&EPA
United States
Environmental Protection
Agency
Transition Guidelines for
Brownfields Cleanup Revolving
i o
Loan Fund
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Solid Waste and EPA-500-F-02-150
Emergency Response October 2002
(5105T) www.epa.gov/brownfields
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Table of Contents
I. Introduction and Purpose 1
II. Brief Summary of Major Changes under Brownfields Law 3
III. Questions and Answers on Transition 4
* Transition Request Process for BCRLF Pilots 9
IV. Transition Request Submission/Mailing Instruction 13
V. U.S. EPA Regional Office RLF Coordinators 14
Appendix 1. Summary of Major Changes under the Brownfields Law 15
Appendix 2. Matrix of Major Changes 21
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k) . . 25
Appendix 4. Guidance for Requests for Property-Specific Determinations for Funding 37
Appendix 5. Prohibition on Use of Funds 45
EPA encourages Readers to review the Appendices for important information.
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QUESTIONS AND ANSWERS
General
Which BCRLF pilots are eligible for transition? 4
Does a BCRLF pilot have to transition?
Can BCRLF coalitions transition?
Is there a deadline for transition?
What is the earliest that a BCRLF pilot could request transition?
Does a BCRLF pilot that transitions have to meet all of the new statutory requirements?
What will be EPA's role in determinations by an RLF grantee to make loans and cleanup
subgrants?
Loans and Cleanup Subgrants
What funds will be affected by transition under the Brownfields Law? 5
If a BCRLF pilot transitions what happens to loans already made?
How will existing funding structures (70/20/10 or the earlier 85/15) be affected
by transition?
If a BCRLF pilot transitions, what percentage of funds may be used for loans?
For cleanup subgrants?
Will loan discounts be available after transition?
Will intra-governmental loans be allowed after transition?
Will intra-governmental cleanup subgrants be allowed after transition?
Who can receive subgrants from the BCRLF pilot that transitions?
Supplemental Funding and New Grant Funding
Can a BCRLF pilot that transitions receive additional funding? 6
Can a BCRLF pilot that does NOT transition receive additional funding?
Can a BCRLF pilot that does NOT transition compete for new grant funding?
Administrative Costs and Cost Share
What are prohibited administrative costs? 7
What are eligible programmatic costs?
How will the 20% cost share requirement be applied?
Can prohibited administrative costs or other ineligible costs be counted toward an RLF
cooperative agreement recipient's cost share requirement?
Can the 20% cost share come from eligible programmatic activities?
Can repayments of loans and fees charged to borrowers be used to meet the
20% cost share?
Can contributions of labor, material, or services from borrowers be used to meet the
20% cost share?
Can the cost share by met by other entities contributing to the cleanup?
How is the cost share calculated?
Transition Process
What does a BCRLF pilot have to do to request transition? 8
What is the transition approval process?
Are there new record keeping requirements upon transition?
Will a BCRLF Pilot that transitions be required to meet new performance measures?
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I. Introduction and Purpose
Brownfields Cleanup Revolving Loan Fund Guidelines for Transition under
The "Small Business Liability Relief and Brownfields Revitalization Act"
Introduction and Purpose
The Environmental Protection Agency's (EPA or The Agency) Brownfields Economic
Redevelopment Program is designed to empower states, federally recognized Indian tribes, local
governments, communities, and other stakeholders involved in redevelopment to work together
in a timely manner to prevent, assess, and safely cleanup brownfields in order to facilitate their
sustainable reuse. As part of this Program, EPA has awarded cooperative agreements to States,
and political subdivisions (including cities, towns, counties) to capitalize Brownfields Cleanup
Revolving Loan Fund (BCRLF) pilots to facilitate the cleanup and redevelopment of brownfields
properties. l
On January 11, 2002, the Small Business Liability and Brownfields Revitalization Act
was signed into law (P.L. 107-118). ("Brownfields Law") This law makes several significant
changes to EPA's Brownfields Program. Section 104(k)(3)(D) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, CERCLA (42 U.S.C. 9601)
added by the new law provides that "[Revolving loan funds that have been established before
the date of enactment..." may be used in accordance with the new law. A BCRLF2 pilot,
established prior to January 11, 2002, may continue to operate pursuant to the terms and
conditions of its existing cooperative agreement, or it may choose to "transition" under the new
law. The decision to transition is voluntary.
This document describes the process for requesting transition under the Brownfields Law
and highlights some opportunities and requirements so that existing BCRLF pilots can determine
whether transitioning is in their best interest. Subject to the availability of appropriations, EPA
will begin implementing the new grant programs under the new law in Federal fiscal year 2003
(beginning October 1, 2002).
BCRLF pilots choosing to transition under the Brownfields Law will be required to
comply with all requirements of the new law. BCRLF pilots that choose to transition will have
their existing cooperative agreement closed out, and unspent funds will be transferred to a new
replacement "transition" cooperative agreement, i.e. transition from original funding under
§104(d) to §104(k) authority. Regulations applicable to the new replacement cooperative
agreement as well as new cooperative agreements will include 40 C.F.R. Part 31 (Uniform
Administration Requirements for Grants and Cooperative Agreements to State and Local
Governments), and "relevant and appropriate" provisions of the National Oil and Hazardous
Substances Contingency Plan (NCP), as determined by EPA. The Davis-Bacon Act, 40 U.S.C. §
276a et seq. applies. Seepage 12 "Matrix on BCRLF Pilot Transition Process."
1 There are 143 BCRLF pilots that have been awarded since fiscal year 1997.
Throughout this document, " Brownfields Cleanup Revolving Loan Fund" (BCRLF) will refer to existing
pilots and "Revolving Loan Fund" (RLF) or RLF cooperative agreement recipients will refer to pilots AFTER they
have transitioned.
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BCRLF pilots that do NOT choose to transition will continue to operate pursuant to the
terms and conditions of their existing cooperative agreement. The BCRLF demonstration pilot
program was originally funded under §104(d)(l) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (CERCLA). Regulations
applicable to that program included 40 C.F.R. Part 31 (Uniform Administration Requirements
for Grants and Cooperative Agreements to State and Local Governments), 40 C.F.R. Part 35,
Subpart O (Cooperative Agreements for Superfund Response Actions), and 40 C.F.R. Part 300
(The National Oil and Hazardous Substances Pollution Contingency Plan).
Transition Guidelines - Introduction and Purpose Page 2
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II. Brief Summary of Major Changes under the
Brownfields Law
Brief Summary of Major Changes under the Brownfields Law
Major changes from the current EPA brownfields program include:
/. A new definition of a brownfield site (See Appendix 3.) The new definition of a
brownfield site includes:
a. Sites contaminated by hazardous substances, pollutants or contaminants,
petroleum or petroleum product, or controlled substances under §102 of the
Controlled Substances Act (21U.S.C. 802) may be eligible for grant funding.
b. "Realproperty " including residential as well as commercial and industrial
properties.
c. "Mine-scarred land."
II. Revolving Loan Fund (RLF) funding may be used for both loans and cleanup
subgrants. Intragovernmental loans, i.e., the reimbursable transfer of loan funds
within the same governmental entity may be made to the RLF recipient; cleanup
subgrants may NOT be made by the RLF recipient to itself.
III. RLF cooperative agreement recipients are prohibited from making loans or
cleanup subgrants for the response costs at a site for which the recipient of the
grant or loan is potentially liable under §107 ofCERCLA.
IV. RLF cooperative agreement recipients are required to provide a 20% cost share
of funds awarded by EPA, unless EPA approves a hardship waiver.
V. RLF cooperative agreement recipients are prohibited from using grant funding
for administrative costs. See Appendix 5.
VI. RLF cooperative agreement recipients are required to apply provisions of the
National Oil and Hazardous Substances Contingency Plan (NCP) that EPA
determines to be "relevant and appropriate to the program ".
Each of these major changes is briefly described in Appendix 1.
Transition Guidelines - Brief Summary of Major Changes under the Brownfields Law Page 3
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III. Questions and Answers on Transition
General
Which BCRLF pilots are eligible for "transition"?
All BCRLF pilots "established before the date of enactment" of the Brownfields Law on
January 11, 2002, may transition under the new law. This provision will allow all 143 BCRLF
pilots to transition if they choose to do so. EPA's regional offices will provide assistance if a
BCRLF pilot chooses to transition.
Does a BCRLF pilot have to transition?
No. BCRLF pilots that do NOT choose to transition will continue to operate pursuant to
the terms and conditions of their existing cooperative agreement.
Can BCRLF coalitions transition?
Yes. The cooperative agreement recipient (Lead Agency) for a BCRLF coalition must be
able to demonstrate that all coalition members agree to the transition request. Members of
coalitions are eligible entities and may apply independently for any grant under the new law.
Is there a deadline for transition!
No. There is no deadline date for pilots to transition because transitioning is not
mandated. However, EPA is strongly encouraging pilots that choose to transition to do so as
soon as possible, preferably before June 30, 2003 (within the first, second, or third quarter of
fiscal year 2003). After June 30, 2003, requests for transition may be made only during a
specified "open season" to be announced by EPA in fiscal year 2004.
What is the earliest that a BCRLF pilot could request transition?
BCRLF pilots may request transition under the new law upon publication and distribution
of these transition guidelines. BCRLF pilots should contact the appropriate EPA Regional
Office. Copies of the Transition Guidance will be available at all EPA regional offices, in EPA's
Office of Brownfields Cleanup and Redevelopment, and on the EPA's web site
www.epa.gov/brownfields.
Does a BCRLF pilot that transitions have to meet all of the new statutory requirements?
Yes. BCRLF pilots that transition will be required to comply with all of the statutory
requirements specified in the new law. For example, the new law specifically prohibits the use
of a grant, subgrant, or loan for response costs at a site for which the recipient of the grant or
loan is potentially liable under §107 of CERCLA. The new law prohibits the RLF cooperative
agreement recipient from using grant or loan funds for administrative costs. Other prohibitions
on the use of funds are also applicable. Further, the new law requires the RLF cooperative
agreement recipient to provide a 20% cost share of the total federal funds awarded.
What will be EPA's role in determinations by an RLF grantee to make loans and cleanup
subgrants?
EPA expects to be substantially involved in overseeing and monitoring the RLF program.
EPA will approve the substantive terms of RLF loans and cleanup subgrants. Substantial
involvement by EPA generally covers such administrative activities as: monitoring, review and
approval of procedures for loan recipient selection; review of project phases; approval of the
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substantive terms included in certain types of contracts, as well as loans and subgrants to help
the cooperative agreement recipient verify that the costs incurred in these transactions are
eligible expenses under CERCLA §104(k). Substantial involvement also includes reviewing and
approving sites to determine eligibility; reviewing financial and environmental status reports;
and monitoring the RLF grantee's fulfillment of all reporting, record keeping, and other program
requirements. The exact terms of EPA's substantial involvement will be negotiated between the
RLF grantee and the EPA Regional office.
Loans and Cleanup Subgrants
What funds will be affected by transition under the new law?
BCRLF pilot funds affected by transition are all funds not expended for loans or
otherwise legally encumbered or expended at the time of the transition. The 20% cost share will
apply to the funds transitioned as well as any subsequent supplemental funds provided to the
RLF recipient.
If a BCRLF pilot transitions what happens to loans already made?
BCRLF loans are subject to terms and conditions existing at the time of their execution.
1. In cases in which a loan has been made under an existing BCRLF cooperative
agreement, that cooperative agreement will remain in effect until the loan has been fully paid out
to a borrower. This cooperative agreement will continue to operate pursuant to the terms and
conditions of the existing agreement. It will not be closed out until all loan monies have been
paid out to the borrower. Accordingly, administrative costs anticipated to manage these loans
will also remain a part of the existing cooperative agreement. For example, funds to be used for
anticipated administrative costs to be incurred by a Fund Manager to oversee the day-to-day
management of an outstanding loan may remain under the existing cooperative agreement. An
estimate of these costs and how the estimate was derived must be included in the materials
submitted at the time of transition.
(Note: Any program income (i.e., principal repayments and interest received on a loan) received
after the date of transition may become apart of the new replacement "transition" cooperative
agreement.)
2. All other funds under the existing BCRLF will be part of the transition. A new
replacement "transition" cooperative agreement will be in effect under the new law.
For example, if a BCRLF pilot was awarded $1,000,000 and has made a $400,000 loan
that has been fully paid out to the Borrower, and expended $15,000 for other eligible and
allowable purposes, then the remaining sum of $585,000 will be transitioned. Seepage 12 -
"Matrix on BCRLF Pilot Transition Process"
How will existing funding structures (70/20/10 or the earlier 85/15) be affected by transition?
BCRLF pilots awarded in!997, 1999, and 2000, generally provide 85% of their funding
to capitalize the loan fund and 15% for general administrative costs. BCRLF pilots awarded in
2001 and 2002 were required to use at least 70% of the cooperative agreement funds to capitalize
the cleanup loan fund; and were allowed to use up to 20% of the cooperative agreement funds as
direct financial assistance to carry out cleanup responsibilities as lead agency. The remaining
10% of the cooperative agreement funds were to be used for general administrative costs.
RLF grants under the new law will not have an analogous funding structure.
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If a BCRLF pilot transitions what percentage of funds may be used for loans? For cleanup
subgrants?
Consistent with the intent of the new law to promote the long-term availability of funds
from the revolving loan fund, it is EPA policy that at least 60% of the funds transitioned by a
BCRLF pilot must be used to capitalize the loan pool and eligible programmatic costs. No
more than 40% of the funds awarded may be used for cleanup subgrants and eligible
programmatic costs.
(Note: Accounting to differentiate loans and cleanup subgrants made will be necessary. All
subgrants are subject to grant rules.)
Will loan discounts be available after transition?
No. EPA has determined that loan discounts will not promote the long-term availability
of funds from the revolving loan fund under the new law.
Will intra-governmental loans be allowed after transition?
Yes. Intragovernmental loans, i.e., the reimbursable transfer of loan funds within the
same governmental entity, may be made by the RLF recipient.
Will intra-governmental cleanup subgrants be allowed after transition?
No. Cleanup subgrants, unlike loans, may NOT be made by the RLF recipient within the
same governmental entity that receives the RLF grant, (e.g. one department of a city government
"subgrants" to another department of the same governmental entity). This would be consistent
with either the new law or the "Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments, 40 C.F.R. Part 31. A BCRLF pilot
that transitions may, however, award a subgrant to another eligible governmental entity (e.g. a
state or county that has an RLF may make a subgrant to a township). Further, eligible
governmental entities may apply separately for $200,000 Cleanup Grants from EPA under
Section 104(k)(3)(A)(ii).
Who can receive subgrants from the BCRLF pilot that transitions?
RLF subgrants for cleanup may be made to another eligible entity, or nonprofit
organization based on several specific considerations for the cleanup of sites owned by the
eligible entity or nonprofit organization that receives a cleanup subgrant.
Supplemental Funding and New Grants
Can a BCRLF pilot that transitions receive additional (supplemental) funding?
Yes. Upon transition a BCRLF pilot may apply for additional, non-competitive
supplemental funding. Supplemental funding selection will be based on the availability of funds.
Supplemental funding selection will be made by the Agency on a "rolling basis" to the extent
funds are available. For many pilots the opportunity to receive supplemental funding may be a
significant consideration to transition.
The Agency will consider supplemental funding based on the following statutory
considerations including the number of sites and number of communities addressed; the demand
for funding by eligible entities that have not previously received a grant under the new law; the
demonstrated ability of the eligible entity to use the revolving loan fund to enhance remediation
and provide funds on a continuing basis; and such other factors as the Agency considers
appropriate to carry out the RLF. In the past EPA has required BCRLF pilots to demonstrate:
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that loans have been made and significantly depleted existing available loan funds and that
there will be a community benefit from supplemental funding. The Agency will continue to
require a similar demonstration under the new law.
It is EPA policy that at least 60% of the supplemental funding received by an RLF
must be used to capitalize the loan pool and eligible programmatic costs. No more than 40% of
the funds awarded may be used for cleanup subgrants and eligible programmatic costs.
Can a BCRLFpilot that does NOT transition receive additional (supplemental) funding?
No. Under the new law, non-competitive supplemental funding is available only to
cooperative agreement recipients who are awarded competitive RLF capitalization cooperative
agreements, or to a BCRLF pilot that transitions.
Can a BCRLF pilot that does NOT transition compete for new grant funding?
Yes. For a list of entities eligible to apply for grant funding see Appendix 2.
Administrative Costs and Cost Share
What are prohibited administrative costs?
The Brownfields Law prohibits the use of any "part of a grant or loan" for the payment of
an administrative cost. Direct administrative costs are prohibited costs. The new law provides
that the administrative cost prohibition does not apply to: investigation and identification of the
extent of the contamination; design and performance of a response action; or monitoring of a
natural resource. Under new law, BCRLF pilots that choose to transition will no longer be
able to use their grant funds to pay for prohibited administrative costs. See Appendix 5.
What are eligible programmatic costs?
Eligible programmatic costs are expenses incurred for activities that are integral to
achieving the purpose of the grant, even if EPA considered the costs to be "administrative" under
the prior Brownfields Program. See Appendix 5.
How will the 20% cost share requirement be applied?
In the case of BCRLF pilots transit!oning under the new law, the 20% cost share will
apply to the EPA funds not previously loaned or otherwise legally expended or encumbered
under the existing BCRLF and to any subsequent supplemental funds provided to the RLF
recipient.
The cost share requirement may be in the form of a contribution of cash, labor, material,
or services from non-Federal sources unless EPA determines that the cost share would place an
undue hardship on the eligible entity. A BCRLF pilot requesting transition may petition EPA to
waive the cost share based on a claim for undue hardship. To petition EPA, a BCRLF pilot must
submit a letter to the EPA Brownfields Project Officer requesting a hardship waiver and the
specific circumstances to support the request. EPA will consider a hardship waiver to the cost
share requirement on a case-by-case basis. For factors EPA will consider in making a hardship
waiver determination See Appendix 1.
Eligible programmatic costs may be used to meet the RLF capitalization grant 20% cost
share.
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Can prohibited administrative costs or other ineligible costs be counted toward an RLF
cooperative agreement recipient's cost share requirement?
No. Under 40 C.F.R. 31.24, grant recipients can only use eligible and allowable costs to
meet their cost share requirements.
Can the 20% cost share come from eligible programmatic activities?
Yes. Eligible programmatic costs may be used to meet the RLF capitalization grant 20%
cost share.
Can repayments of loans and fees charged to borrowers be used to meet the 20% cost share?
Yes. Under 40 C.F.R. 31.25(g), program income, including repayment of loans made
after the date of transition or fees charged to borrowers, may be used to fund expenditures
toward meeting the 20% cost share. However, if a BCRLF pilot plans to use anticipated
program income to help meet the cost share, the request for transition must demonstrate how
alternative sources for obtaining cash, labor, material or services can be used to meet the cost
share if program income is less than anticipated during the performance period for the
cooperative agreement.
Can contributions of labor, material, or services from borrowers be used to meet the 20% cost
share?
Yes. EPA will allow contributions of labor, material, or services from borrowers to count
toward the cost share if the RLF cooperative agreement recipient can demonstrate that the
accounting system used is able to track and provide adequate documentation for such
contributions.
Can the cost share be met by other entities contributing to the cleanup (i.e., borrowers, State
contributions or other third-party non-Federal entities)?
Yes. States and other third-party non-Federal entities may contribute funds, labor,
services, or materials to be counted towards the cost share requirement. The costs for 3rd party
contributions must be allowable under 40 C.F.R. 31.24. Generally other sources of federal
funds including other EPA grants and cooperative agreements cannot be used to meet the cost
share requirement, some Federal grant programs have specific authority that allow grants to be
used to meet cost share requirements. For example, the Department of Housing and Urban
Development's Community Development Block Grant program funding (42 USC 5305(a)(9))
contains a specific authorization that allows these Federal grant funds to be used as a match for
other Federal grants. Local governments that choose to transition their BCRLF pilots may use
state grants to meet their cost share requirements to the extent allowed by state law.
How is the cost share calculated?
The 20% cost share will apply to the transitoned funds. For example, if a BCRLF pilot
is transitioning $500,000 in funds, the 20% cost share is calculated by multiplying $500,000 by
20%. In this example, the cost share would be $100,000. The workplan and budget for the new
"transition" cooperative agreement would total $600,000 (i.e., $500,000 in transitioned funds
plus the $100,000 cost share).
Transition Process for BCRLF Pilots
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What does a BCRLFpilot have to do to request a transition?
Your EPA Regional Office is available to provide assistance regarding the transition
process. Seepage 14 for a list of Brownfields RLF Coordinators. A BCRLF pilot must notify
both the EPA Regional Brownfields Project officer and the Regional Grants Management Office
that the pilot will be requesting a transition. A BCRLF pilot will be asked to submit formal
documentation to process the transition. This documentation should include a cover letter signed
by the authorized representative of the BCRLF pilot and should include a statement that the pilot
understands and agrees to comply with the provisions of the new law. In addition, the pilot must
provide the following:
1. Application for Assistance/Amendment (Standard Forms 424, 424A, and 424B);
including detailed information showing how the figures were derived for each
object class category in which funds are shown in Standard Form 424A.
2. Revised work plan narrative specifying additional and modified tasks including
those activities or services contributed as the cooperative agreement recipient's
cost share.
3. Revised budget information, including:
» A breakdown of funds expended or otherwise legally encumbered under
the BCRLF to identify the amount remaining in the account for transition.
Submittal of a Financial Status Report (Standard Form 269) can be used to
certify transition amount.
For existing BCRLF cooperative agreements which will remain in
effect until a loan has been fully paid out to the borrower, include
an estimate of any administrative costs anticipated to manage the
outstanding loan. The estimate and a description of how the
estimate is derived must be included as part of the financial status
report.
> A clear identification of the 20% cost share (based on the funds
transitioned)
> Identification of the amount of the funding to be used to capitalize the loan
program and the amount to be used for cleanup subgrants. (EPA requires
that a minimum of 60% of the your awarded funds be utilized to capitalize
the loan pool based on the funds transitioned.)
> Amount to be used to purchase insurance for site cleanup, if applicable
» Local governments only: Identification of the amount, if any, up to 10% of
grant funds transitioned, to develop and implement a brownfields
program.3
> Identification of the amount anticipated for use to cleanup petroleum-
contaminated brownfields.
What is the transition approval process?
3 The Small Business Liability Relief and Brownfields Revitalization Act §104(k) (4)(C) provides that local
governments receiving a brownfields grant from EPA may use up to 10% of the grant funds to develop and
implement a brownfields program that may include: monitoring the health of populations exposed to one or more
hazardous substances from a brownfield; and monitoring and enforcement of any institutional control used to prevent
human exposure to any hazardous substance from a brownfield site.
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When a transition request has been received, the EPA's Regional office will review the
application package to ensure that it includes all of the required documentation. EPA will advise
the BCRLF pilot if revisions or additional information is needed. Upon final negotiation of the
revised application and workplan, a new replacement "transition" cooperative agreement with
revised terms and conditions will be sent to the grantee for review and signature. Upon signature
of the new cooperative agreement, the RLF recipient will proceed under the new law and the
terms and conditions of the new cooperative agreement. BCRLF pilots requesting transition may
not begin operation under the new law until a new RLF cooperative agreement has been
executed.
Note:
1. For pilots with outstanding loans, the EPA Region will prepare an amendment to the
existing BCRLF cooperative agreement to deobligate unspent funds.
2. For BCRLF pilots that do not have outstanding loans, the EPA Region will prepare an
amendment to the existing BCRLF cooperative agreement to deobligate unspent funds and close
out the existing cooperative agreement.
In the interim period between the submission of a transition application and the award of
the new cooperative agreement, BCRLF pilots should note that reimbursement of pre-award
costs (i.e., prior to award of the new RLF replacement "transition" cooperative agreement)
requires careful consideration on the part of the recipient. The Agency is not obligated to
reimburse recipients for pre-award costs and recipients incurring pre-award costs do so at their
own risk. Therefore, care should be given by the BCRLF pilot regarding costs expended in the
interim period in anticipation of approval.
Are there new record keeping requirements upon transition?
Upon transition, costs incurred under the new law must be tracked separately from those
incurred under the previous program. In addition, the following types of expenditures will need
to tracked separately: the matching share; any costs incurred for petroleum-related activities;
and any costs related to program development and implementation (Note: local governments will
have to identify and track the amount, if any, up to 10% of grant funds transitioned, to develop
and implement a brownfieldsprogram).
The length of time that records must be retained has been reduced. The current BCRLF
was awarded under 40 C.F.R. Part 35, Subpart O. This regulation governed Superfund
cooperative agreements made under §104(d) of CERCLA and required that all records be
retained for a minimum of 10 years. With the enactment of §104(k) of CERCLA, EPA has
determined that the replacement transition cooperative agreement will by governed by 40 C.F.R.
Part 31 which requires maintenance of all pertinent records for three years following submittal of
the final Financial Status Report for the RLF cooperative agreement. EPA may require a longer
record retention period for records pertaining to the earning of income (e.g., after the cooperative
agreement has expired but where loan repayments continue to be made); where there is any
pending litigation, claim or audit involving such records; or if such longer period is deemed
appropriate. At the end of the three year period written approval must be received from EPA
prior to destruction of any records.
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Will a BCRLF Pilot that transitions be required to meet new performance measures?
Yes. New performance measures will be required.
Information About the Brownfields Law
BCRLF pilot recipients are encouraged to review the new law and guidelines for grant
proposals to obtain a better understanding of these requirements for themselves. Information and
summaries of the new law may be found on EPA's web site at www.epa.gov/brownfields.
Additional information may also be found through the legislative reference system called
"Thomas" on either the U.S. Congress House of Representatives site or the Senate site:
www.house.gov or www.senate.gov.
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Matrix on BCRLF Pilot Transition Process
BCRLF PILOT Status Process To Transition to RLF Under New Law
NO BCRLF FUNDS
SPENT
Close out existing cooperative agreement. EPA deobligates, recertifies, and
reobligates simultaneously unspent funds to new replacement "transition"
cooperative agreement
* Requires transition application related to the amount unspent, showing
matching share and including new budget/workplan to incorporate new
statutory requirements
Replacement "transition" cooperative agreement grant is under §104(k)
authority
BCRLF FUNDS
SPENT FOR
ADMINISTRA TIVE
COSTS ONLY
Close out existing cooperative agreement. EPA deobligates, recertifies, and
reobligates simultaneously unspent funds to new replacement "transition"
cooperative agreement
* Requires transition application related to the amount unspent, showing
matching share and including new budget/workplan to incorporate new
statutory requirements
Replacement "transition" cooperative agreement grant is under §104(k)
authority.
BCRLF WITH
LOANS MADE
Close out existing cooperative agreement. EPA deobligates, recertifies, and
reobligates simultaneously unspent funds to new replacement "transition"
cooperative agreement
* Requires transition application related to the amount unspent, showing
matching share and including new budget/workplan to incorporate new
statutory requirements
Closeout of the existing cooperative agreement will be possible in those cases
in which all loans previously made have been fully paid out.
If loans have been made under the existing cooperative agreement but have
NOT been fully paid out:
* The funds associated with the loans (including administrative expenses)
will remain in the existing cooperative agreement
> The existing cooperative agreement will remain open until the loans
have been fully paid out.
> Funds other than the loan funds (described above) will be transferred to
the new "transition" cooperative agreement.
* Program income associated with these loans but received after the date
of transition will be counted as part of the transitioned funds and can be
used to satisfy the 20% match requirement of the new "transition"
cooperative agreement (See 40 C.F.R. 31.25(g)(3))
* An existing cooperative agreement and the new replacement
"transition" cooperative agreement may be in existence at the same
time.
Replacement "transition" cooperative agreement grant is under §104(k)
authority.
Note: (1) "Replacement" means the deobligation of BCRLF funds under §104(d) and the reobligation of
the same funds as an RLF under the authority of §104 (k). (2)Note: BCRLF refers to pilots existing under
the original Brownfields program; RLF refers to cooperative agreements under the new law.
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IV. Transition Request Submission and Mailing
Instructions
BCRLF pilots choosing to transition under the new law must send a 2 copies of the
Transition application to:
U.S. EPA Regional Office:
Original
Signed Copy ATTN: Grants Management Officer
Copy ATTN: Brownfields Project Officer
* See page 14 for a listing of EPA Regional Offices and Revolving
Loan Fund Coordinators.
Transition Guidelines - Transition Request Submission/Mailing Instructions Page 13
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V. U.S. EPA Regional Office RLF Coordinators
Regions and States
EPA Region 1
James Chow
EPA Region 2
Larry D'Andrea
EPA Region 3
Sherry
Gallagher
EPA Region 4
Wanda Jennings
EPA Region 5
Alan Baumann
EPA Region 6
Roger Hancock
EPA Region 7
Debi Morey
EPA Region 8
Tom Pike
EPA Region 9
Susanne Perkins
EPA Region 10
Timothy
Brincefield
CT, ME, MA,
NH, RI, VT
NJ, NY, PR, VI
DE, DC, MD,
PA, VA, WV
AL, FL, GA, KY,
MS, NC, SC, TN
IL, IN, MI, MN,
OH,WI
AR, LA, NM,
OK, TX
IA, KS, MO, NE
CO, MT, ND,
SD, UT, WY
AZ, CA, HI, NV,
AS, GU
AK, ID, OR, WA
Address and Phone Number
One Congress Street, Suite 1100 (Mailcode HIO)
Boston, MA 02114-2023
Phone (617) 918-1394 Fax (617) 918-1291
290 Broadway, 18th Floor
New York, NY 10007
Phone (212) 637-4314 Fax (212) 637-4360
1650 Arch Street (3HS34)
Philadelphia, PA 19103-2029
Phone (215) 814-3211 Fax (215) 814-5518
Atlanta Federal Center (SNFC-EPA Mail Room)
61 Forsyth Street
Atlanta, GA 30303
Phone (404) 562-8682 Fax (404) 562-8628
77 West Jackson Boulevard (SE-4J)
Chicago, IL 60604-3507
Phone (312) 886-3058 Fax (312) 886- 6741
1445 Ross Avenue, Suite 1200 (6SF-PB)
Dallas, TX 75202-2733
Phone (214) 665-6688 Fax (214) 665-6660
901 N. 5th Street (SUPR/STAR)
Kansas City, KS 66101
Phone (913) 551-7593 Fax (913) 551-8688
999 18th Street, Suite 300 (EPR-SA)
Denver, CO 80202- 2466
Phone (303) 312-6982 Fax (303) 312-6067
75 Hawthorne Street, SFD 1-1
San Francisco, CA 94 105
Phone (415) 972-3208 Fax (415) 947-3526
1200 Sixth Avenue (ECL-1 12)
Seattle, WA 98 101
Phone (206) 553-2100 Fax (206) 553-0124
Transition Guidelines - U.S. EPA Regional Office RLF Coordinators
Page 14
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Appendix 1. Summary of Major Changes under the
Brownfields Law
Major changes from the current EPA brownfields program include:
/. A new definition of a brownfield site (See Appendix 3.) The new definition of a
brownfield site includes:
a. Sites contaminated by hazardous substances, pollutants or contaminants,
petroleum or petroleum product, or controlled substances under §102 of the
Controlled Substances Act (21U.S.C. 802) may be eligible for grant funding.
b. "Realproperty " including residential as well as commercial and industrial
properties.
c. "Mine-scarred land."
II. Revolving Loan Fund (RLF) funding may be used for both loans and cleanup
subgrants. Intragovernmental loans, i.e., the reimbursable transfer of loan funds
within the same governmental entity may be made to the RLF recipient; cleanup
subgrants may NOT be made by the RLF recipient to itself.
III. RLF cooperative agreement recipients are prohibited from making loans or
cleanup subgrants for the response costs at a site for which the recipient of the
grant or loan is potentially liable under §107 ofCERCLA.
IV. RLF cooperative agreement recipients are required to provide a 20% cost share
of funds awarded by EPA, unless EPA approves a hardship waiver.
V. RLF cooperative agreement recipients are prohibited from using grant funding
for administrative costs. See Appendix 5.
VI. RLF cooperative agreement recipients are required to apply provisions of the
National Oil and Hazardous Substances Contingency Plan (NCP) that EPA
determines to be "relevant and appropriate to the program ".
Each of these major changes is briefly described. BCRLF pilots are encouraged to
review the new law to obtain a better understanding of these requirements for themselves.
I. Definition of Brownfield Site
EPA may provide funding to plan, identify, investigate, assess, and clean up brownfields
properties. A "brownfield site" is defined to mean as "real property, the expansion,
redevelopment, or reuse of which may be complicated by the presence or potential presence of a
hazardous substance, pollutant or contaminant." (§101(39)(A)). Certain facilities are excluded
from the definition of a brownfield site. See Appendix 3.
However, certain sites that are excluded from funding eligibility because the sites fall
within the scope of the statutory exclusions from the definition of "brownfield site" may qualify
for brownfields funding, if a property-specific determination is made that the site meets the goals
and criteria of the brownfields program and the criteria set forth in the statute. EPA may award
financial assistance to an eligible entity for assessment and cleanup activities at an excluded site,
if it is found that such financial assistance will protect human health and the environment, and
either promote economic development or enable the creation of, preservation of, or addition to
parks, greenways, undeveloped property, other recreational property, or other property, used for
Appendix 1. Summary of Major Changes under the Brownfields Law Page 15
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nonprofit purposes. Sites not eligible for a property-specific funding determination are those
sites or facilities: that are listed, or proposed for listing on the National Priorities List; subject to
a unilateral administrative order, a court order, an administrative order on consent or judicial
consent decree issued or entered into by parties under CERCLA; and that are subject to the
jurisdiction, custody, or control of the United States government, except for land held in trust by
the United States for an Indian tribe.
Eligible brownfields sites may include sites that are
contaminated by petroleum or a petroleum product
contaminated by controlled substances (meaning a drug or other substance
as defined in section 102 of the Controlled Substances Act (21 U.S.C.
802).
mine-scarred lands.
Generally, petroleum sites are included in the definition of a brownfield site and may
receive financial assistance from EPA for assessments and cleanup. The Brownfields Law
restricts eligibility for brownfields funding to petroleum contaminated sites that EPA or the state
determines are (1) of "relatively low risk" compared with other "petroleum-only" sites in the
state; and (2) for which there is no viable responsible party and will be assessed, investigated, or
cleaned up by a person that is not potentially liable for cleaning up the site. In addition,
petroleum contaminated sites must not be subject to a corrective action order under the RCRA
9003(h). Petroleum sites that have received specific cleanup assistance under Subtitle I of
RCRA from the Leaking Underground Storage Tank trust fund are excluded from receiving
financial assistance, unless a property-specific funding determination from EPA is obtained.
EPA's preliminary view is that "mine-scarred" lands are those lands, associated waters,
and surrounding watersheds where extraction, benefication, or processing of ores and minerals
(including coal) has occurred. 40 C.F.R. 261.4(b)(7). See Appendix 3 for additional
information..
Brownfields sites also include all "real property." Residential properties, as well as
commercial and industrial properties, are included under the new definition. In particular, sites
eligible for funding include residential property that is contaminated by controlled substance(s)
(e.g. former drug labs). (21 USC 812)
II. RLF funding may be used for both loans and cleanup subgrants
Under the new law, a Revolving Loan Fund (RLF) may make both loans (including loan
guarantees) and cleanup subgrants to eligible entities. Consistent with the intent of the new law
to promote the long-term availability of funds from the revolving loan fund, it is EPA policy that
at least 60% of the funds transitioned by a BCRLF pilot must be used to capitalize the loan
pool and eligible programmatic costs. No more than 40% of the funds awarded may be used for
cleanup subgrants and eligible programmatic costs.
EPA expects to be substantially involved in overseeing and monitoring the RLF program.
EPA will approve the substantive terms of RLF loans and cleanup subgrants. Substantial
involvement by EPA generally covers such administrative activities as: monitoring, review and
approval of procedures for loan recipient selection; review of project phases; approval of the
substantive terms included in certain types of contracts, as well as loans and subgrants to help
the cooperative agreement recipient verify that the costs incurred in these transactions are
Appendix 1. Summary of Major Changes under the Brownfields Law Page 16
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eligible expenses under CERCLA §104(k). Substantial involvement also includes reviewing and
approving sites to determine eligibility; reviewing financial and environmental status reports;
and monitoring the RLF grantee's fulfillment of all reporting, record keeping, and other program
requirements. The exact terms of EPA's substantial involvement will be negotiated between the
RLF grantee and the EPA Regional office.
A. Loans under the RLF
Like the current program, new RLF grant recipients or BCRLF pilots transitioning under
the new law will be able to make one or more loans (or loan guarantees) to an eligible entity, a
site owner, a site developer, or another person. In addition, new RLF grant recipients or BCRLF
pilots transitioning under the new law may continue to make intragovernmental loans, i.e., the
reimbursable transfer of loan funds within the same governmental entity. The law does not limit
the amount of funding an RLF recipient may lend a borrower for any one site, however, the
ability to enhance cleanup and provide funds on a continuous basis is a factor that will be
considered if a RLF grantee or transitioned BCRLF pilot applies for supplemental funding.
B. Cleanup Subgrants under the RLF
While loans are generally preferred because repayment of the loans will extend the life
and expand the utility of federal expenditures under this program, the new law allows new RLF
grant recipients or transitioned BCRLF pilots to make one or more cleanup subgrants. The
cleanup subgrants, unlike the loans, may NOT be made within the same governmental entity
that receives the RLF grant.4
RLF subgrants for cleanup may be made to another eligible entity, or nonprofit
organization based on several specific considerations for the clean up of sites owned by the
eligible entity or the nonprofit organization that receives the cleanup subgrant.5
The RLF cooperative agreement recipient must take into consideration (§104(k)(3)(C)):
the extent to which the cleanup subgrant will facilitate the creation of,
preservation of, or addition to a park, a greenway, undeveloped property,
recreational property, or other property used for nonprofit purposes;
the extent to which the cleanup subgrant will meet the needs of a
community that has inability to draw on other sources of funding for
environmental remediation and subsequent redevelopment of the area in
which a brownfield site is located because of the small population or low
income of the community;
4 Under CERCLA §104(k)(3)(B)(ii), the eligible governmental entity "providing assistance" may make
subgrants to a different eligible entity or to a nonprofit organization. In addition, under the "Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local Governments, 40 C.F.R. Part 31, Section
31.3 defines a grantee as "the entire legal entity even if only a particular component of the entity is designated in the
grant award document" and further defines a subgrantee as "...the government or other legal entity ...which is
accountable to the grantee for the use of the funds provided."
5 The cleanup subgrants made under an RLF cooperative agreement are not the same as "direct cleanup
grants" which may also be awarded by EPA under the new law. Direct cleanup grant funding is limited to $200,000
and is awarded by EPA to eligible entities AND NON-PROFIT ORGANIZATIONS described in section
Appendix 1. Summary of Major Changes under the Brownfields Law Page 17
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the extent to which the cleanup subgrant will facilitate use or reuse of
existing infrastructure;
the benefit of promoting the long-term availability of funds from a
revolving loan fund for brownfield remediation; and
other similar factors EPA considers appropriate.
Non-profit subgrantees must expend subgrant funds in accordance with 40 C.F.R. Part
30 and OMB Circular A-122 (nonprofit organizations). Subgrants made to eligible entities that
are governmental organizations are subject to 40 C.F.R.Part 31 and OMB Circular A-87 (state,
tribal and local governments). All costs incurred by subgrantees must be eligible costs. In other
words, subgrantees cannot use cleanup funds for prohibited administrative costs, or for other
costs prohibited by the new law. See Appendix 5.
III. RLF cooperative agreement recipients are prohibited from making loans or cleanup
subgrantsfor the response costs at a site for which the recipient of the grant or loan is
potentially liable under §107 ofCERCLA.
The new law states that no part of a grant or loan may be used for the payment of "a
response cost at a brownfield site for which the recipient of the grant or loan is potentially liable
under section 107. " (§104(k)(4)(B)(I)(IV))
IV. RLF cooperative agreement recipients are required to provide a 20% cost share of
funds awarded from EPA, unless EPA approves a hardship waiver.
The new law requires that RLF recipients pay a 20% cost share of the total federal
award. In the case of BCRLF pilots transit!oning under the new law, the 20% cost share will
apply to the EPA funds not previously loaned or otherwise legally expended or encumbered
under the existing BCRLF and to any subsequent supplemental funds provided to the RLF
recipient.
The cost share requirement may be in the form of a contribution of cash, labor, material,
or services from non-Federal sources unless EPA determines that the cost share would place an
undue hardship on the eligible entity. A BCRLF pilot requesting transition may petition EPA to
waive the cost share based on a claim for undue hardship.
To petition EPA, a BCRLF pilot must submit a letter to the EPA Brownfields Project
Officer requesting a hardship waiver and the specific circumstances to support the request. EPA
will consider a hardship waiver to the cost share requirement on a case-by-case basis. Factors
that EPA will consider include:
(A) bankruptcy, receivership, or similar indicators of financial distress, OR
(B) evidence that the eligible entity is unable to commit its own funding or in-
kind contribution to the project due to:
(1) a loss or diminution of sources of revenue,
(2) low per capita income,
(3) an unemployment rate above the national average,
(4) unemployment or economic adjustment problems resulting from severe
short-term or long-term changes in economic conditions, or
(5) a reduced tax base due to unforeseen economic conditions.
(C) evidence of the presence of factors that the applicant for the hardship waiver
believes are relevant to a decision by EPA to waive the cost share requirement.
Appendix 1. Summary of Major Changes under the Brownfields Law Page 18
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RLF cooperative agreement recipients (including BCRLF pilots that transition) cannot
meet the cost share requirement with prohibited administrative costs, or other unallowable costs.
Under 40 C.F.R. 31.24, cooperative agreement recipients can only use eligible and allowable
costs to meet their cost share requirements. To be allowable, the costs must be reasonable and
allocable to an activity described by the scope of work and not otherwise prohibited. If the cost
share is in the form of a contribution of labor, material or other services, it must be an eligible
and allowable expense under the grant and not an ineligible expense such as administrative or
indirect costs. States and other third-party non-Federal entities may contribute funds, labor,
services, or materials to be counted towards the cost share requirement. The costs for 3rd party
contributions must be allowable under 40 C.F.R. 31.24. Generally, other sources of federal
funds including other EPA grants and cooperative agreements cannot be used to meet the cost
share requirement unless the grant making authority contains a specific provision that allows the
Federal grant to be used as a cost share. For example, the Department of Housing and Urban
Development's Community Development Block Grant program funding (42 USC 5305(a)(9))
contains a specific authorization that allows these Federal grant funds to be used as a cost share
for other Federal grants. Local governments that transition their BCRLF pilots may use state
grants to meet their cost share requirements to the extent allowed by state law.
Under 40 C.F.R. 31.25(g), program income, including repayment of loans made after the
date of transition or fees charged to borrowers, may be used to fund expenditures toward meeting
the 20% cost share. EPA will not allow contributions of labor, material, or services^row
borrowers to count toward the RLF cooperative agreement recipient's cost share unless the
recipient can demonstrate that the accounting system used is able to track and provide adequate
documentation for such contributions. However, if a BCRLF pilot plans to use anticipated
program income to help meet the cost share, the request for transition must demonstrate how
alternative sources for obtaining cash, labor, material or services can be used to meet the cost
share if program income is less than anticipated during the performance period for the
cooperative agreement.
Finally, the cost share requirement must be included in the approved budget and tracked
and reported to EPA by the grant recipient.
Eligible programmatic costs may be used to help meet the RLF cooperative agreement
recipient's 20% cost share requirement. See Appendix 5 for discussion of eligible programmatic
costs.
V. RLF cooperative agreement recipients are prohibited from using grant funding for
administrative costs.
The Brownfields Law prohibits the use of any "part of a grant or loan" for the payment of
an administrative cost. Direct administrative costs are prohibited costs. The new law provides
that the administrative cost prohibition does not apply to: investigation and identification of the
extent of the contamination; design and performance of a response action; or monitoring of a
natural resource. EPA has determined that the administrative cost prohibition does not apply to
"programmatic" costs, i.e., costs for activities that are integral to achieving the purpose of the
grant, even if the Agency considered costs to be "administrative" under the prior Brownfields
Program. Under new law, BCRLF pilots that choose to transition will no longer be able to use
their grant funds to pay for prohibited administrative costs. See Appendix 5 for a discussion
of the administrative cost prohibition and the eligibility of programmatic costs. Please note
Appendix 1. Summary of Major Changes under the Brownfields Law Page 19
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particularly that prohibited administrative costs include all indirect costs under OMB Circular
A-87.
VI. RLF cooperative agreement recipients are required to apply provisions of the National
Oil and Hazardous Substances Contingency Plan (NCP) that EPA has determined are
"relevant and appropriate to the program."
EPA may require a BCRLF pilot that transitions, or new RLF cooperative agreement
recipients, to apply parts of the NCP to the extent the provisions are "relevant and appropriate
to the program. " Relevant and appropriate provisions will be addressed through terms and
conditions in the new replacement transition cooperative agreement. For those pilots choosing to
transition, new terms and conditions will be negotiated with the Region. These terms and
conditions are expected to provide the cooperative agreement recipient with program flexibility.
For example, an existing BCRLF pilot is now required to have a site manager who is a
government employee. Upon transition, a new term and condition may allow oversight of a
cleanup to be conducted by an independent, qualified environmental professional.
EPA preliminary view is that NCP requirements for public information and community
relations as well as the analysis of alternatives may be relevant and appropriate. Similarly,
preparation of a community relations plan that includes reasonable notice of the proposed
cleanup plan, opportunity for community involvement, and response to community comments on
the plan may be relevant and appropriate. Consideration of cleanup alternatives6 (which may
include "no action") implemented through a simple, concise evaluation may be considered
relevant and appropriate. The RLF cooperative agreement recipient may be required to include
information about the site and contamination issues; cleanup objectives; cleanup alternatives to
address effectiveness, implementability, and cost; and the proposed cleanup plan.
For cleanup of contamination caused by petroleum releases from underground storage tanks, a party to a cooperative
agreement with EPA typically considers a range of proven cleanup methods to address such contamination. This consideration
includes identification of contaminant sources, exposure pathways and an evaluation of corrective measures; and for UST
petroleum cleanup projects conducted in this manner, the cleanup constitutes, the required analysis of cleanup alternatives.
Appendix 1. Summary of Major Changes under the Brownfields Law Page 20
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Appendix 2. Matrix of Major Changes
Major Changes Affecting Transitioning BCRLF Pilots"
AND FY2003 New Revolving Loan Fund (RLF) Guidelines
Old BCRLF PILOTS
New RLF
Requirements for old BCRLF
pilots and new RLF
cooperative agreement
recipients or transitioning
pilots
Pre Legislation BROWNFIELDS
PROGRAM - through FY2002
"OLD FUNDING"
The BCRLF demonstration pilot
program was originally funded under
§104(d)(l) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended (CERCLA).
Regulations applicable to that program
included 40 C.F.R. Part 31 (Uniform
Administration Requirements for Grants
and Cooperative Agreements to State
and Local Governments), 40 C.F.R. Part
35, Subpart O (Cooperative Agreements
for Superfund Response Actions), and
40 C.F.R. Part 300 (The National Oil
and Hazardous Substances Pollution
Contingency Plan).
New Law (P.L. 107-118) - Beginning
2003
"NEW FUNDING"
The BCRLF pilots choosing to transition
under the new law (§ 104(k)) will be
required to follow the new law.
Regulations applicable to the transition as
well as new cooperative agreements will
include 40 C.F.R. Part 31 (Uniform
Administration Requirements for Grants
and Cooperative Agreements to State and
Local Governments), and "relevant and
appropriate" provisions of the NCP as
determined by EPA.
Funding for BCRLF and RLF
Cooperative Agreements
BCRLF cooperative agreement awards
of up to $1,000,000 per eligible entity.
Proposals from coalitions were
permitted
Initial Revolving Loan Funds (RLF)
awards may be up to $1,000,000 per
eligible entity. Proposals from
coalitions are permitted. EPA may
provide supplemental funding.
Appendix 2. Matrix of Major Changes
Page 21
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Major Changes Affecting Transitioning BCRLF Pilots"
AND FY2003 New Revolving Loan Fund (RLF) Guidelines
Old BCRLF PILOTS
New RLF
List of Eligible Governmental
Entities for RLF Awards is
Expanded
Eligibility for cooperative agreements
was limited to states, political
subdivisions, and Indian Tribes.
Eligibility has been expanded to include:
> A general purpose unit of local
government
> A land clearance authority or
other quasi-governmental
entity that operates under the
supervision and control of or
as an agent of a general
purpose unit of local
government
> A governmental entity created
by the State legislature;
> A regional council or group of
general purpose units of local
government
> A redevelopment agency that
is chartered or otherwise
sanctioned by a State
> A State
> An Indian Tribe other than in
Alaska
> An Alaska Native Regional
Corporation and an Alaska
Native Village Corportion as
those terms are defined in the
Alaska Native Claims
Settlement Act (43 U.S.C. 1601
and following) and the
Metlakatla Indian community
- AND, existing BCRLF pilots
choosing to transition under new
law or apply for new cooperative
agreements under the new law
Flexibility to Make BOTH
RLF Loans and RLF
Cleanup Subgrants
Must use at least 70% of capitalization
to make BCRLF Loans; 20% may be
used as direct financial assistance to
carry out lead agency responsibilities;
and, 10% may be used for general
administrative costs
It is EPA policy that at least 60% funds
tof capitalize RLF loan pool and eligible
programmatic costs. No more than
40% for cleanup subgrants and eligible
programmatic costs.
Appendix 2. Matrix of Major Changes
Page 22
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Major Changes Affecting Transitioning BCRLF Pilots"
AND FY2003 New Revolving Loan Fund (RLF) Guidelines
Old BCRLF PILOTS
New RLF
Eligibility for RLF Loans
Loans may be made to any public or
private entity if:
A. is authorized to enter into a
loan agreement
B. is an owner/operator of a site
AND falls under a statutory
CERCLA liability exemption
OR EPA would not pursue the
party under CERCLA
C. is an owner/operator who
acquired property after the
time of disposal and did not
cause or contribute to the
contamination
D. is NOT a generator or
transporter of contamination at
the site
E. is NOT a party suspended or
debarred
Loans may be made to any eligible
entity, a site owner, a site developer, or
other person
who among other things:
A. is authorized to enter into a
loan agreement
B. on or before the date of
acquiring property, carried
out all appropriate inquiries to
meet the definition of
"innocent landowner."
C. is NOT using the funds to pay
for response costs at a site for
which they are potentially
liable under §107 of CERCLA.
D. is NOT a party suspended or
debarred
Eligibility for RLF
CLEANUP Subgrants
The BCRLF may NOT provide
subgrants for cleanup.
Subgrants for cleanup may be provided
to:
A. any eligible entity (other than
the recipient of the grant)
B. a nonprofit organization
The property must be OWNED by the
entity or nonprofit receiving the grant
and the decision to make the subgrant
must take into account the following
considerations:
* extent grant facilitates
creation, preservation or
addition to a park or
greenspace, undeveloped
property, or other property
used for nonprofit purposes;
* extent grant meets needs of
community that has inability
to draw on other resources for
cleanup and subsequent
redevelopment because of the
small population or low
income of the community;
* extent grant will facilitate
reuse of existing
infrastructure;
* the benefit of promoting the
long-term availability of funds
from a brownfields revolving
loan fund.
* other similar factors EPA
considers appropriate.
Appendix 2. Matrix of Major Changes
Page 23
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Major Changes Affecting Transitioning BCRLF Pilots"
AND FY2003 New Revolving Loan Fund (RLF) Guidelines
Old BCRLF PILOTS
New RLF
Definition of Brownfields
Site is expanded to reach
petroleum sites, mine
scarred land and drug lab
sites.
Abandoned, idled or underused
industrial and commercial facilities
where expansion or redevelopment is
complicated by real or perceived
environmental contamination.
CERCLA EXCLUDES petroleum
from the definition of hazardous
substances.
"Real property" the expansion,
redevelopment, or reuse of
which is complicated by the
presence or potential presence
of a hazardous substance,
pollutant, or contaminant.
Expressly includes 'relatively
low risk' petroleum sites, mine
scarred lands, and sites
contaminated by a controlled
substance (i.e., drug labs). The
definition excludes certain
types of sites including
facilities listed (or proposed
for listing) on the National
Priorities List.
Appendix 3: Guidance on Sites Eligible
for Brownfields Funding Under
CERCLA §104(k).
Use of EPA funding for
Administrative Costs
10% - 15% of cooperative agreement
award to RLF recipient may be used to
cover the recipient's general
administrative costs depending on
financial structure of the pilot.
Administrative costs are prohibited
under the RLF cooperative agreement.
Certain programmatic expenses
including direct costs for managing the
RLF will be eligible. Appendix 5:
Prohibition on Use of Funds.
Cost Sharing Fund
Requirements
No cost share funds required by
cooperative agreement recipient.
New 20% cost share requirement. Cost
share may be in the form of case, labor,
material, or services. A cost share may
not be required if EPA determines that
the cost share would place an undue
hardship on the eligible entity.
Meeting NCP
Requirements
All environmental response
requirements must be conducted in
accordance with CERCLA and
consistent with the NCP.
NCP requirements apply ONLY to
extent they are relevant and appropriate
to the program as determined by EPA.
Regulations Regarding
Administration of BCRLF
Cooperative Agreements
The requirements of 40 C.F.R. Part 31
and 40 C.F.R. Part 35 Subpart O must be
met.
40 C.F.R. Part 35 Subpart O
requirements not imposed under new
law. Grants are subject to 40 C.F.R.
Part 31.
Recordkeeping
Requirements
Cooperative agreement recipients and
borrowers must maintain documentation
for a minimum of 10 years after
completion of the cleanup activity
supported by each loan and must obtain
written approval from the U.S. EPA
prior to destroying records (40 C.F.R.
35.6705).
Records must be kept for at
least 3 years from the
grantee's submission of its
final expenditure report in
accordance with 40 CFR 31.42.
BCRLF pilots that transition
must keep separate records for
activities and expenditures
prior to transition and
activities and expenditures
following transition. Records
following transition must be
able to differentiate petroleum
and non-petroleum grants,
cost-share requirements, etc.
Appendix 2. Matrix of Major Changes
Page 24
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Appendix 3. Guidance on Sites Eligible for Brownfields
Funding Under CERCLA §104(k)
Contents Page
3.1 Introduction 26
3.2 General Definition of Brownfield Site 26
3.3 Additional Areas Specifically Eligible for Funding 26
3.3.1 Contamination by Controlled Substance 27
3.3.2 Contamination by Petroleum or Petroleum Product 27
3.3.3 Mine-scarred Lands 28
3.4 Particular Classes of Sites Not Eligible for Funding or Eligible Only Under Property-
specific Determinations 29
3.4.1 Facilities Subject to CERCLA Removal Actions 31
3.4.2 Facilities Subject to Unilateral Administrative Orders, Court Orders,
Administrative Orders on Consent or Judicial Consent Decree Issued to or
Entered into by Parties Under CERCLA 32
3.4.3 Facilities Listed (or Proposed for Listing) on the National Priorities List. ... 32
3.4.4 Facilities to which a permit has been issued by the United States or an
authorized state under the Solid Waste Disposal Act (RCRA), the Federal Water
Pollution Control Act, the Toxic Substances Control Act, or the Safe Drinking
Water Act 32
3.4.5 RCRA Sites 33
3.4.6 Land disposal units that have filed a closure notification under Subtitle C of
RCRA and to which closure requirements have been specified in a closure plan
or permit. 34
3.4.7 Facilities that are subject to the jurisdiction, custody or control of the United
States government 34
3.4.8 Sites Contaminated with PCBs 35
3.4.9 Exclusion of LUST Trust Fund Sites 36
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Appendix 3: Guidance on Sites Eligible for Brownfields Funding
Under CERCLA Section 104(k)
3.1 Introduction
The information provided in this appendix should be used by applicants as a guide in
determining the eligibility of any property for brownfields funding. The following guidance
provides the EPA's preliminary views on the types of sites that may be appropriate for funding.
EPA is providing this information as guidance to applicants to assist you in developing your
proposals for funding under CERCLA §104(k). This guidance provides preliminary
interpretations and policy guidance that EPA intends to use as a guide when we exercise our
authority to award funds under §104(k). However, we believe that further development may
impact our view of these provisions, and we will reevaluate our preliminary views in light of the
factual information we receive with each proposal, as well as over the course of implementing
the §104(k) grant program.
This guidance does not impose legally-binding requirements. Applicants are free to raise
questions about the appropriateness of these preliminary views, and EPA will consider whether
these preliminary views are appropriate at that time. Any decision by EPA to apply this
preliminary guidance will be made based on the applicable statutory provisions.
3.2 General Definition ofBrownfield Site
The new Brownfields Law defines a "Brownfield Site" to mean:
" ...real property, the expansion, redevelopment, or reuse of which may be
complicated by the presence or potential presence of a hazardous substance,
pollutant, or contaminant.'"
Brownfield sites include all "real property," including residential, as well as commercial
and industrial properties.
3.3 Additional Areas Specifically Eligible for Funding
The Brownfields Law identifies three types of properties that are specifically eligible for
funding:
* Sites contaminated by controlled substances.
> Sites contaminated by petroleum or a petroleum product.
> Mine-scarred lands.
See below for guidance on determining the scope of each of these three types of sites.
Applicants should identify properties included within their funding proposals that fall within the
scope of any of the following three areas.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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3.3.1 Contamination by Controlled Substance
Sites eligible for funding include real property, including residential property, that is
contaminated by a controlled substance. A "controlled substance" is defined under the
Controlled Substances Act as "a drug or other substance, or immediate precursor, included in
schedule I, II, III, IV, or V of part B of this title (21 USC Section 812). The term does not
include distilled spirits, wine, malt beverages, or tobacco..."
For example, sites eligible for brownfields funding may include private residences, formerly
used for the manufacture and/or distribution of methamphetamines or other illegal drugs where
there is a presence or potential presence of controlled substances or pollutants, contaminants, or
hazardous substances (e.g., red phosphorous, kerosene, acids).
3.3.2 Contamination by Petroleum or Petroleum Product
Petroleum-contaminated sites (except those sites receiving LUST trust fund monies) are eligible
for brownfields funding. Petroleum-contaminated sites (or portions of properties contaminated
with petroleum) that are eligible for brownfields funding include certain sites that are not
underground storage tank (UST) sites, as described below. Petroleum is defined under
CERCLA as "crude oil or any fraction thereof which is not otherwise specifically listed or
designated as a hazardous substance under that section."
Applicants should note that the Brownfields Law restricts eligibility for brownfields funding to
petroleum contaminated sites that EPA or the state determines:
1. Are of "relatively low risk" compared with other "petroleum-only" sites in the state; and
2. For which there is no viable responsible party and will be assessed, investigated, or
cleaned up by a person that is not potentially liable for cleaning up the site.
In addition, petroleum-contaminated sites must not be subject to a corrective action order under
the Resource Conservation and Recovery Act (RCRA) §9003(h) order.
In the case of proposals that include requests for an assessment or direct clean up grant, or a
grant for a revolving loan fund, to address petroleum-contaminated sites, applicants are
encouraged to indicate whether the site meets each of the criteria listed above. An explanation
of each of these three criteria is provided below.
Relatively Low Riski
Applicants whose brownfield site(s) include properties or portions of properties contaminated
with petroleum or petroleum products are encouraged to provide information in their proposal
indicating that the property represents a relatively low risk (compared to other petroleum-only
sites). Our preliminary view is that the following types of petroleum-contaminated sites are high
risk sites, or are not of "relatively low risk." Our preliminary view is that petroleum-
contaminated sites that do not fall within scope of high risk sites, will be considered to be
"relatively low-risk" sites.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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"High risk" sites currently being cleaned up using LUST trust fund monies.
Any petroleum-contaminated site that currently is subject to a response under the Oil
Pollution Act (OPA).
Note: Any site that does not fall under any of the provisions listed above would be considered to
be of relatively low risk for purposes of determining eligibility for a brownfields grant.
"No Viable Responsible Party "and "Cleaned Up by a Person Not Potentially Liable":
Brownfields funding may be awarded to eligible entities for the assessment and cleanup of
petroleum-contaminated sites in those instances where the eligible entity has not caused or
contributed to the petroleum contamination. When responding to the threshold criteria in their
funding proposals, applicants are asked to indicate whether or not the applicant owns the site or
sites for which funding is requested and describe whether the applicant is responsible for any of
the environmental concerns at the site(s).
Please note that eligibility for a brownfields grant DOES NOT waive liability under RCRA
Subtitle I, OP A, or any applicable state underground storage tank regulations.
"Not Subject to any Order Issued under RCRA 9003(h) ":
Any site that is under a RCRA Subtitle I corrective action order (RCRA §9003(h)) is not
eligible for a grant.
Applicants should note that any determination that a site is of "relatively low risk" has meaning
solely for the purposes of determining eligibility for a brownfields grant and has no effect on
potential liability under RCRA §9003(h) (for the costs of corrective action and enforcement) or
liability under other federal statutes such as under §31 l(c) of the Clean Water Act (CWA) and
§1002 of OP A (for removal costs and damages that result from the discharge of oil into
navigable waters).
3.3.3 Mine-scarred Lands
Under the new Brownfields Law, mine-scarred lands are eligible for brownfields funding.
Applicants for brownfields funding that include properties within their proposal that they
believe fall within the following definition of mine-scarred lands are encouraged to provide in
the site description section of their proposals information identifying and describing such
properties.
EPA's preliminary view is that "mine scarred lands" are those lands, associated waters, and
surrounding watersheds where extraction, beneficiation or processing of ores and minerals
(including coal) has occurred. For the purposes of this section, the definition of extraction,
beneficiation, and processing is the definition found at 40 CFR 261.4(b)(7).
Mine-scarred lands include abandoned coal mines and lands scarred by strip mining.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Examples of coal mine scarred lands may include, but are not limited to:
abandoned surface coal mine areas,
abandoned deep coal mines,
abandoned coal processing areas,
abandoned coal refuse areas,
acid or alkaline mine drainage, and
associated waters affected by abandoned coal mine (or acid mine) drainage or runoff
including stream beds and adjacent watersheds.
Examples of non-coal hard rock mine scarred lands may include, but are not limited to:
abandoned surface and deep mines,
abandoned waste rock or spent ore piles,
abandoned roads constructed wholly or partially of waste rock or spent ore
abandoned tailings, disposal ponds, or piles,
abandoned ore concentration mills,
abandoned smelters,
abandoned cyanide heap leach piles,
abandoned dams constructed wholly or partially or waste rock, tailings, or spent ore
abandoned dumps or dump areas used for the disposal of waste rock or spent ore,
acid or alkaline rock drainage, and
waters affected by abandoned metal mine drainage or runoff including stream beds and
adjacent watersheds.
3.4 Particular Classes of Sites Not Eligible for Funding or Eligible Only Under Property-
specific Determinations
EPA excludes the following types of facilities from funding eligibility unless the applicant
fulfills the requirements for demonstrating that the site meets the criteria for a property-specific
determination for funding (see Appendix 4 Guidance for Requests for Property-Specific
Determinations for Funding). Applicants are encouraged to indicate within the site description
section of their proposal if any site or property included within the scope of their funding
proposal falls within the scope of any of the categories of sites listed below. When requesting a
property-specific determination for funding, applicants should follow the instructions provided
in Appendix 4 for indicating that brownfields funding at such sites will ensure protection of
human health and the environment and promote economic development or the creation or
preservation of greenspace or recreational areas. (Note: The following discusses limitations on
funding particular classes of sites. Many of these limitations reflect policy decisions. Where the
limitations are based on statutory provisions, we have noted that.)
Also, please note that in providing funding for brownfield sites, and given that a limited amount
of funding is available for brownfields grants, EPA's goal is to not provide funding to sites to
where EPA has a planned or ongoing enforcement action. While EPA does not intend that the
existence of a planned or ongoing enforcement action will necessarily disqualify a site from
receipt of brownfields funding, EPA does believe it is necessary that EPA be aware of the
existence of any such action in making funding decisions. As a result, EPA will conduct an
investigation to evaluate whether a site is, or will be, subject to an enforcement action under
CERCLA or other federal environmental statutes. EPA is requesting that applicants identify
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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ongoing or anticipated environmental enforcement actions related to the brownfield site for
which funding is sought.
The Brownfields Law also excludes three types of properties from funding eligibility and does
not allow EPA the opportunity to provide funding for these properties after making a property-
specific determination. These three types of properties include: 1) sites listed on the NPL, 2)
facilities subject to unilateral administrative orders, court orders, administrative orders on
consent or judicial consent decree issued to or entered into by parties under CERCLA, and 3)
facilities that are subject to the jurisdiction, custody or control of the United States government.
Sites Not Eligible for Funding Without a Property-Specific Determination
1. Facilities subject to planned or ongoing CERCLA removal actions.
2. Facilities that are subject to unilateral administrative orders, court orders,
administrative order on consent or judicial consent decree or to which a permit has
been issued by the United States or an authorized state under the Solid Waste
Disposal Act (as amended by the Resource Conservation and Recovery Act
(RCRA)), the Federal Water Pollution Control Act (FWPCA), the Toxic
Substances Control Act (TSCA), or the Safe Drinking Water Act (SDWA).
3. Facilities subject to corrective action orders under RCRA (§ 3004(u) or §3008(h))
and to which a corrective action permit or order has been issued or modified to
require the implementation of corrective measures.
4. Facilities that are land disposal units that have filed a closure notification under
subtitle C of RCRA and to which closure requirements have been specified in a
closure plan or permit.
5. Facilities where there has been a release of poly chlorinated biphenyls (PCBs) and
are subject to remediation under TSCA.
6. Portions of facilities for which funding for remediation has been obtained from the
Leaking Underground Storage Tank (LUST) Trust Fund.
Guidance regarding the scope of each of the funding restrictions listed above is provided
below.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Sites NOT Eligible for Brownfields Fund and NOT Eligible for a
Property-Specific Determination
1. Facilities listed (or proposed for listing) on the National Priorities List (NPL).
2. Facilities subject to unilateral administrative orders, court orders, administrative
orders on consent or judicial consent decree issued to or entered into by parties
under CERCLA.
3. Facilities that are subject to the jurisdiction, custory or control of the United States
government. (Note: Land held in trust by the United States government for an
Indian tribe is eligible for brownfield funding.
3.4.1 Facilities Subject to CERCLA Removal Actions
Properties (including parcels of properties) where there are removal actions may not receive
funding, unless EPA makes a property-specific determination of funding eligibility.
EPA's preliminary view is that a removal may be identified by the occurrence of one of the
following events, whichever occurs first in time: EPA issues an action memo, EPA issues an
EE/CA approval memo; EPA mobilizes onsite; or EPA issues a notice of federal interest to one
or more potentially responsible parties (PRP(s)), which in emergencies may be made verbally.
Our preliminary view is that, for the purposes of eligibility to receive brownfields funding, and
for no other reason, a removal is complete, i.e., when the actions specified in the action
memorandum are met, or when the contractor has demobilized and left the site (as documented
in the "pollution report" or POLREP.). Once a removal action is complete, a property is eligible
for brownfields funding without having to obtain a property-specific funding determination.
Applicants applying for brownfields funding for sites at which removal actions are complete
must include documentation of the action being complete with their funding proposal.
Parcels of facilities not affected by removal action at the same property may apply for
brownfields funding and may be eligible for brownfields funding on a property-specific basis.
Property-specific funding decisions will be made in coordination with the on-scene coordinator
(OSC) to ensure that all removals and clean up activities at the property are conducted in safe
and protective manners and to ensure that the OSC retains the ability to address all risks and
contamination.
Please note that if a federal brownfields-funded site assessment results in identifying the need for
a new removal action, the grantee may continue to expend assessment grant funds on additional
assessment activities. However, any additional expenditure of federal brownfield funds and any
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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additional site assessment activities should be conducted in coordination with the OSC for the
site.
Any property or site where there are removal actions may be eligible for brownfields funding if a
grant or loan applicant can demonstrate that brownfields funding will ensure protection of
human health and the environment and promote economic development, or the preservation of
greenspace. EPA will consider providing funding to an eligible entity for assessment or clean up
activities at the site, on a property-specific basis (see guidance on documenting eligibility for
property-specific funding determinations provided below).
3.4.2 Facilities Subject to Unilateral Administrative Orders, Court Orders, Administrative
Orders on Consent or Judicial Consent Decree Issued to or Entered into by Parties
Under CERCLA
Sites subject to administrative orders, court orders, and consent or judicial consent decrees
issued or entered into by parties under the provisions of CERCLA are not eligible for funding,
even on a property-specific basis. Therefore, applicants should not include such sites within the
scope of their brownfields funding proposals.
3.4.3 Facilities listed (or proposed for listing) on the National Priorities List
CERCLA sites listed on the NPL and sites proposed to be listed on the NPL are not eligible for
brownfields funding. In addition, these sites are not eligible for funding on a property-specific
basis. Therefore, applicants should not include proposed or listed NPL sites within the scope of
brownfields funding proposals.
3.4.4 Facilities to which a permit has been issued by the United States or an authorized state
under the Solid Waste Disposal Act (RCRA), the Federal Water Pollution Control Act,
the Toxic Substances Control Act, or the Safe Drinking Water Act
Generally, in cases where a property or a portion of a property is permitted under the Resource
Conservation and Recovery Act, §1321 of the Clean Water Act, the Safe Drinking Water Act,
and/or the Toxic Substances and Control Act, the property, or portion of the property, may not
receive funding, without a property-specific determination. Therefore, applicants should review
the following guidance regarding which types of permitted facilities may not receive funding
unless EPA makes a property-specific determination to provide funding. Applicants should note
that the exclusion for permitted facilities does not extend to facilities with National Pollutant
Discharge Elimination System (NPDES) permits issued under the authorities of the Federal
Water Pollution Control Act, but is limited to facilities issued permits under the authorities of the
Oil Pollution Act (i.e., §1321 of FWPCA).
In cases where one or more portions of a property are not eligible for funding, the applicant
should identify the specific permit and situation that causes the property to be excluded. In
addition, the applicant must include, within the proposal, documentation that federal brownfields
funding for the assessment or clean up of the property will further the goals established for
property-specific funding determinations (see attached guidance on property-specific funding
determinations).
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Any property or site that has been issued a permit under the federal environmental statutes listed
above (and in accordance with any additional guidelines provided below) may be eligible for
brownfields funding if a grant or loan applicant can demonstrate that brownfields funding will
ensure protection of human health and the environment and promote economic development, or
the preservation of greenspace. EPA will consider providing funding to an eligible entity for
assessment or cleanup activities at the site, on a property-specific basis (see guidance on
documenting eligibility for property-specific funding determinations provided below).
In some cases, a facility may not have a permit or order because they are not in compliance with
federal or state environmental laws requiring that they obtain a permit or the facility has failed to
notify EPA of their regulatory status. Such facilities are not eligible for brownfields funding.
For example, a RCRA treatment unit operator is required to obtain a permit and/or notify EPA of
its operation. An operator that fails to fulfill those obligations will likely not have a permit or
order as EPA will be unaware of their existence. Therefore, it is EPA's preliminary view that
such facilities are ineligible to receive brownfields funds as a result of their failure to comply
with a basic regulatory requirement. Additional guidance on the eligibility of RCRA-permitted
facilities, including facilities under administrative or court orders, including corrective action
orders is provided below.
3.4.5 RCRA Sites
Excluded RCRA Facilities
EPA's preliminary view is that the following types of RCRA facilities may not receive funding
without a property-specific determination:
RCRA-permitted facilities.
RCRA interim status facilities with administrative orders requiring the facility to conduct
corrective action or otherwise address contamination, including facilities with orders
issued under the authorities of RCRA §3008(a), §3008(h), §3013, and §7003.
Facilities under court order or under an administrative order on consent or judicial
consent decree under RCRA or CERCLA that require the facility to conduct corrective
action or otherwise address contamination at the facility.
Land disposal units that have notified EPA or an authorized state of their intent to close
and have closure requirements specified in closure plans or permits.
However, if a grant or loan applicant is requesting a grant for property that is excluded, the
applicant may still be eligible for a brownfields grant, if the applicant can demonstrate that
funding will ensure protection of human health and the environment and promote economic
development, or the preservation of greenspace. EPA will consider providing funding to an
applicant for assessment or cleanup activities at such a site on a property-specific basis (see
guidance on documenting eligibility for property-specific funding determinations below).
RCRA Facilities that are Eligible for Funding
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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EPA's preliminary view is that the following types of RCRA facilities would not fall within the
scope of the exclusion and would be eligible for funding:
RCRA interim status facilities that are not subject to any administrative or judicial order
or consent decree;
RCRA interim status facilities that are subject to administrative or judicial orders that do
not include corrective action requirements or any other cleanup provisions (e.g., RCRA
§3008(a) orders without provisions requiring the owner/operator to address
contamination); and
Parcels of RCRA facilities that are not under the scope of a RCRA permit or
administrative or judicial order.
In addition, any property or site that has been issued a permit under RCRA may be eligible for
brownfields funding if a grant or loan applicant can demonstrate that brownfields funding will
ensure protection of human health and the environment and promote economic development, or
the preservation of greenspace. EPA will consider providing funding to an eligible entity for
assessment or clean up activities at the site, on a property-specific basis (see guidance on
documenting eligibility for property-specific funding determinations provided below).
3.4.6 Land disposal units that have filed a closure notification under Subtitle C of RCRA
and to which closure requirements have been specified in a closure plan or permit.
RCRA hazardous waste landfills that have submitted closure notifications, as required under 40
CFR 264.112(d) or 265.112(d) generally will not be funded. This may include permitted
facilities that have filed notification of closure and for which EPA and/or an authorized state is
proceeding with final closure requirements for the facility. For interim status facilities, this is
done through approval of a closure plan submitted with closure notification; for permitted
facilities, this is routinely done as a modification to the permit, requested by the facility at the
time of closure notification.
Please note that RCRA hazardous waste landfills that have submitted closure notifications may
be eligible for brownfields funding if a grant or loan applicant can demonstrate that brownfields
funding will ensure protection of human health and the environment and promote economic
development, or the preservation of greenspace. EPA will consider providing funding to an
eligible entity for assessment or cleanup activities at the site, on a property-specific basis (see
guidance on documenting eligibility for property-specific funding determinations provided
below).
3.4.7 Facilities that are subject to the jurisdiction, custody or control of the United States
government.
Facilities owned by, or under the custody or control of the federal government are not eligible
for brownfields funding, even on a property-specific basis. EPA's preliminary view is that this
exclusion may not extend to:
Privately-owned, Formerly Used Defense Sites (FUDS)
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Privately-owned, Formerly Utilized Sites Remedial Action Program (FUSRAP)
properties
Other former Federal properties that have been disposed of by the U.S. government
Also note that land held in trust by the United States government for an Indian tribe is not
excluded from funding eligibility.
Also note that eligibility for brownfields funding does not alter a private owner's ability to cost
recover from the federal government in cases where the previous federal government owner
remains liable for environmental damages.
3.4.8 Sites Contaminated with PCBs
The Brownfields Law excludes, from funding eligibility, portions of facilities where there has
been a release of PCBs that are subject to remediation under TSCA.
EPA's preliminary view is that all portions of properties are eligible for brownfields site
assessment grants, except where EPA has initiated an involuntary action with any person to
address PCB contamination. Also, it is our preliminary view that all portions of properties are
eligible for cleanup and RLF grants, except where EPA has an ongoing action against a disposer
to address PCB contamination.
Therefore, portions of properties that are excluded from funding eligibility include those portions
of properties where:
There is a release (or disposal) of any waste meeting the definition of "PCB remediation
waste" at 40 CFR 761.3; and
At which EPA has an initiated an involuntary action with any person to address the PCB
contamination. Such involuntary actions could include:
Enforcement action for illegal disposal,
Regional Administrator's order to characterize or remediate a spill or old
disposal (40 CFR 761.50(b)(3)),
Penalty for violation of TSCA remediation requirements,
Superfund removal action, or
Remediation required under RCRA §3004(u) or §3004(v).
PCBs may be remediated under any one of the following provisions under TSCA:
Section 761.50(b)(3), the directed characterization, remediation or disposal action.
Section 761.61(a), the self-implementing provision.
An approval issued under Section 761.61(c), the risk-based provision.
Section 761.61(b) to the level of PCB quantification (i.e., 1 ppm in soil).
An approval issued under Section 761.77, the coordinated approval provision.
Section 761.79, the decontamination provision.
An existing EPA PCB Spill Clean-Up Policy.
Any future policy or guidance addressing PCB spill cleanup or remediation specifically
addressing the remediation of PCBs at brownfield sites.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Note that any portion of a property where EPA has initiated an involuntary action with any
person to address PCB contamination and portions of properties where EPA has an ongoing
action against a disposer to address PCB contamination may be eligible for brownfields funding
if a grant or loan applicant can demonstrate that brownfields funding will ensure protection of
human health and the environment and promote economic development, or the preservation of
greenspace. EPA will consider providing funding to an eligible entity for assessment or cleanup
activities at the site, on a property-specific basis (see guidance on documenting eligibility for
property-specific funding determinations provided below).
3.4.9 Exclusion ofL VST Trust Fund Sites
The Brownfields Law excludes from eligibility for funding (unless EPA makes a property-
specific determination for funding) those sites (or portions of properties) for which assistance for
response activity has been obtained under Subtitle I of RCRA from the LUST trust fund. EPA's
preliminary view is that this provision may exclude:
UST sites where money is being spent on actual assessment and/or cleanup of
UST/petroleum contamination.
However, in cases where an UST site is located in a state where the state agency has used LUST
trust fund money for state program oversight activities but has not expended LUST trust funds
for specific assessment and/or cleanup activities at the site, the site would not necessarily be
excluded from eligibility for brownfields funding.
Such sites may receive brownfields funding on a property-specific basis, if it is determined that
brownfields funding will protect human health and the environment and the funding will
promote economic development or enable the creation of, preservation of, or addition to
greenspace (see guidance on documenting eligibility for property-specific funding
determinations provided below).
Examples of "excluded" sites (i. e., sites receiving LUST trust fund monies) we would consider
to be good candidates to receive brownfields grants or loans
All UST fields pilots (50 pilots)
Sites (or portions of properties) where an assessment was completed using LUST trust
fund monies and the state has determined that the site is a low priority UST site and
therefore additional LUST money cannot be provided for the cleanup of petroleum
contamination, but the site still needs some cleanup and otherwise is a good candidate for
economic revitalization.
Sites (or portions of properties) where LUST money was spent for emergency activities,
but then the site was determined to be ineligible for further expenditures of LUST trust
funds, yet the site needs additional funding for continued assessment and/or cleanup that
will contribute to economic revitalization of the site.
Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k)
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Appendix 4. Guidance for Requests for Property-
Specific Determinations for Funding
Guidance for Requests for Property-Specific Determinations for Funding
4.1 Overview 38
4.2 Funding Limitations 38
4.3 Criteria for Determining Eligibility for Funding on a Property-Specific Basis ... 40
4.3.1 Protection of Human Health and the Environment 41
4.3.2 Promote Economic Development 41
4.3.3 Creation of, Preservation of, or Addition to Parks, Greenways,
Undeveloped Property, other Recreational Property, or
Other Property Used for Nonprofit Purposes 41
4.3.4 Other Documentation 42
4.4 Properties Not Eligible for Brownfields Funding 42
4.5 Additional Information on Potential for Continual Funding at Sites Subject to
Removal Actions 43
4.6 Additional Information on Potential Funding for Petroleum-contaminated Sites . 43
4.7 Eligible Response Sites / Enforcement Limits 44
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APPENDIX 4
Guidance for Requests for Site-by-Site Determinations for Funding
4.1 Overview
Grant applicants must determine if any of the properties, or facilities, included in their proposal
require a property-specific determination. A list of the categories of facilities that only are
eligible for funding via a site-by-site determination is provided below.
If an applicant includes within the scope of a grant proposal a facility that requires a property-
specific funding determination, the proposal must include, on a separate page, the following
information (to the extent this information replicates information requested elsewhere in the
proposal, the applicant may directly copy the text to this page):
1. Basic site identification information and eligible entity identification information.
2. The specific circumstance that requires the grantee to request a property-specific
determination (from the list in Section 3.4 of Appendix 3).
3. A short explanation of why the site falls within the identified circumstance requiring the
property-specific funding determination.
4. An explanation of how providing brownfields funding for the site will meet the criteria
necessary for making a property-specific funding determination (see below).
5. The degree to which other funding is or is not available for the assessment or cleanup of
the site.
6. A explanation of whether or not the applicant is responsible for the contamination at a
site.
The information provided will be used in making a property-specific determination for funding
purposes, which will take place during the proposal evaluation process.
4.2 Funding Limitations
Although the statutory definition of "brownfield site" is broad, Congress limited the extent to
which brownfields/Mttrfi'ttg may be provided to eligible entities to assess and clean up sites that
are being addressed under other federal programs. In addition, the Brownfields Law prohibits
the use of grant and loan funds for the payment of response costs at sites for which the funding
recipient of the grant or loan is potentially liable under §107 of CERCLA.7 (See Appendix 5 for
additional prohibitions on the use of brownfields funding.)
The types of facilities that Congress excluded from funding eligibility are listed below.
However, certain facilities listed below as excluded from funding eligibility, may still qualify for
brownfields funding. The types of facilities marked with an asterisk (*) below are eligible for
brownfields funding, if a property-specific determination is made that funding for assessment or
7 Applicants also should note that the Brownfields Law contains other prohibitions on the use of grant and
loan monies, including the use of grant and loan monies for paying penalties, administrative costs, federal cost-share
requirements, and the cost of complying with any federal law (see §101(k)(4)(B)).
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 38
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cleanup activities will meet the criteria set forth in the statute and meet the goals and criteria of
the brownfields program.
Facilities subj ect to planned or ongoing removal actions under CERCLA. *
Facilities currently listed, or proposed to be listed, onNPL.
Facilities subject to a unilateral administrative order, a court order, an administrative
order on consent or a judicial consent decree under CERCLA.
Facilities that have been issued or entered into a unilateral administrative order, a court
order, an administrative order on consent, or judicial consent decree or to which a permit
have been issued by the U.S. or an authorized state under RCRA, FWPCA, TSCA, or
SDWA.*
Facilities subject to RCRA corrective action (§3004(u) or §3008(h)) to which a corrective
action permit or order has been issued or modified to require the implementation of
corrective measures.*
Land disposal units that have submitted a RCRA closure notification or that are subj ect to
closure requirements specified in a closure plan or permit.*
Facilities subject to the jurisdiction, custody, or control of a department, agency, or
instrumentality of the U.S., except for land held in trust for an Indian tribe.
Portions of facilities where there has been a release of PCBs and is subject to TSCA
remediation.*
Facilities receiving monies for cleanup from the LUST trust fFund.*
* Sites eligible for property-specific funding determinations.
The types of facilities marked with an asterisk above may qualify for brownfields funding if EPA
makes a property-specific determination that brownfields funding will protect human health and
the environment and will either promote economic development or the creation, preservation, or
addition to parks, greenways, undeveloped property, other recreational property, or other
property used for nonprofit purposes. A determination of eligibility for funding will be made by
EPA at the time of proposal evaluation.
Grant applicants must determine whether the property or properties that are the subject of their
proposal fall within the scope of one or more of the funding exclusions listed above. Actual
determinations of eligibility or exclusion will be made by EPA. However, if one or more sites
that are the subject of a grant proposal fall within the scope of any of the facility types listed
above, the grant proposal should specifically identify the site or sites, identify the applicable
funding exclusion from the list above, and describe why each site falls within the exclusion.
Descriptions summarizing the scope of each of the funding exclusions listed above are provided
in Appendix 3 of these guidelines.
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 39
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4.3 Criteria for Determining Eligibility for Funding on Property-Specific Basis
Certain sites that are excluded from funding eligibility because the sites fall within the scope of
the statutory exclusions from the definition of "brownfield site"may qualify for brownfields
funding, if a property-specific determination is made that the sites meet the goals and criteria of
the brownfi elds program and the criteria set forth in the statute. The following types of facilities,
although excluded from the definition of brownfield site above, are eligible for property-specific
determinations for brownfields funding:
1. Facilities subj ect to planned or ongoing removal action under CERCLA.
2. Facilities to which a permit has been issued by U.S. or authorized state under RCRA,
FWPCA, TSCA, SDWA.
3. Facilities subject to RCRA orders requiring corrective action (§3004(u) or §3008(h)).
4. Land disposal units that have submitted a RCRA closure notification or that are subj ect to
closure requirements specified in a closure plan or permit.
5. Portions of facilities where there has been a release of PCBs and is subject to TSCA
remediation.
6. Facilities receiving monies for cleanup from the LUST trust fund.
In the case of each type of facility listed above, the new legislation allows EPA to award
financial assistance to an eligible entity for assessment or cleanup activities at the site, if it is
found that financial assistance will:
1. Protect human health and the environment, and
2. Either:
promote economic development, or
- enable the creation of, preservation of, or addition to parks, greenways,
undeveloped property, other recreational property, or other property used for
nonprofit purposes.
Grant proposals for brownfields funding that include, within the scope of planned assessment or
cleanup activities, sites, properties or facilities that potentially fall within any of the funding
exclusions listed above, should specifically identify such sites and explain, in as much detail as
possible, why the availability of brownfields funding will protect human health and the
environment and promote economic development or the creation or preservation of
greenspace (or other listed objectives). Information provided by the applicant in addressing
these criteria will be used in documenting the EPA's decision in making property-specific
determinations for funding eligibility.
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4.3.1 Protection of Human Health and the Environment
Grant applicants must provide a detailed discussion of how financial assistance for brownfields
assessment or clean up activities at each site for which a property-specific determination for
funding eligibility must be made will result in the allocation of funding in accordance with
legislative intent. Each proposal for financial assistance, including a recipient of a revolving
loan fund grant seeking EPA approval of loans, whose proposal includes one or more sites for
which a property-specific determination must be made must include a discussion of how
brownfields funding will ensure protection of human health and the environment.
Documentation supporting a determination that brownfields funding will ensure protection of
human health and the environment should include documentation of one or more of the
following:
Specific examples of human health risks that will be mitigated by activities funded under
a brownfields grant.
Specific environmental improvements that can reasonably be expected to result from
activities funded under a brownfields grant.
Specific examples of contamination that will be addressed, including the specific
hazardous substances, pollutants, or contaminants of concern and the environmental
media that will be addressed.
Description of how the proposed cleanup and redevelopment of the property will ensure
that the property will be protective of human health and the environment and that the
remedy will be both protective and consistent with the planned reuse of the property.
4.3.2 Promote Economic Development
Applicants also must provide detail on how financial assistance will promote economic
development or the creation of, preservation of, or addition to parks, greenways, undeveloped
property, other recreational property, or other property used for nonprofit purposes.
Documentation of economic development activities should include information such as the
following:
A description of economic development activities that can reasonably be expected to
occur as a result of brownfields funding (e.g., number of jobs created, estimated increase
in the property and/or profits/sales tax base to community, additional business expansion
or new business relocation that may occur within the community).
A description of how the redevelopment of the brownfields property will contribute to
community-wide redevelopment and revitalization plans with a specific emphasis on how
funding for the brownfields redevelopment is integral to the success of the community-
wide plan.
A description of new businesses or business expansions that are planned for the
brownfields property.
4.3.3 Creation of, Preservation of, or Addition to Parks, Greenways, Undeveloped Property,
other Recreational Property, or Other Property Used for Nonprofit Purposes
If brownfields funding will be used by the applicant to preserve or create greenspace,
recreational areas, undeveloped property, or property to be used for nonprofit purposes, the
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 41
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applicant should provide specific documentation of these activities in the proposal. Grant
proposals should provide specific information documenting how brownfields funding will result
in the creation of, preservation of, or addition to parks, greenways, undeveloped property, other
recreational property, or other property used for nonprofit purposes should include information
such as:
A description of the proposed park, recreational property, greenspace, undeveloped
space, or other type of property to be used for nonprofit purposes, including size, use, and
surrounding environment that will be preserved or created as a result of brownfields
funding.
An assessment of how the property will be used and by whom.
A description of how the property will be integrated with surrounding properties or
environments.
A description of how the property will be maintained or preserved for its continued use
as a greenspace, recreational area, etc.
When documenting compliance with these criteria, applicants may copy information provided
elsewhere in their proposal, if such information directly addresses the criteria. However, all
documentation must be comprehensive and specific to actual events that will be mitigated or can
reasonably be expected to occur as a result of federal brownfields funding, should the applicant
receive brownfields funding.
4.3.4 Other Documentation
Property-specific brownfields funding determinations will be made based upon the availability
of funding and the extent to which applicants can provide documentation that funding for
particular sites offers opportunities to protect human health and the environment and enhance
economic development or create or preserve greenspace (as the criteria is described above).
However, at the same time, Congress explicitly prohibited the use of federal brownfields funding
to reimburse liable parties for response costs. The statute prohibits grant and loan monies from
being used for the payment of response costs at brownfield sites for which the recipient of a
grant or loan is potentially liable (§101(k)(4)(B)(i)(IV)). Applicants are encouraged to address,
in the body of the proposal, why federal funding is appropriate for brownfields assessment
and/or cleanup at the site, given that brownfields funding cannot be used to reimburse liable
property owners for response activity costs.
4.4 Properties Not Eligible for Brownfields Funding
Grant applicants must keep in mind that the legislation excludes certain types of facilities from
qualifying for the property-specific funding determinations and therefore from federal
brownfields financial assistance. Sites or facilities that may not be included within the scope of
a grant proposal and for which brownfields grants and loans cannot be made available regardless
of property-specific circumstances include the following types of sites or facilities:
Facilities listed or proposed for listing on the NPL.
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 42
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Facilities subject to a unilateral administrative order, an administrative order, a court
order, an administrative order on consent, or judicial consent decree issued or entered
into by parties under CERCLA.
Facilities that are subject to the jurisdiction, custody, or control of the United States
government, except for land held in trust by the U.S. for an Indian Tribe.
Applicants should note that the discussion of property-specific determinations for funding sites
that are otherwise excluded from funding eligibility that is provided here only applies to funding
determinations. This discussion does not apply to, or have bearing on, any other property-
specific determinations or other aspects of the brownfields program. For example, a property-
specific determination for funding purposes in no way affects a facility's or an entity's status
with regard to EPA's enforcement and cost recovery authorities.
4.5 Additional Information on Potential for Continual Funding at Sites Subject to
Removal Actions
Some brownfield sites that receive federal brownfields assessment grants may, as a result of the
federally-funded site assessment require a CERCLA removal action. Under the Brownfields
Law (§ 101(39)(B)(i)), sites that are subject to planned or on-going removal actions under
CERCLA are excluded from funding eligibility. However, such sites may receive federal
brownfields funding, if a property-specific determination is made that such funding will meet the
property-specific determination criteria. Applicants should follow the procedures listed in the
previous section to request a property-specific determination. (Note: If a removal action is
required at a site where an assessment grant exists, the grantee does not need to obtain the
property-specific determination noted above. However, grant recipients must obtain approval
from the EPA removal OSC prior to any onsite work commencing).
Grant applicants requesting federal brownfields funding and recipients of revolving loan fund
grants seeking EPA approval of loans for sites at which a CERCLA removal action is planned or
on-going must document in their proposals (or loan approval requests) that the requested funding
will be used in accordance with legislative intent. Therefore, proposals must include a
discussion of how brownfields grant or loan funds will ensure protection of human health and the
environment and provide detail on how financial assistance will promote economic development
or the creation of, preservation of, or addition to parks, greenways, undeveloped property, other
recreational property, or other property used for nonprofit purposes. Requests for property-
specific determinations for funding for the assessment or clean up of properties where there is a
planned or ongoing removal action will be considered in the following circumstances: 1) when it
is clear a follow-on response action will be required to address long-term threats at a site; and 2)
in cases where portions of a site are not under the current scope of a planned or ongoing removal
action.
In addition to the specific criteria listed above, applicants also should explain in their proposal
the extent to which other funding sources are not available for the assessment and/or clean up of
the site or property. Federal brownfields funding cannot be used to reimburse liable parties for
response costs. In addition, federal brownfields funding may not be used for an ensuing removal
action. Applicants should specifically address, in the body of the proposal, why federal funding
is appropriate for brownfields assessment and/or cleanup at the site, given the Congressional
intent not to reimburse liable property owners for response activity costs.
4.6 Additional Information on Potential Funding for Petroleum-contaminated Sites
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 43
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As noted above, portions of facilities receiving assistance for response activities from the LUST
trust fund are excluded from eligibility for brownfields funding. However, these facilities are
eligible for funding on a property-specific basis. To assist applicants in determining whether
their sites are good candidates for property-specific funding determinations, below are examples
of "ineligible" sites {i.e., sites receiving LUST trust fund monies) EPA considers to be
potentially good candidates to receive brownfields grants or loans under the property-specific
determination provisions of the Brownfields Law (i.e., CERCLA §101(39)(C)).
All UST fields pilots.
Sites (or portions of properties) where an assessment was completed using LUST trust
fund monies and the state has not determined the site to be a "high risk"site and, although
an assessment was completed using LUST trust fund monies, the site needs further
assistance to conduct a cleanup. Although the site is otherwise a good candidate for
economic revitalization, additional LUST money cannot be provided for the cleanup of
petroleum contamination.
Sites (or portions of properties) where LUST money was spent for emergency activities,
and are otherwise determined to be ineligible for further LUST trust funds, yet the site
needs additional funding for continued assessment and/or cleanup that will contribute to
economic revitalization of the site.
4.7 Eligible Response Sites /Enforcement Limits
The Brownfields Law limits EPA's enforcement and cost recovery authorities at "eligible
response sites" where a response action is conducted in compliance with a state response
program. Section 101(40) defines an "eligible response site" by referencing the general
definition of a "brownfield site" in §101(39)(A) and incorporating the exclusions at §101(39)(B).
The law places further limitations on the types of sites included within the definition of an
eligible response site, but grants EPA the authority to include within the definition of eligible
response site, and on a property-specific basis, some facilities that are otherwise excluded from
the definition. Such property-specific determinations must be based upon a finding that limits on
enforcement will be appropriate, after consultation with state authorities, and will protect human
health and the environment and promote economic development or facilitate the creation of,
preservation, or addition to a park, a greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes. While the criteria appear similar to those for
determining eligibility for funding on a property-specific basis, the determinations are distinct,
will be made through a separate process, and may not be based on the same information
requested in this document for property-specific funding determinations.
Appendix 4. Guidance for Requests for Property-Specific Determinations Page 44
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Appendix 5. Prohibitions on Use of Funds
Grant funds may not be used for the payment of:
A penalty or fine.
A federal cost-share requirement (for example, a cost share required by other federal
funds).
An administrative cost (see below).
A response cost at a brownfield site for which the recipient of the grant or loan is
potentially liable under CERCLA §107.
A cost of compliance with any federal law, excluding the cost of compliance with laws
applicable to the cleanup.
Unallowable costs (e.g. lobbying and fund raising) under OMB Circulars A-21
(universities), A-87 (state, tribal, and local governments), or A-122 (nonprofit
organizations), and Subpart 31.2 of the Federal Acquisition Regulation (commercial
organizations), as applicable.
The following discussion of the administrative cost prohibition is provided to you for illustrative
purposes only. If you receive a grant as a result of this competition, your agreement will include
a more detailed term and condition specifying requirements for complying with the
administrative cost prohibition.
Administrative Cost Prohibition
The Brownfields Law prohibits the use of any "part of a grant or loan" for the payment of an
administrative cost. In implementing this prohibition, EPA has made a distinction between
prohibited administrative costs and eligible programmatic costs.
A. Administrative Costs. Direct administrative costs are prohibited costs, including those in
the form of salaries, benefits, contractual costs, supplies, and data processing charges,
incurred to comply with most provisions of the Uniform Administrative Requirements for
Grants contained in 40 CFR Part 30 or 40 CFR Part 31. Direct costs for grant
administration are ineligible even if the grantee or subgrantee is required to carry out the
activity under the grant agreement. Prohibited administrative costs also are all indirect
costs under OMB Circulars A-21, A-87, and A-122, and Subpart 31.2 of the Federal
Acquisition Regulation.
B. Statutory Exclusions. The Brownfields Law provides that the administrative cost
prohibition does not apply to:
1. Investigation and identification of the extent of contamination;
2. Design and performance of a response action; or
3. Monitoring of a natural resource.
Appendix 5. Prohibition on Use of Funds Page 45
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Using these statutory exclusions as a guide, EPA has developed the following guidelines on
eligible "programmatic" costs.
C. Eligible Programmatic Costs. Eligible programmatic costs are expenses incurred for
activities that are integral to achieving the purpose of the grant, even it EPA considered
the costs to be "administrative" under the prior brownfields program. For example,
programmatic costs are eligible under a revolving loan fund grant if incurred in making
loans (such as the costs of loan processing, legal fees, and professional services) or
overseeing the borrower's activities to ensure compliance with relevant and appropriate
requirements of the National Contingency Plan (see 40 CFR §300.700 et seq.). These
costs are programmatic, not administrative. Direct costs, as defined in the applicable
OMB Cost Principle Circular, are eligible for the following programmatic activities and,
therefore, are not subject to the administrative cost prohibition:
1. In the case of grants for site characterization and assessment, expenses for
inventorying, characterizing, assessing, and conducting planning related to
brownfield sites.
2. In the case of grants for capitalization of revolving loan funds:
(a) expenses for making and managing loans,
(b) expenses, including financial management expenses, for operating the
revolving fund, and
(c) expenses for making and managing subgrants under CERCLA
3. In the case of grants for direct use by eligible entities and nonprofit organizations
in remediation of brownfield sites under CERCLA §104(k)(3)(A)(ii), expenses
for site remediation activities.
4. In the case of grants for implementation of brownfields programs under CERCLA
§104(k)(6), expenses for providing training, research, and technical assistance.
5. Costs incurred for complying with procurement provisions of 40 CFR Part 30 and
31 are considered eligible programmatic costs only if the procurement contract is
for services or products that are direct costs for performing activities specified
above in Section B, "Statutory Exclusions," or Section C, "Programmatic Costs."
6. Costs for performance and financial reporting required under 40 CFR 30.51 and
30.52, and 40 CFR 31.40 and 31.41 are eligible programmatic costs. Performance
and financial reporting are essential programmatic tools for both the recipient and
EPA to ensure that grants are carried out in accordance with statutory and
regulatory requirements.
Eligible programmatic costs can include expenses for travel, training, equipment, supplies,
reference materials, and contractual support if those costs are reasonable and allocable to tasks
specified in a grantee's approved scope of work for carrying out the activities described in
Section B, "Statutory Exclusions," or Section C, "Programmatic Costs."
Appendix 5. Prohibition on Use of Funds Page 46
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Eligible programmatic costs may be used to help meet the RLF capitalization grant and direct
cleanup grant recipients' 20 percent cost share. Prohibited administrative costs may not be used
to meet recipients' cost share.
For further information on these prohibitions, contact your Regional Brownfields Contact listed
on page 14.
Appendix 5. Prohibition on Use of Funds Page 47
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