5 business days, enter
planning data into the CERCLIS financial transaction screens corresponding to the Recovery Act
RA Funding Plan. Before OSRTI reprograms TS resources to a Region, OSRTI will consult
with the Regional Budget Coordinator to determine into which Budget Object Class (BOC) to
reprogram the resources. Once the Region receives its TS resources in IFMS, it may shift these
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resources across BOCs as necessary, but may not cross Budget Organizations or Site Allowances
without first consulting with the OSRTI Budget Planning and Evaluation Branch (BPEB) budget
contact.
OSRTI will also reprogram BS resources from another "9R" account in IFMS to the
appropriate Region pursuant to the M&O methodology described in the previous section. As
noted in the table above, OSRTI will reprogram all BS resources to the "ZZZDJ8" PRC and will
use the "RSF" add-on code in the 5-7 positions of the Budget Organization field of the IFMS
account number.
A Region may choose which Budget Object Class (BOC) and which Allowance Holder
should receive BS resources ("A" or "O" account). "A" account resources are for extramural
(BOCs 36, 37, 41) remedial program purposes only and their use must be planned out in
CERCLIS. Payroll (BOC 10) and site travel resources (BOC 28) should be reprogrammed to the
"0" account, though other BOCs may also be used in the "0" account. Although OSRTI expects
that most BS resources will be used site-specifically, BS resources may also be used non-site-
specifically but they must directly support implementation of Recovery Act Superfund remedial
program activities. Regions may only use BS resources for costs incurred from 3/15/2009
forward. Site travel resources may only be used at sites that are receiving TS funds.
The Regional Finance Management Office (FMO) and the Superfund Regional Program
Office (RPO) will consult on how to allocate BS resources within the Region, and each
Superfund Regional Budget Coordinator will send its OSRTI BPEB budget contact (copying the
FMO) a request to reprogram the BS resources using the appropriate Budget Organization and
Budget Object Class codes. Once the Region receives its BS resources in IFMS, it may shift
these resources across BOCs as necessary but may not cross Budget Organization codes without
consulting with the OSRTI BPEB budget contact first.
4.5 How will the Superfund remedial program use CERCLIS for planning Recovery
Act resources?
The CERCLIS database will be used to plan obligations of TS and BS resources.
Appropriate revisions to CERCLIS planning screens and reports contain the required account
code structures.
Regions will plan the use of TS resources in CERCLIS in generally the same manner as
any other Superfund site allowance resources. Once OSRTI identifies its funding decisions to a
Region, OSRTI will assign the "TS" designation in the program priority initiative field to each
site identified as a recipient of Recovery Act funds. Then, as described above, the Region will
have 5 business days to enter obligation planning data into the financial transaction screen in
accordance with the stimulus RA funding plan, selecting the "TS" fund code and the "Approved"
planned budget funding code. Note that CERCLIS will not allow a Region to plan any site-
specific obligations of TS resources unless the TS designation is used in the program priority
initiative field.
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Although EPA has budget authority to obligate TS funds for two fiscal years, OSRTFs
goal is for Regions to plan and obligate all Recovery Act resources by the end of FY 2009.
Thus, all planned obligation data should reflect budget FY 2009. Regions must also assure that
CERCLIS start date data for specific projects (identified by RAT/ACT codes) correspond with
the Recovery Act RA Funding Plan (i.e., projects defined under the Recovery Act as new starts
or ongoing must be accordingly coded in CERCLIS).
Management and Oversight (Fund Code: BS) resources have significantly more coding
requirements than TS resources. The BS resources not only use different fund and PRC codes
(akin to EPM resources), but also require the use of add-on codes in the Budget Organization
field of the IFMS account number that override the Site Allowance code. CERCLIS has been
modified to automatically assign the appropriate PRC and add-on codes to any planned
obligation that used the BS fund code.
Because TS resources are two-year appropriations, both the BFY (budget fiscal year) and
EFY (end fiscal year) must be included in the IFMS account number. CERCLIS generated
account numbers do not include the EFY, and therefore procurement officials must take care to
add the appropriate data ("2010") into the EFY field (or alternatively "20092010" into the BFY
field, as appropriate) in procurement request forms and when entering commitment and
obligation information into IFMS.
Likewise, since BS resources are three-year appropriations, both the BFY (budget fiscal
year) and EFY (end fiscal year) must also be included in the IFMS account number.
Procurement officials must take care to add the appropriate data ("2011") into the EFY field (or
alternatively "20092011" into the BFY field, as appropriate) in procurement request forms and
when entering commitment and obligation information for BS resources into IFMS.
Once a Region obligates Recovery Act resources, it must make a corresponding
adjustment to its approved planned obligation financial transaction data in CERCLIS. Planning
data may not be modified at the time of resource commitment.
4.6 What happens if a project is unable to use its allocated Recovery Act resources?
Regions must notify their OSRTI/ARD Remedial Action (RA) funding coordinator
immediately of any obstacle to OSRTFs goal of obligating all TS resources by September 30,
2009 or of any potential change to a project funding amount identified through the Recovery Act
RA funding plan. Timely notification will enable the Regions and OSRTI to work together to
overcome the obstacles or, if mitigation of the impediment is not possible, to re-evaluate the
Recovery Act RA funding plan.
If it is determined that a project is unable to use any portion of its allocated Recovery
Act resources, then the Region will promptly notify the OSRTI Office Director and reprogram
those funds back to OSRTI for appropriate reallocation nationally based on a revised Recovery
Act RA funding plan.
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4.7 How will EPA handle Superfund remedial program Recovery Act deobligations?
On September 30, 2010, budget authority to incur new obligations against the Recovery
Act appropriation of TS resources expires. Once this budget authority ends, no new obligations
can be incurred against the appropriation. Expired obligated balances (unliquidated obligations)
and unobligated balances will remain available until September 30, 2017, to liquidate obligations
(expended funds) that were properly incurred prior to September 30, 2010.
Consequently, any Recovery Act funds deobligated after September 30, 2010, will not be
available for use by the Superfund program to incur new obligations. Likewise, expenditures of
Recovery Act funds should not be included in any reclassification of special account resources
unless they can be recertified and obligated before September 30, 2010. OSRTI will establish
periodic reviews of unliquidated obligations and a deadline for deobligations and
reclassifications of Recovery Act funds.
With the exception of budget object class changes and financial transaction corrections,
all deobligations of TS funds are modifications to the Recovery Act RA funding plan, and
Regions must consult with their OSRTI regional coordinators before initiating such actions.
Regions must recertify all deobligated TS funds to the TS "9R" account (unless otherwise
directed by OSRTI), and OSRTI will reallocate these resources based on the revised Recovery
Act RA funding plan.
4.8 How are cost recovery funds treated?
For cost recovery purposes, the Recovery Act is a supplemental appropriation and thus
should be treated the same as the annual Superfund remedial program appropriation. Any cost
recovery funds must be returned to the Trust Fund for future appropriations as required by 26
U.S. C. 9507 or, if future work is anticipated at the site, placed into a special account, under the
authority of CERCLA 122(b)(3). Unlike annual Superfund remedial program "no-year"
appropriations, by law Recovery Act funds must be obligated by September 30, 2010, and
therefore, expenditures of stimulus funds should not be included in any reclassification of special
account resources unless they can be recertified and obligated before September 30, 2010 and
liquidated by September 30, 2017. There are no stimulus-specific coding requirements for
recoveries of EPA costs incurred using Recovery Act funds or for the establishment of special
accounts using such recoveries.
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Section 5 - Recovery Act Superfund Contracts, Interagency Agreements, and
Cooperative Agreements
5.1 What type of financial award vehicles will the Superfund Remedial Program use for
Recovery Act resources?
The support for Superfund remedial program activities under the Recovery Act will occur
through three types of financial awards: EPA contracts, interagency agreements, and cooperative
agreements. The following table identifies the type of financial vehicle in conjunction with the
anticipated recipient and description.
Type Of Financial Vehicle
EPA Response Action Contracts (RACs),
Site-Specific Contracts, and Emergency
and Rapid Response Services (ERRS)
Contracts
Interagency Agreements (IAs) with the
US Army Corps of Engineers (USAGE),
primarily Interagency Assisted
Acquisitions (lAAs)
Cooperative Agreements (CAs)
Type Of
Recipient /
Beneficiary
Contractors
Contractors
States, Political
Subdivisions,
or Tribes
Description
Use of existing competitively
awarded contracts and some new
awards to site-specific contracts
Use of lAs with existing
competitively awarded contracts and
some new awards
All CAs with States, Political
Subdivisions, or Tribes are non-
competitively funded
Each of these vehicles has unique programmatic and administrative procedures as
described in the following sections. For acquisition or contract guidance, please refer to the
contract guidance issued by the Office of Acquisition Management (OAM).
http://oamintra.epa.gov/files/OAM/recoveyact.pdf For IA and CA guidance, there are separate
guidance documents prepared for each by the Office of Grants and Debarment (OGD).
(http://epa.gov/ogd/).
5.2 What type of contracts will be used for Superfund remedial Recovery Act activities?
Typically, Superfund remedial activities are conducted using Response Action Contracts
(RACs), site-specific contracts, or task orders awarded under the Emergency and Rapid
Response Services (ERRS) contracts. Information regarding other vehicles for Superfund
remedial work appears in subsequent sections.
The majority of contracts supporting work under the Recovery Act are currently in place,
although some new awards are anticipated (i.e., site-specific contracts). When adding funding to
an existing contracting vehicle, Regions will need to issue a new tasking document to the
contractor to ensure segregation of Recovery Act activities and funds and to comply with OMB's
contract guidance. Regions may "cross-over" to another Region to obtain additional contract
capacity, although the Region should consult the headquarters RAC liaison in OSRTI prior to
making a RAC "cross-over" decision.
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5.3 What type of Interagency Agreements (lAs) and Interagency Assisted Acquisitions
(lAAs) will be used for Superfund remedial Recovery Act activities?
Superfund remedial program activities conducted through interagency agreements (lAs)
are typically agreements with the U.S. Army Corps of Engineers (USAGE) for their support in
the acquisition and management of remedial contracts (i.e., lAAs). For ongoing work, the
Regions may chose to amend existing lAs, provided that the amendment is within scope of the
existing lAs, or award new lAs. If the Region intends to use an IA amendment, that IA
amendment must show how the Recovery Act work will be segregated and tracked. Regions
should work with the USAGE to ensure site-specific monthly progress reports adequately
segregate Recovery Act funded activities and associated costs.
The Interagency Agreement Shared Service Center (IASSC) Web site,
http://intranet.epa.gov/ogd/IASSC/main/index.htm contains the applicable IA forms and terms
and conditions for lAs with the USAGE.
5.4 Do Best Interest Reviews need to be completed for Assisted Acquisitions?
USACE's IAs utilizing contractors for remedial work are considered interagency assisted
acquisitions (lAAs). Only new lAs with contracting require best interest determinations.
OSWER requested a class best interest determination, which OAM approved on April 7, 2009.
OAM has provided a cover memorandum outlining the roles and responsibilities of project
officers and contracting officers in implementing the determination. The class determination and
the form for Contracting Officer (CO) review can be found on the IASSC Web site.
Additionally, as part of the class determination, Regions must continue to follow the justification
and documentation requirements of OSRTI's April 3, 2008 policy on selecting another federal
agency to acquire and manage remedial contracts.
http://www.epa.gov/superfund/cleanup/pdfs/rdra/iagpolicy2008.pdf
5.5 How does Recovery Act funding relate to the Direct Cite Program?
Obligation and payment of Superfund Remedial Program work through Interagency
Assisted Acquisitions (lAAs) with the USAGE follow a unique procedure.
http://www.epa.gov/superfund/cleanup/pdfs/rdra/payment.pdf.
Under the "EPA/U.S. Army Corps of Engineers Payment Process, Direct Cite/Revised
Reimbursement Methods," issued March 21, 1990, the USAGE receives the contractor invoices
and after review and approval, submits them to EPA's Cincinnati Financial Management Center
for payment directly from EPA's appropriation. A copy of the payment request is sent by
USAGE to the Remedial Project Manager for review. The USAGE staff time, or in-house costs,
is reimbursed by EPA through the standard intergovernmental payment process. Regions may
use the Superfund Remedial Program Recovery Act appropriation (TS) for both revised
reimbursable and direct cite costs.
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5.6 How will Cooperative Agreements be used for Superfund remedial Recovery Act
activities?
Superfund Recovery Act remedial activities may also be conducted through cooperative
agreements with states, tribes or political subdivisions. EPA's Office of Grants and Debarment
(OGD) has issued guidance regarding the use of Recovery Act funds under grants and
cooperative agreements. This guidance, which includes standard terms and conditions for
Recovery Act funds, can be found on the OGD website: http://epa.gov/ogd. IGMS will use
program code 2S to track all Recovery Act-related CAs.
5.7 Will the EPA allow extended Superfund State Contract payment schedules?
Yes. On March 9, 2009, EPA issued a class deviation to permit an additional option for
the timing of EPA's invoice to the state for final payment under the state's payment schedule.
The two options for EPA to invoice a state for its final payment, with the exception of any
change orders and claims handled during reconciliation of the SSC, are: (1) upon completion of
activities in the site-specific statement of work (SOW) (currently permitted), or (2) after the final
payment date as negotiated by the signatories in the SSC (additional option), whichever is later.
This class deviation will permit signatories to an SSC to negotiate a payment schedule that
extends beyond the completion of activities in the site-specific SOW. The payment schedule
negotiated should generally not exceed five years after completion of SOW activities.
While EPA issued this class deviation to facilitate Recovery Act implementation, it is
only available for SSCs signed or amended from February 17, 2009 through September 30, 2010,
at which time the deviation will expire (See Appendix C). Note: Although a state cost share is
required for remedial actions under both the SSC and a cooperative agreement, under a
cooperative agreement states generally satisfy the cost share requirement without making
payments to EPA. Therefore, this guidance does not address a state payment schedule under a
cooperative agreement.
5.8 Are there socio-economic goals for the Recovery Act funds?
EPA Regions are encouraged to award Superfund remedial program appropriations,
including Recovery Act funds, to contractors meeting EPA's socio-economic goals. The
Administration and the Agency would like to see overall improvement in this area; therefore,
Regions should keep the utilization of such contractors in mind when determining their
Superfund remedial program contracting strategy.
EPA anticipates the use of standard reporting tools for tracking progress in achieving
socio-economic goals, including the Federal Procurement Data System-New Generation (FPDS-
NG). Thus, obligations using the EPA treasury symbol established for the Superfund remedial
program's Recovery Act appropriation will be used to track and report socio-economic contract
utilization. Obligations under both EPA contracts and USAGE contracts will be entered into
FPDS-NG using the EPA treasury symbol by the respective agencies and credited towards
EPA's socio-economic goals. Obligations through cooperative agreements are not reported in
FPDS-NG and, thus, are not included in EPA's socio-economic calculations.
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Superfund Remedial Program American Recovery and Reinvestment Act Guidance - OSWER 9360.0-46
5.9 How does the Bona Fide Needs Rule apply to Recovery Act Funds?
All funds appropriated under the Recovery Act must be obligated by September 30, 2010
to meet bona fide needs that arose prior to that date. If the Bona Fide Needs Rule is satisfied, the
work may extend beyond September 30, 2010, unless the funds are used for severable services.
If Superfund remedial activities are deemed to be non-severable, the contractor may perform
work and costs may be incurred after September 30, 2010. See Section 4 of this Guidance for
more details on OSRTI's goals for timely obligations and expenditures.
The Bona Fide Needs Rule applies differently to Superfund cooperative agreements and
EPA contracts and interagency agreements (lAs). For Superfund cooperative agreements, the
award of the cooperative agreement meets a bona fide need to provide financial assistance to the
eligible recipient that arises on the day of the award. The fact that the cooperative agreement
recipient performs the work funded by EPA after September 30, 2010 does not implicate the
"severable versus non-severable services" concept that applies to contracts and lAs. If a
contractor's services for Superfund remedial activities under EPA contracts or lAs are non-
severable, the Agency may obligate funds prior to September 30, 2010 even though the
contractor performs all or part of the service after that date.
The severable versus non-severable services analysis may be made on a case by case
basis in consultation with the Office of General Counsel.
5.10 How do the Infrastructure and Buy American provisions apply to Recovery Act
funds?
Division A, Title XVI, §1605 of the Recovery Act (Buy American) requires that
Recovery Act funded projects for the construction, alteration, maintenance or repair of a public
building or public work, use only iron steel and manufactured goods produced in the United
States. OMB has implemented this provision for direct procurement in Federal Acquisition
Regulation; FAR Case 2009-008, American Recovery and Reinvestment Act of 2009 (the
Recovery Act)Buy American Requirements for Construction Material, 48 CFR Part 25,
Subpart 25.6. The Buy American provision as applied to assistance agreements is implemented
in 2 CFR Part 176, Subpart B and the provisions contained therein are uploaded into IGMS as
terms and conditions for all Recovery Act assistance agreements. Under Superfund cooperative
agreements, projects that are subject to the Buy American provision include, but are not limited
to, projects for the construction, alteration, maintenance, or repair of caps, wells, reservoirs,
water distribution systems, and water treatment plants. The Recovery Act provides some
exceptions to the Buy American requirement. The exceptions involve complex issues that are
addressed in the OMB regulations and are beyond the scope of this guidance.3
Some Superfund remedial activities conducted by States and local governments pursuant
to a CERCLA 104(d) cooperative agreement may be considered infrastructure investments for
purposes of the Recovery Act under the Agency's interpretation of the term "infrastructure."
3 The Buy American provision, however, will not be applied if doing so is inconsistent with United States
obligations under international agreements. Additionally, EPA, in certain circumstances, may waive the Buy
American provision.
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Examples include, but are not limited to, projects where the principal purpose is to construct a
cap to be directly incorporated into a public building or public work project as defined in 2 CFR
176.140(a)), or to extend a municipal water supply to residents and businesses affected by
contaminated drinking water. If a project is an infrastructure investment, the grantee must
comply with Division A, Title XVI, §1602 (Preference for Quick-Start Activities). If the grantee
is a State or local government and the project is an infrastructure investment, then the grantee
must also comply with Division A, Title XV, Subtitle A, §1511 (Certifications). Also, if the
grantee is a State or local government conducting a project that constitutes an infrastructure
investment, there are additional reporting requirements for the infrastructure investment imposed
under Division A, Title XV, Subtitle A, §1512(c)(3)(E). The Recovery Act terms and conditions
uploaded into IGMS define infrastructure investment and set forth the reporting, preference for
quick-start activities, and certification requirements applicable to infrastructure investments. The
Recovery Act does not require infrastructure investment certification or reporting requirements
for contracts and I As.
5.11 How does the Davis Bacon Act apply?
As a practical matter, the Davis Bacon Act applies to expenditures of Superfund
Recovery Act funds to the same extent as it does to remedial activities funded from EPA's
annual Superfund appropriation. Division A, Title XVI, §1606 of the Recovery Act (section
1606). Section 1606 requires that contractors and subcontractors on projects funded directly by
or assisted in whole or in part with Recovery Act funds pay prevailing wages as determined by
the Secretary of Labor under the Davis Bacon Act. However, pursuant to CERCLA, section
104(g)(l), the Davis Bacon Act already applies to "construction repair, or alteration work"
funded with annual Superfund appropriations.
Detailed information on how EPA applies the Davis Bacon Act to Superfund Remedial
work is found in the January 27, 1992, memorandum entitled "Superfund Guidance on the
Applicability and Incorporation of the Davis Bacon Act and Service Contract Acts into
Superfund Acquisitions" ("1992 Davis Bacon Guidance"). EPA will continue to insert the Davis
Bacon clauses required by FAR Part 22 when applicable into Agency contracts funded with
Recovery Act appropriations. EPA will include the term and condition that OMB prescribed at 2
CFR 176.190 for compliance with the Davis Bacon wage rate requirements in section 1606 of
the Recovery Act for Superfund cooperative agreements awarded with Recovery Act funds.
5.12 How are Funds-In Interagency Agreements handled for Federal Facility Oversight?
EPA's Federal Facility program oversees Superfund cleanups at certain properties owned
and operated by other federal Agencies. EPA may receive Recovery Act funds from other
federal Agencies to support increased oversight requirements for accelerated cleanup actions at
their facilities. These funds would be transferred to EPA through lAs for Regional Oversight
Contract support and/or EPA intramural expenses. Funds-In agreements for Federal Facilities
are outside of the scope of this guidance. Regions should work with their Federal Facility
Restoration and Reuse Office (FFRRO) counterparts for additional information.
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Appendix A
Funding Award Notification Template
Funding Notification Version 1.3
Agency Name:
Submission Date:
Submitter Name:
Submitter
Contact Info:
Funding
Notification
Amount
(020) Enivronmental
Protection Agency
OX/OX/2009
Name
E-mail
Award Type
Contract
Interagcy Agreement
Cooperative Agreement
CFDA
Program
Number
CFDA
Program
Title
Program
Description
Superfund
Superfund
Superfund
US Indicator
Y-us
Y-US
Y-US
Place of
Perform
ance
County
Place
of
Perfor
mance
State
Place of
Performa
nee Zip
Code
Performa
nee
Congress
ional
District
Program
Source/Treas
ury Account
Symbol :
Account Code
Source/Treasury
Account
Symbol :
SubAccount
Code
For clarification, the table categories are:
Agency Name
Submission Date
Submitter Name
Submitter Contact Info
Funding Notification Amount
Award Type
CFDA Program Number (if applicable)
CFDA Program Title (if applicable)
Program Description
US Indicator
Place of Performance County
Place of performance State
Place of Performance Zip Code
Place of Performance Congressional District
Program Source/Treasury Account Symbol: Account Code
Program Source/Treasury Account Symbol: SubAccount Code (Optional)
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Appendix B
The table below defines Obligations and Gross Outlays for purposes of the reporting
required in the OMB guidance. Please note that the title "Total Expenditures" has now been
updated to Total Gross Outlays (As noted in OMB Circular A-l 1, Gross Outlays are also called
Disbursements).
Term
Definition
Obligations, as adjusted
A binding agreement that will result in outlays,
immediately or in the future. Budgetary resources must
be available before obligations can be incurred legally.
This term includes obligations as well as recoveries of
the current and prior year obligations. Recoveries of
prior year obligations are reported as budgetary
resources in budget execution reporting rather than as
obligations. Here is a link to the definition in OMB
Circular A-l 1.
http://www.whitehouse.gOv/omb/circulars/a 1 l/current_
year/s20.pdf
Gross Outlays, as adjusted
Amount of obligations paid. Includes payments in the
form of cash (currency, checks, or electronic fund
transfers) and in the form of debt instruments (bonds,
debentures, notes, or monetary credits) when they are
used to pay obligations. This term includes obligations
paid as well as refunds of payments made in current
and prior years. Refunds collected from prior year
obligations that have been paid are reported as
budgetary resources in budget execution reporting
rather than as gross outlays. Here is a link to the
definition in OMB Circular A-l 1.
http://www.whitehouse.gov/omb/circulars/al l/current_
year/app_fpdf
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Appendix C
MEMORANDUM March 9, 2009
SUBJECT: Class Deviation from 40 C.F.R. §35.6805(j)(3)
FROM: Howard F. Corcoran, Director
Office of Grants and Debarment
TO: James E. Woolford, Director
Office of Superfund Remediation and Technology Innovation (OSRTI)
This responds to your request (copy attached) for a class deviation from the requirements of
40 C.F.R. §35.6805(j)(3) under the regulation, "Subpart O Cooperative Agreements and
Superfund State Contracts for Superfund Response Actions". This provision requires EPA to
invoice a State for its final payment, with the exception of any change orders and claims handled
during reconciliation of the Superfund State Contract (SSC), upon completion of activities in the
site-specific Statement of Work (SOW). Specifically, OSRTI is requesting an exception from
these requirements to add an additional option for when EPA invoices a State for its final
payment under a SSC for all SSCs signed or amended from February 17, 2009 - September 30,
2010. An exception would permit EPA to invoice a State for its final payment on a final
payment date as negotiated by the signatories to the SSC.
As explained in your request, OSRTI believes a deviation is necessary because States will
need to match 10 percent (or more) of the American Recovery and Reinvestment Act of 2009
(ARRA) funding amount ($600 million), in addition to the normally appropriated funding
(approximately $600 million for FY 2009 and FY 2010) for Superfund remedial cleanup.
During the current recession, this places a huge burden on the States to pay their cost share
match by completion of activities in site-specific SOWs for Superfund remedial clean-ups. If
States cannot provide the assurances for matching funds, EPA may not be able to obligate the
ARRA's $600 million by September 30, 2010.
The requirements in 40 C.F.R. §35.6805(j)(3) are regulatory and not a statutory mandate.
Under these circumstances, to expedite the award of the ARRA funds, I am approving your
request. If you have any questions, please contact me at (202) 564-1903.
cc: Lauren Willis, OGC
Steve Pressman, OGC
Janet Kasper, OIG
Doug Ammon, OSRTI
Angelo Carasea, OSRTI
Barbara McDonough, OSRTI
Phyllis Anderson, OSRTI
Elizabeth Southerland, OSRTI
Robin Richardson, OSRTI
Sue Priftis, OPM
Denise Benjamin-Sirmons
Catherine Vass
Jeanne Conklin
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