&EBV
L'nitcd States Office of Brownfields KPA-560-Z-10-001
Environmental Protection and Land Revitalization November 2010
Agency <5I50T)
Funding Guidance for State and Tribal Response Programs
Fiscal Year 2011
Section 128(a) of the Comprehensive Environmental Response. Compensation, and Liability Act
(CERCLA). as amended, authorizes a noncompetitive $50 million grant program to establish and
enhance state1 and tribal" response programs. Generally, these response programs address the
assessment, cleanup, and redevelopment of brownfields sites and other sites with actual or
perceived contamination. Section 128(a) cooperative agreements are awarded and administered
by the U.S. Environmental Protection Agency (EPA) regional offices. This document provides
guidance that will enable states and tribes to apply for and use Fiscal Year 2011 section 128(a)
funds3.
Requests for funding will be accepted from December 1, 2010 through January 31. 2011.
Requests received after January 31, 2011 will not be considered for FY2011 funding.
Information required to be submitted with the funding request is listed in Section VIII of this
guidance. States or tribes that do not submit the request in the appropriate manner may forfeit
their ability to request funds. First time requestors are strongly encouraged to contact their
Regional EPA Brownfields contacts, listed on the last page of this guidance, prior to submitting
their funding request.
Requests submitted by the January 31. 20II request deadline are preliminary; final cooperative
agreement work plans and budgets will be negotiated with the regional offices once final
allocation determinations are made. As in prior years, EPA will place special emphasis on
reviewing a cooperative agreement recipient's use of prior section 128(a) funding in making
allocation decisions.
States and tribes requesting funds are required to provide a Dun and Bradstreet Data Universal
Numbering System (DUNS) number with their cooperative agreement's final package. For more
information, please go to ^wu.grajits^qu
The Catalogue of Federal Domestic Assistance entry for the section 128(a) State and Tribal
Response Program cooperative agreements is 66.817. This grant program is eligible to be
included in state and tribal Performance Partnership Grants, with the exception of funds used to
capitalize a revolving loan fund for brownfield remediation under section 104(k)(3); or purchase
insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide
financing for response actions under a State or Tribal response program.
The term "state" is defined in this document as defined in CERCLA section 101(27)
"The term "Indian tribe" is defined in this document as it is defined in CERCLA section 101(36). Intertribal
consortia, as defined in the Federal Register Notice at 67 FR 6? 181, Nov. 4,2002, are also eligible for funding under
CERCLA section 128(a).
* The Agency may waive any provision of this guidance that is not required by statute, regulation. Executive Order
or overriding Agency policies.
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Tabie of Contents
1. BACKGROUND 3
II. ELIGIBILITY FOR FUNDING , 3
III. MATCHING FUNDS/COST-SHARE 3
IV. THE FOUR ELEMENTS - SECTION 128(a) 4
V. PUBLIC RECORD REQUIREMENT 5
A. Distinguishing the "survey and inventory" element from the "public record" 5
B, Making the public record easily accessible 6
C. Long-term maintenance of the public record 6
VI. USE OF FUNDING ...7
A. Overview , , 7
B. Uses related to "establishing" a state or tribal response program 8
C Uses related to "enhancing" a state or tribal response program ,,.8
D. Uses related to site-specific activities , &
E. Uses related to site-specific assessment and cleanup activities 9
F. Costs incurred for activities at "*non-brownfields" sites , ,.,.,10
G. Uses related to site-specific activities at petroleum brownfields sites .10
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT FUNDING REQUESTS 10
A One application per state or tribe 10
fl. Define the state or tribal response program , 10
C. Separate cooperative agreements for the capitalization of RLFs using Section 128(a) funds 11
D. Authority to manage a revolving loan fund program 11
E. Section 128(a) cooperative agreements can be part of a Performance Partnership Grant (PPG) 11
F. Project period 11
G. Demonstrating the four elements 11
H. Establishing and maintaining the public record 12
/. Demonstration of significant utilization of prior years'funding 12
J. Explanation of proposed activity/task that would require an increase from the FY10 funding amount 13
K. Allocation system and process for distribution of funds 13
VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST 14
A Demonstration of significant utilization of prior years'funding 14
B. Summary of planned use of FY11 funding 14
C. Explanation of proposed activity/task that would require an increase from the FY10 funding amount 17
D, Reporting of Program Activity Levels 19
IX. TERMS AND REPORTING , 19
A Progress reports , 19
B. Reporting of program activity levels .,,, 22
C. Reporting of public record , 23
D, Award administration information 23
REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS 25
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I. BACKGROUND
State and tribal response programs oversee assessment and cleanup activities at the majority of
brownfields sites across the country. The depth and breadth of state and tribal response programs
vary. Some focus on CERCLA related activities, while others are multi-faceted, for example,
addressing sites regulated by both CERCLA and the Resource Conservation and Recovery Act
(RCRA). Many state programs also offer accompanying financial incentive programs to spur
cleanup and redevelopment. In passing section 128(a)4 Congress recognized the
accomplishments of state and tribal response programs in cleaning up and redeveloping
brownfields sites. Section 128(a) also provides EPA with an opportunity to strengthen its
partnership with states and tribes.
The primary goal of this funding is to ensure that state and tribal response programs include, or
are taking reasonable steps to include, certain elements and establish a public record. The
secondary goal is to provide funding for other activities that increase the number of response
actions conducted or overseen by a state or tribal response program. This funding is not intended
to supplant current state or tribal funding for their response programs. Instead, it is to supplement
their funding to increase their response program's capacity.
Subject to the availability of funds, EPA regional personnel will be available to provide technical
assistance to states and tribes as they apply for and carry out section 128(a) cooperative
agreements.
11. ELIGIBILITY FOR FUNDING
To be eligible for funding under CERCLA section 128(a), a state or tribe must:
1. demonstrate that its response program includes, or is taking reasonable
steps to include, the four elements of a response program, described in
Section IV of this guidance; or be a party to voluntary response program
Memorandum of Agreement (VRP MO A)5 with EPA;
AND
2. maintain and make available to the public a record of sites at which
response actions have been completed in the previous year and are
planned to be addressed in the upcoming year, see CERCLA section
I28(bXlKC).
111. MATCHING FUNDS/COST-SHARE
States and tribes are not required to provide matching funds for cooperative agreements awarded
""Section 128(a) was added to CERCLA in 2002 by the Small Business Liability Relief and Brownfields
Revitalization Act (Brownfield Amendments).
5The legislative history of the Brownfields Amendments indicates that Congress intended to encourage states and
tribes to enter into MOAs for their voluntary response programs. States or tribes that are parties to VRP MOAs and
that maintain and make available a public record are automatically eligible for section 128(a) funding.
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under section 128(a), with the exception of the section 128(a) funds a state or tribe uses to
capitalize a Brownfields Revolving Loan Fund under CERCLA section 104(k)(3).
IV. THE FOUR ELEMENTS - SECTION 128(a)
Section 128(a) recipients that do not have a VRP MOA with EPA must demonstrate that their
response program includes, or is taking reasonable steps to include, the four elements.
Achievement of the four elements should be viewed as a priority. Section 128(a) authorizes
funding for activities necessary to establish and enhance the four elements and to establish and
maintain the public record requirement.
Generally, the four elements are:
1 • Timely survey and inventory of brownfields sites in state or tribal land. EPA's goal in
funding activities under this element is to enable the state or tribe to establish or enhance
a system or process that will provide a reasonable estimate of the number, likely
locations, and the general characteristics of brownfields sites in their state or tribal lands.
EPA recognizes the varied scope of state and tribal response programs and will not
require states and tribes to develop a "list" of brownfields sites. However, at a minimum,
the state or tribe should develop and/or maintain a system or process that can provide a
reasonable estimate of the number, likely location, and general characteristics of
brownfields sites within their state or tribal lands.
Given funding limitations, EPA will negotiate work plans with states and tribes to
achieve this goal efficiently and effectively, and within a realistic time frame. For
example, many of EPA's Brownfields Assessment cooperative agreement recipients
conduct inventories of brownfields sites in their communities or jurisdictions. EPA
encourages states and tribes to work with these cooperative agreement recipients to
obtain the information that they have gathered and include it in their survey and
inventory.
2. Oversight and enforcement authorities or other mechanisms and resources, EPA's goal
in funding activities under this element is to have state and tribal response programs that
include oversight and enforcement authorities or other mechanisms, and resources that
are adequate to ensure that:
a. a response action will protect human health and the environment and be
conducted in accordance with applicable laws; and
b. the necessary response activities are completed if the person conducting the
response activities fails to complete the necessary response activities (this
includes operation and maintenance or long-term monitoring activities).
3. Mechanisms and resources to provide meaningful opportunities for public participation.
EPA's goal in funding activities under this element is to have states and tribes include in
their response program mechanisms and resources for meaningful public participation, at
the local level, including, at a minimum:
'States and tribes establishing this element may find useful information on public participation on EPA's community
involvement web site at Imp: w • , _ • > v " i unii\ policies.htm
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a. Public access to documents and related materials that a state, tribe, or
party conducting the cleanup is relying on or developing in making
cleanup decisions or conducting site activities;
b. Prior notice and opportunity for meaningful public comment on cleanup
plans and site activity; and
c, A mechanism by which a person who is, or may be, affected by a release
or threatened release of a hazardous substance, pollutant, or contaminant
at a brownfields site — located in the community in which the person
works or resides — may request that a site assessment be conducted. The
appropriate state or tribal official must consider this request and
appropriately respond.
4. Mechanisms for approval of a cleanup plan and verification and certification that
cleanup is complete. EPA's goal in funding activities under this element is to have states
and tribes include in their response program mechanisms to approve cleanup plans and to
verify that response actions are complete, including a requirement for certification or
similar documentation from the state, the tribe, or a licensed site professional that the
response action is complete. Written approval by a state or tribal response program
official of a proposed cleanup plan is an example of an approval mechanism.
V. PUBLIC RECORD REQUIREMENT
In order to be eligible for section 128(a) funding, states and tribes (including those with MOAs)
must establish and maintain a public record system, described below, in order to receive funds.
Specifically, under section 128(b)(I)(C). states and tribes must:
1. Maintain and update, at least annually or more often as appropriate, a record of sites that
includes the name and location of sites at which response actions have been completed
during the previous year;
2. Maintain and update, at least annually or more often as appropriate, a record of sites that
includes the name and location of sites at which response actions are planned to be
addressed in the next year; and
3. Identify in the public record whether or not the site, upon completion of the response
action, will be suitable for unrestricted use. If not, the public record must identify the
institutional controls relied on in the remedy.
Section 128(a) funds may be used to maintain and make available a public record system that
meets the requirements discussed above.
A. Distinguishing the "survey and inventory" elem.eni.from the "public
record"
It is important to note that the public record requirement differs from the "timely survey
and inventory" element described in the "Four Elements" section above. The public
record addresses sites at which response actions have been completed in the previous
year and are planned to be addressed in the upcoming year. In contrast, the "timely
survey and inventory" element, described above, refers to a general approach to
identifying brownfields sites.
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B. Making the public record easily accessible
EPA's goal is to enable states and tribes to make the public record and other information,
such as information from the "survey and inventory"" element, easily accessible. For this
reason, EPA will allow states and tribes to use section 128(a) funding to make the public
record, as well as other information, such as information from the "survey and inventory"
element, available to the public via the internet or other means. For example, the Agency
would support funding state and tribal efforts to include detailed location information in
the public record such as the street address and latitude and longitude information for
each site.7
In an effort to reduce cooperative agreement reporting requirements and increase public
access to the public record. EPA encourages states and tribes to place their public record
on the internet. If a state or tribe places the public record on the internet, maintains the
substantive requirements of the public record, and provides EPA with the link to that site,
EPA will, for purposes of cooperative agreement funding only, deem the public record
reporting requirement met.
C. Long-term maintenance of the public record
EPA encourages states and tribes to maintain public record information, including data
on institutional controls, on a long term basis (more than one year) for sites at which a
response action has been completed. Subject to EPA regional office approval, states or
tribes may include development and operation of systems that ensure long term
maintenance of the public record, including information on institutional controls, in their
work plans.8
For further information on latitude and longitude information, please see EPA's data standards web site available at
States and tribes may find useful information on institutional controls on HPA's institutional controls web site at
hi!P: u u' _ ' i' < .
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VI. USE OF FUNDING
A, Overview
Section 128(a)(l )(B) describes the eiigibtc uses of cooperative agreement funds by states
and tribes. In general, a state or tribe may use a cooperative agreement to "establish or
enhance" their response programs, including elements of the response program that
include activities related to responses at brownfields sites with petroleum contamination,
Eligible activities include, but are not limited to, the following:
• Develop legislation, regulations, procedures, ordinances, guidance, etc. that would
establish or enhance the administrative and legal structure of their response
programs;
• Establish and maintain the required public record described in Section V of this
guidance;
• EPA considers activities related to maintaining and monitoring institutional
controls to be eligible costs under section 128(a);
• Conduct limited site-specific activities, such as assessment or cleanup, provided
such activities establish and/or enhance the response program and are tied to the
four elements. In addition to the requirement per CERCLA section
128(a)(2)(C)(ii) to obtain public comment on cleanup plans and site activities,
EPA strongly encourages states and tribes to seek public input regarding the
priority of sites to be addressed and solicit input from local communities,
especially potential environmental justice communities, communities with a
health risk related to exposure to hazardous waste or other public health concerns,
economically disadvantaged or remote areas, and communities with limited
experience working with government agencies. EPA will not provide section
128(a) funds solely for assessment or cleanup of specific brownfields sites; site
specific activities must be an incidental part of an overall section 128(a) work
plan that includes funding for other activities that establish or enhance the four
elements;
• Capitalize a revolving loan fund (RLF) for brownfields cleanup under CERCLA
section 104(k){3). These RLFs are subject to the same statutory requirements and
cooperative agreement terms and conditions applicable to RLFs awarded under
section 104(k)(3). Requirements include a 20 percent match on the amount of
section 128(a) funds used for the RLF, a prohibition on using EPA cooperative
agreement funds for administrative costs relating to the RLF, and a prohibition on
using RLF loans or subgrants for response costs at a site for which the recipient
may be potentially liable under section 107 of CERCLA. Other prohibitions
contained in CERCLA section 104(k)(4) also apply: or
• Purchase environmental insurance or develop a risk-sharing pool, indemnity pool,
or insurance mechanism to provide financing for response actions under a state or
tribal response program.
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B. Uses related to "establishing" a state or tribal response program
Under CERCLA section 128(a). "establish" includes activities necessary to build the
foundation for the four elements of a state or tribal response program and the public
record requirement. For example, a state or tribal response program may use section
128(a) funds to develop regulations, ordinances, procedures, and/or guidance. For more
developed state or tribal response programs, "establish" may also include activities that
keep their program at a level that meets the four elements and maintains a public record
required as a condition of funding under CERCLA section 128(b)(l )(C).
C. Uses related to "enhancing" a state or tribal response program
Under CERCLA section 128(a), "enhance" is related to activities that add to or improve a
state or tribal response program or increase the number of sites at which response actions
are conducted under a state or tribal response program.
The exact "enhancement" uses that may be allowable depend upon the work plan
negotiated between the EPA regional office and the state or tribe. For example, regional
offices and states or tribes may agree that section 128(a) funds may be used for outreach
and training directly related to increasing awareness of its response program, and
improving the skills of program staff. It may also include developing better coordination
and understanding of other state response programs, e.g., RCRA or Underground Storage
Tanks (USTs). As another example, states and tribal response programs enhancement
activities can include outreach to local communities to increase their awareness and
knowledge regarding the importance of monitoring engineering and institutional controls.
Other "enhancement" uses may be allowable as well.
D. Uses related to site-specific activities
States and tribes may use section 128(a) funds for activities that improve state or tribal
capacity to increase the number of sites at which response actions are conducted under
the state or tribal response program. The amount requested for site-specific assessments
and cleanups may not exceed 50% of the total amount of funding requested.
Other eligible uses of funds for site-specific related activities (i.e., site specific but do not
involve conducting actual site assessments or cleanups) include, but are not limited to,
the following. EPA does not cap the amount of funding applicants may request for these
activities.
• oversight of response action;
» technical assistance to federal brownfields cooperative agreement recipients;
• development and/or review of quality assurance project plans (QAPPs):
• preparation and submission of Property Profile Forms; and
* auditing site cleanups to verify the completion of the cleanup.
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E. Uses related to site-specific assessment and cleanup activities
Site-specific assessment and cleanup activities should establish and/or enhance the
response program and be tied to the four elements. In addition to the requirement per
CERCLA section 128(a)(2)(C)(ii) to obtain public comment on cleanup plans and site
activities, EPA strongly encourages states and tribes to seek public input regarding the
priority of sites to be addressed and solicit input from local communities, especially
potential environmental justice communities, communities with a health risk related to
exposure to hazardous waste or other public health concerns, economically disadvantaged
or remote areas, and communities with limited experience working with government
agencies. EPA will not provide section 128(a) funds solely for assessment or cleanup of
specific brownfields sites; site-specific activities must be an incidental part of an overall
section 128(a) work plan that includes funding for other activities that establish or
enhance the four elements. Site-specific assessments and cleanups must comply with all
applicable laws and are subject to the following restrictions:
a. Section 128(a) funds can only be used for assessments or cleanups at sites
that meet the definition of a brownfields site at CERCLA section 101(39).
b. Absent E^PA approval, no more than $200,000 per site can be funded for
assessments with section 128(a) funds, and no more than $200,000 per site
can be funded for cleanups with section 128(a) funds.
c. Absent EPA approval, the state/tribe may not use funds awarded under
this agreement to assess and cleanup sites owned or operated by the
recipient.
d. Assessments and cleanups cannot be conducted at sites where the
state/tribe is a potentially responsible party pursuant to CERCLA section
107. except:
" at brownfields sites contaminated by a controlled substance as defined
in CERCLA section 101(39)(D)(ii)(I); or
" when the recipient would satisfy all of the elements set forth in
CERCLA section 101(40) to qualify as a bona fide prospective
purchaser except that the date of acquisition of the property was on or
before January 11, 2002.
Subgrants cannot be provided to entities that may be potentially responsible parties
(pursuant to CERCLA section 107) at the site for which the assessment or cleanup
activities are proposed to be conducted, except:
1. at brownfields sites contaminated by a controlled substance as defined
in CERCLA section 101(39)(D)(ii)(I); or
2. when the recipient would satisfy all of the elements set forth in
CERCLA section 101(40) to qualify as a bona fide prospective
purchaser except that the date of acquisition of the property was on or
before January 11, 2002.
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F. Costs incurred for activities at "non-brownflelds" sites
Costs incurred for activities at non-brownfields sites, e.g., oversight, may be eligible and
allowable if such activities are included in the state's or tribe's work plan. For example,
auditing completed site cleanups in jurisdictions where states or tribes use licensed site
professionals, to verify that sites have been properly cleaned up, may be an eligible cost
under section 128(a). These costs need not be incurred in connection with a brownfields
site to be eligible, but must be authorized under the state's or tribe's work plan to be
allowable. Other uses may be eligible and allowable as well, depending upon the work
plan negotiated between the EPA regional office and the state or tribe. However,
assessment and cleanup activities may only he conducted on eligible brownfields sites, as
defined in CERCLA section 101(39).
G. Uses related to site-specific activities at petroleum brownfields sites
States and tribes may use section 128(a) funds for activities that establish and enhance
their response programs, even if their response programs address petroleum
contamination. Also, the costs of site-specific activities, such as site assessments or
cleanup at petroleum contaminated brownfields sites, defined at CERCLA section
10l(39)(D)(ii)(II), are eligible and are allowable if the activity is included in the work
plan negotiated between the EPA regional office and the state or tribe. Section 128(a)
funds used to capitalize a Brownfields RLF may be used at brownfields sites
contaminated by petroleum to the extent allowed under CERCLA section 104(k)(3).
Vll. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT
FUNDING REQUESTS
Funding authorized under CERCLA section 128(a) is awarded through a cooperative agreement
with a state or tribe. The program is administered under the general EPA grant and cooperative
agreement regulations for states, tribes, and local governments found in the Code of Federal
Regulations at 40 CFR part 31. Under these regulations, the cooperative agreement recipient for
section 128(a) grant program is the government to which a cooperative agreement is awarded
and which is accountable for the use of the funds provided. The cooperative agreement recipient
is the entire legal entity even if only a particular component of the entity is designated in the
cooperative agreement award document.
A. One application per state or tribe
Subject to the availability of funds, EPA regional offices will negotiate and enter into
section 128(a) cooperative agreements with eligible and interested states or tribes. EPA
will accept only one application from each eligible state or tribe.
B. Define the state or tribal response program
States and tribes must define in their work plan the "section 128(a) response program(s)"
"'A cooperative agreement is an assistance agreement to a state or a tribe that includes substantial involvement of
EPA regional enforcement and program staff during performance of activities described in the cooperative
agreement work plan. Examples of this involvement include technical assistance and collaboration on program
development and site-specific activities.
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to which the funds will be applied, and may designate a component of the state or tribe
that will be EPA's primary' point of contact for negotiations on their proposed work plan.
When EPA funds the section 128(a) cooperative agreement, states and tribes may
distribute these funds among the appropriate state and tribal agencies that are part of the
section 128(a) response program. This distribution must be clearly outlined in their
annual work plan.
C. Separate cooperative agreements for the capitalization ofRLFs using
Section 128(a) funds
If a portion of the section 128(a) grant funds requested will be used to capitalize a
revolving loan fund for cleanup, pursuant to section 104(k)(3), two separate cooperative
agreements must be awarded, i.e., one for the RLF and one for non-RLF uses. States and
tribes may. however, submit one initial request for funding, delineating the RLF as a
proposed use. Section 128(a) funds used to capitalize an RLF are not eligible for
inclusion into a Performance Partnership Grant (PPG).
D. Authority to manage a revolving loan fund program
If a state or tribe chooses to use its section 128(a) funds to capitalize a revolving loan
fund program, the state or tribe must have the authority to manage the program, e.g.,
issue loans. If the agency/department listed as the point of contact for the section 128(a)
cooperative agreement does not have this authority, it must be able to demonstrate that
another state or tribal agency does have the authority to manage the RLF and is willing to
do so.
£ Section 128(a) cooperative agreements can be part of a Performance
Partnership Grant (PPG)
States and tribes may include section 128(a) cooperative agreements in their PPG 69 Fed.
Reg. 51,756 (2004). Section 128(a) funds used to capitalize an RLF or purchase
insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to
provide financing for response actions under a state or tribal response program are not
eligible for inclusion in the PPG.
F. Project period
EPA regional offices will determine the project period for each cooperative agreement.
these may be for multiple years depending on the regional office's cooperative
agreement policies. Each cooperative agreement must have an annual budget period tied
to an annual work plan.
G, Demonstrating the four elements
As part of the annual work plan negotiation process, states or tribes that do not have VRP
MOAs must demonstrate that their program includes, or is taking reasonable steps to
include, the four elements described in Section IV. EPA will not fund, in future years,
state or tribal response program annual work plans if EPA determines that these
requirements are not met or reasonable progress is not being made. EPA may base this
determination on the information the state or tribe provides to support its work plan, or on
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EPA's review of the state or tribal response program.
H, Establishing and maintaining the public record
Prior to funding a slate's or tribe's annual work plan. EPA regional offices will verify and
document that a public record, as described in Section V and below, exists and is being
maintained.10 Specifically:
* States or tribes that received initial funding prior to FY10: Requests for FY11
funds will not be accepted from states or tribes that fail to demonstrate, by the
January 31, 2011 request deadline, that they established and are maintaining a
public record. (Note, this would potentially impact any state or tribe that had a
term and condition placed on their FYK) cooperative agreement that prohibited
drawdown of FY10 funds prior to meeting public record requirement). States or
tribes in this situation will not be prevented from drawing down their prior year
funds, once the public record requirement is met, but will be restricted from
applying for FY11 funding.
• States or Tribes that received initial funding in FY10: By the time of the actual
FY'l 1 award, the state or tribe must demonstrate that they established and
maintained the public record (those states and tribes that do not meet this
requirement will have a term and condition placed on their FY11 cooperative
agreement that prevents the drawdown of FY11 funds until the public record
requirement is met).
• Recipients receiving funds for the first time in FY11: These recipients have one
year to meet this requirement and may utilize the section 128(a) cooperative
agreement funds to do so.
/. Demonstration of significant utilization of prior years'funding
During the allocation process, EPA headquarters places significant emphasis on the
utilization of prior years' funding. Unused funds from prior years will be considered in
the allocation process. Existing balances in EPA's Financial Data Warehouse could
support an allocation amount below a grantee's request for funding. If a grantee wishes to
avoid an allocation reduction, when submitting a request for FYl 1 funds, include a
detailed explanation and justification of funds that remain in EPA's Financial Data
Warehouse from prior years (that are related to response program activities or brownfield
related activities).
EPA Regional staff will review EPA's Financial Database Warehouse to identify the
amount of remaining prior year(s) funds. The cooperative agreement recipient should
work, as early as possible, with both their own finance department, and with their
Regional Project Officer to reconcile any discrepancy between the amount of unspent
funds showing in EPA's system, and the amount reflected in the recipient's records. The
recipient should obtain concurrence from the Region on the amount of unspent funds
10 For purposes of cooperative agreement funding, the state's or tribe's public record applies to that state's or
tribe's response program(s) that utilized the section 128(a) funding.
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requiring justification by the deadline for this request for funding.
/. Explanation of proposed activity/task that would require an increase
from the FYW funding amount
Due to the limited amount of funding available, recipients must demonstrate the
environmental benefits of undertaking the proposed activity/task and how that
activity/task supports the four elements of a response program in addition to highlighting
any activities in local communities, especially potential environmental justice
communities, communities with a health risk related to exposure to hazardous waste or
other public health concerns, economically disadvantaged or remote areas, and
communities with limited experience working with government agencies. Refer to
Section VIII for information to be submitted with funding request.
K, Allocation system and process for distribution of funds
EPA regional offices will work with interested states and tribes to develop their
preliminary work plans and funding requests. Final cooperative agreement work plans
and budgets will be negotiated with the regional office once final allocation
determinations are made. Please refer to process flow chart below:
Grantee
coordinates with
EPA Regional
Brown fields
Office to develop
funding requests
Regional
Brown fields
Offices inform
grantee of
funding
amount
1=3
Grantee works
with Regional
Brownficlds
Office to final i/e
workplans.
budgets, in order
lo complete und
submit the grant
application
For Fiscal Year 2011, EPA will consider funding requests up to a maximum of $1.3
million per state or tribe. This limit may be changed in future years based on
appropriation amounts and demand for funding. Please note the CERCLA 128(a) annual
program's budget has remained static while demand for funding continues to increase
every year". Therefore, in most instances the FY11 state and tribal individual funding
amounts will not meet the FY10 funding amounts. Requests for increases over the FY10
funding amount will be considered only after allocations are made to cover basic core
support to programs of all eligible requestors.
After the January 31. 2011 request deadline, regional offices will submit summaries of
state and tribal requests to EPA headquarters. Before submitting requests to EPA
headquarters, regional offices may take into account additional factors when determining
recommended allocation amounts. Such factors include, but are not limited to, the depth
and breadth of the state or tribal program; scope of the perceived need for the funding,
e.g.. size of state or tribal jurisdiction or the proposed work plan balanced against
capacity of the program, amount of prior funding, funds remaining from prior years, etc.
FY10 EPA received $67.1 Million in requests for funding from States and Tribes under CERCLA I28(a), The
FY10 enacted budget was $49.5 Million. The resulting budget shortfall was approximately $17 Million.
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After receipt of the regional recommendations, EPA headquarters will consolidate
requests and allocate funds accordingly.
VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST
A. Demonstration of significant utilization of prior years'funding
States and tribes requesting section 128(a) FY11 funds must submit the following
information, as applicable, to their regional brownfield contact on or before January 31,
2011 (regions may request additional information, as needed):
1. For those states and tribes with prior Targeted Brownfields Assessment
funding awarded under CERCLA section 104(d), provide, by agreement
number, the amount of funds that have not been requested for
reimbursement (i.e., those funds that remain in EPA's Financial Data
Warehouse). EPA will take into account these funds in the allocation
process. A cooperative agreement recipient can choose to provide a
justification to EPA that explains why the underused funds should not be
considered in the current request for funding.
2. For those states and tribes that received FY08 or prior section 128(a)
funds, you must provide the amount of FY03, FY04, FYQS, FY06, FY07
and/or FY08 funds that have not been requested for reimbursement (i.e.,
those funds that remain in EPA's Financial Data Warehouse). EPA will
take into account these funds in the allocation process.
B, Summary of planned use of FYllfunding
All states and tribes requesting FY11 funds must submit a summary of the planned use of
the funds with associated dollar amounts. Please provide the request in the following
format below:
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Funding Use
Establish or enhance
the four elements:
1 . Timely survey
and inventory of
brownfields sites;
2. Oversight and
enforcement
authorities or
other
mechanisms;
3. Mechanisms and
resources to
provide
meaningful
opportunities for
public
participation;
4. Mechanisms or
approval of a
cleanup plan and
verification and
certification that
cleanup is
complete.
Establish and maintain
the public record
FY10
Awarded
sxxxxx
FY11
Requested
SXX.XXX
$XX,XXX SXX.XXX
Summary of Intended Use (EXAMPLE
USES)
1 . Examples:
• inventory and prioritize
brownfields sites
2. Examples:
• develop/enhance ordinances,
regulations, procedures for
response programs
3. Examples:
• develop a community
involvement process
• fund an outreach coordinator
• issue public notices of site
activities
* develop a process to seek public
input from local communities.
especially potential
environmental justice
communities, communities with
a health risk related to exposure
to hazardous waste or other
public health concerns.
economically disadvantaged or
remote areas, and communities
with limited experience working
with government agencies to
prioritize sites to be addressed
4. Examples:
• review cleanup plans and verify
completed actions
• maintain public record
• create web site for public record
• disseminate public information
on how to access the public
record
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Funding Use
Enhance the response
program
Site-specific activities
(amount requested
should be incidental to
the workplan, e.g., less
than half of the total
funding requested see
Section VI. D for more
information on what
activities should he
considered when
calculating site specific
activities)
Environmental
insurance
FY10
Awarded
$xx,xxx
$xx,xxx
$xx,xxx
FY11
Requested
$xx,xxx
SXX.XXX
$xx,xxx
Summary of Intended Use (EXAMPLE
USES)
« provide oversight of site
assessments and cleanups
• attend training and conferences
on brownfields cleanup
technologies & other
brownfields topics
• update and enhance program
management activities
• negotiate/oversee contracts for
response programs
« enhance program management
& tracking systems
• prepare Property Profile
Forms/input data into ACRES
database
• perform site assessments and
cleanups
* develop QAPPs
» prepare Property Profile
Forms/input data into ACRES
database for these sites
• review potential uses of
environmental insurance
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Funding Use
Revolving loan fund
Total funding
FY10
Awarded
SXX.XXX
$xxx,xxx
FY11
Requested
sxx.xxx
$xxx,xxx
Summary of Intended Use (EXAMPLE
USES)
• create a cleanup revolving loan
fund
Performance Partnership Grant? Yes D No D
C. Explanation of proposed activity/task that would require an increase
from the FY10 funding amount
For those states and tribes requesting amounts above their FY10 allocation, a separate
explanation must be provided using the format below or the explanation can be made in a
narrative form. The request should clearly demonstrate the environmental benefits of the
proposed activity/task and how it directly supports the establishment and enhancement of
the four elements of a response program. Requests for increases over the FY10 funding
amount will be considered only after allocations are made to cover basic core support to
programs of all eligible requestors. Please note the CERCLA 128(a) annual program's
budget has remained static while demand for funding continues to increase every year12.
Therefore, in most instances the FY11 state and tribal individual funding amounts will
not meet the FY10 funding amounts. Increases in funding are unlikely.
Explanation of
Request(s) for Funding
ABOVE FY10 Award
Amount
13
One Time
Request or
Recurring?
Explanation/Anticipated Outcome
Establish or Enhance the
four elements:
1. Timely survey and
inventory of brownfields
sites; 2. Oversight and
enforcement authorities or
other mechanisms: 3.
Mechanisms and resources
to provide meaningful
opportunities for public
$xx,xx
One Time D
RecurringD
Explanation of environmental
benefits:
EPA recejved 557 j Million in requests for funding from States and Tribes under CERCLA 128(a). The
FY10 enacted budget was $49.5 Million. The resulting budget shortfall was approximately $17 Million.
" A one time request is not likely to repeat whereas a recurring charge is likely to periodically occur again.
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Explanation of
Request(s) for Funding
ABOVE FY10 Award
participation; and/or 4.
Mechanisms or approval
of a cleanup plan and
verification and
certification that cleanup
is complete.
Establish and Maintain
the Public Record
Enhance the Response
Program
Site-specific Activities
(amount requested should
be incidental to the
workplan, e.g., less than
half of the total funding
requested)
Environmental
Insurance
Amount
$xx,xx
SXXJQC
$xx,xxx
SXX.XXX
One Time13
Request or
Recurring?
One Time D
RecurringD
One Time D
RecurringD
One Time D
RecurringD
One Time D
RecurringD
Explanation/ Anticipated Outcome
Anticipated Outcome:
Explanation of environmental
benefits:
Anticipated Outcome:
Explanation of environmental
benefits:
Anticipated Outcome:
Explanation of environmental
benefits:
Anticipated Outcome:
Explanation of environmental
benefits:
Anticipated Outcome:
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Explanation of
Request(s) for Funding
ABOVE FY10 Award
Revolving Loan Fund
Total Increase Requested
Amount
$xx,xxx
$xx,xxx
One Time13
Request or
Recurring?
One Time D
RecurringD
Explanation/Anticipated Outcome
Explanation of environmental
benefits:
Anticipated Outcome:
D. Reporting of Program Activity Levels
States and tribes must report, by January 31, 2011, a summary of \he previous federal
fiscal year's work (October 1, 2009 through September 30, 2010), The following
information must be submitted to your regional project officer (if no activity occurred in
the particular category, indicate a "N/A"):
• Number of properties enrolled in the response program supported by the
CERCLA section 128{a) funding,
» Number of properties that received a "No Further Action" (NFA) documentation
or a Certificate of Completion (COC) or equivalent. AND have all required
institutional controls in place.
• Number of properties that received an NFA or COC or equivalent and do NOT
have all required institutional controls in place.
• Total number of acres associated with properties in the second bullet above.
• (OPTIONAL) Number of properties where assistance was provided, but the
property was NOT enrolled in the response program.
IX. TERMS AND REPORTING
Cooperative agreements for state and tribal response programs will include programmatic and
administrative terms and conditions. These terms and conditions will describe EPA's substantial
involvement including technical assistance and collaboration on program development and site-
specific activities. Each of the subsections below summarizes the basic terms and conditions and
related reporting that will be required if a cooperative agreement with EPA is awarded.
A. Progress reports
In accordance with 40 CFR 31.40, state and tribes must provide progress reports as
provided in the terms and conditions of the cooperative agreement negotiated with EPA
regional offices. State and tribal costs for complying with reporting requirements are an
eligible expense under the section 128(a) cooperative agreement. As a minimum, state or
tribal progress reports must include both a narrative discussion and performance data
relating to the slate's or tribe's accomplishments and environmental outputs associated
with the approved budget and workplan and should provide an accounting of section
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128(a) funding. If applicable, the state or tribe must include information on activities
related to establishing or enhancing the four elements of the state's or tribe's response
program. All recipients must provide information relating to establishing or, if already
established, maintaining the public record. Depending upon the activities included in the
state's or tribe's work plan, an EPA regional office may request that a progress report
include:
1. Reporting environmental insurance. Recipients with work plans that
include funding for environmental insurance must report:
* Number and description of insurance policies purchased (e.g., type of
coverage provided: dollar limits of coverage; any buffers or
deductibles; category and identity of insured persons; premium; first
dollar or umbrella; site specific or blanket: occurrence or claims
made, etc.)
• The number of sites covered by the insurance
• The amount of funds spent on environmental insurance (e.g., amount
dedicated to insurance program, or to insurance premiums)
• The amount of claims paid by insurers to policy holders
2. Reporting for site-specific assessment or cleanup activities. Recipients
with work plans that include funding for brownfields site assessment or
cleanup must input information required by the OMB-approved Property
Profile Form into the Assessment Cleanup and Redevelopment Exchange
System (ACRES) database for each site assessment and cleanup. In
addition, recipients must report how they provide the affected community
with prior notice and opportunity for meaningful participation as per
CERCLA Section 128(a)(2)(C)(ii) on proposed cleanup plans and site
activities. For example, EPA strongly encourages states and tribes to seek
public input regarding the priority of sites to be addressed and solicit input
from local communities, especially potential environmental justice
communities, communities with a health risk related to exposure to
hazardous waste or other public health concerns, economically
disadvantaged or remote areas, and communities with limited experience
working with government agencies.
3. Reporting for other site-specific activities. Recipients with work plans that
include funding for other site-specific related activities must include a
description of the site-specific activities and the number of sites at which
the activity was conducted. For example:
• Number and frequency of oversight audits of licensed site
professional certified cleanups
• Number and frequency of state/tribal oversight audits conducted
• Number of sites where staff conducted audits, provided technical
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assistance, or conducted other oversight activities
• Number of staff conducting oversight audits, providing technical
assistance, or conducting other oversight activities
4. Reporting for RLF uses. Recipients with work plans that include funding
for revolving loan fund (RLF) must include the information required by
the terms and conditions for progress reporting under CERCLA section
104(k)(3) RLF cooperative agreements.
5, Reporting for Non-MOA states and tribes. All recipients without a VRP
MOA must report activities related to establishing or enhancing the four
elements of the state's or tribe's response program. For each element
state/tribes must report how they are maintaining the element or how they
are taking reasonable steps to establish or enhance the element as
negotiated in individual state/tribal work plans. For example, pursuant to
CERCLA section 128(a)(2)(B). reports on the oversight and enforcement
authorities/mechanisms element may include:
• a narrative description and copies of applicable documents developed
or under development to enable the response program to conduct
enforcement and oversight at sites. For example:
o legal authorities and mechanisms (e.g., statutes, regulations,
orders, agreements);
o policies and procedures to implement legal authorities; and
other mechanisms;
• a description of the resources and staff allocated/to be allocated to the
response program to conduct oversight and enforcement at sites as a
result of the cooperative agreement;
• a narrative description of how these authorities or other mechanisms,
and resources, are adequate to ensure that:
o a response action will protect human health and the
environment; and be conducted in accordance with applicable
federal and state law; and if the person conducting the response
action fails to complete the necessary response activities,
including operation and maintenance or long-term monitoring
activities, the necessary response activities are completed; and
• a narrative description and copy of appropriate documents
demonstrating the exercise of oversight and enforcement authorities
by the response program at a brownfields site.
The regional offices may also request other information be added to the progress reports.
as appropriate, to properly document activities described by the cooperative agreement
work plan.
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EPA regions may allow states or tribes to provide performance data in appropriate
electronic format.
The regional offices will forward progress reports to EPA Headquarters, if requested.
This information may be used to develop national reports on the outcomes of CERCLA
section 128(a) funding to states and tribes.
B, Reporting of program activity levels
States and tribes must report, by January 31, 2011, a summary of the previous federal
fiscal year's work (October 1. 2009 through September 30, 2010). The following
information must be submitted to your regional project officer (if no activity occurred in
the particular category, indicate a "N/A"):
• Number of properties enrolled in the response program supported by the
CERCLA section 128(a) funding.
• Number of properties that received a "No Further Action" (NFA)
documentation or a Certificate of Completion (COC) or equivalent, AND
have all required institutional controls in place.
• Number of properties that received an NFA or COC or equivalent and do
NOT have all required institutional controls in place.
• Total number of acres associated with properties in the second bullet
above.
• (OPTIONAL) Number of properties where assistance was provided, but
the property was NOT enrolled in the response program.
Where applicable, EPA may require states/tribes to report specific performance measures
related to the four elements which can be aggregated for national reporting to Congress.
For example:
1. Timely Survey & Inventory - Estimated number of brownfields sites in the
state or on tribal land.
2. Oversight & Enforcement Authorities/Mechanisms - Number of active
cleanups and percentage that received oversight; percentage of active
cleanups not In compliance with the cleanup workplan and that received
communications from recipient regarding non-compliance.
3. Public Participation - Percentage of sites in the response program where
public meetings/notices were conducted regarding the cleanup plan and/or
other site activities; number of requests and responses to site assessment
requests.
4. Cleanup Approval/Certification Mechanisms - Total number of "no further
action" letters or total number of certificate of completions.
(NOTE: where applicable, this reporting requirement may include activities not funded
with CERCLA Section I28(a) monies, because this information may be used by
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EPA to evaluate whether recipients without MOAs have met or are taking
reasonable steps to meet the four elements of a response program pursuant to
CERCLA Section 128(a)(2).
C. Reporting of public record
All recipients must report, as specified in the terms and conditions of their cooperative
agreement, information related to establishing or. if already established, maintaining the
public record, described above. States and tribes can refer to an already existing public
record, e.g., website or other public database to meet the public record requirement.
Recipients reporting may only be required to demonstrate that the public record a) exists
and is up-to-date b) is adequate. A public record may include the following information:
A list of sites at which response actions have been completed including:
• Date the response action was completed
• Site name
• Name of owner at time of cleanup, if known
• Location of the site (street address, and latitude and longitude)
* Whether an institutional control is in place
• Explain the type of institutional control in place (e.g.. deed restriction.
zoning restriction, local ordinance, state registries of contaminated
property, deed notices, advisories, etc.)
• Nature of the contamination at the site (e.g., hazardous substances,
contaminants, or pollutants, petroleum contamination, etc.)
• Size of the site in acres
A list of sites planned to be addressed by the state or tribal response program including:
• Site name and the name of owner at time of cleanup, if known
• Location of the site (street address, and latitude and longitude)
• To the extent known, whether an institutional control is in place
• Explain the type of the institutional control in place (e.g., deed restriction,
zoning restriction, local ordinance, state registries of contaminated
property, deed notices, advisories, etc.)
• To the extent known, the nature of the contamination at the site (e.g.,
hazardous substances, contaminants, or pollutants, petroleum
contamination, etc.)
• Size of the site in acres
D. Award administration information
1. Suhaward and executive compensation reporting
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Applicants must ensure that they have the necessary processes and systems in
place to comply with the subaward and executive total compensation reporting
requirements established under OMB guidance at 2 CFR Part I70, unless they
qualify for an exception from the requirements, should they be selected for
funding.
2. Central Contractor Registration (CCR) and Data Universal Numbering System
(DUNS) Requirements
Unless exempt from these requirements under OMB guidance at 2 CFR Part 25
(e.g., individuals), applicants must:
a. Be registered in the CCR prior to submitting an application or proposal
under this announcement. CCR information can be found at
https://www.bpn.gov/ccr/
b. Maintain an active CCR registration with current information at all times
during which it has an active Federal award or an application or proposal
under consideration by an agency, and
c. Provide its DUNS number in each application or proposal it submits to the
agency. Applicants can receive a DUNS number, at no cost, by calling the
dedicated toll-free DUNS Number request line at 1-866-705-5711, or
visiting the D&B wrebsite at: http://www.dnb.com.
If an applicant fails to comply with these requirements, it will, should it be
selected for award, affect their ability to receive the award.
3. Use of funds
An applicant that receives an award under this announcement is expected to
manage assistance agreement funds efficiently and effectively and make sufficient
progress towards completing the project activities described in the work-plan in a
timely manner. The assistance agreement will include terms/conditions
implementing this requirement.
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REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS
REGION
STATE
TRIBAL
CT, ME, MA, NH,
RI.VT
James Byrne
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 02109-3912
Phone (617) 918-1389 Fax (617) 918-1291
AmyJean McKeown
5 Post Office Square, Suite 100 (OSRR07-2)
Boston. MA 02109-3912
Phone (617) 918-1248 Fax (617) 918-1291
NJ, NY, PR, VI
DE, DC, MD, PA,
VA.WV
John Struble
290 Broadway, 18th Floor
New York, NY 10007
Phone (212) 637-4291 Fax (212) 637-4211
Janice Bartel
1650 Arch Street (3HS51)
Philadelphia, Pennsylvania 19103
Phone {215) 814-5394 Fax (215) 814-3274
John Struble
290 Broadway, 18th Floor
New York, NY 10007
Phone (212) 637-4291 Fax (212) 637-4211
AL, FL, GA, KY,
MS, NC, SC, TN
Philip Vorsatz
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8960
Phone (404) 562-8789 Fax (404) 562-8788
Philip Vorsatz
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8960
Phone (404) 562-8789 Fax (404) 562-8788
IL, IN, Ml, MN,
OH, WI
Jan Pels
77 West Jackson Boulevard (SE-7J)
Chicago, Illinois 60604-3507
Phone (312) 886-3009 Fax (312) 692-2161
AR, LA, NM, OK,
TX
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, Texas 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
Jane Neumann
77 West Jackson Boulevard (SE-4J)
Chicago, Illinois 60604-3507
Phone (312) 353-0123 Fax (312) 697-2649
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, Texas 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
IA, KS, MO, HE
Susan Klein
901 N. 5th Street (SUPRSTAR)
Kansas City, Kansas 66101
Phone (913) 551-7786 Fax (913) 551-9786
Susan Klein
901 N. 5th Street (SUPRSTAR)
Kansas City, Kansas 66101
Phone (913) 551-7786 Fax (913) 551-9798
8
CO, MT, ND, SD,
UT.WY
AZ, CA, HI, NV,
AS, GU
10
AK, ID, OR, WA
Dan Herfeman
1595 Wynkoop Street (EPR-B)
Denver, CO 80202-1129
Phone (303) 312-7074 Fax (303) 312-6065
Eugenia Chow
75 Hawthorne St. (SFD-6-1)
San Francisco, California 94105
Phone (415) 972-3160 Fax (415) 947-3520
Barbara Benoy
1595 Wynkoop Street (8EPR-SA)
Denver, CO 80202-1129
Phone (303) 312-6760 Fax (303) 312-6962
Glenn Kistner
75 Hawthorne St (SFD-6-1)
San Francisco, California 94105
Phone (415) 972-3004 Fax (415) 947-3520
Deborah Burgess
300 Desmond Dr., SE, Suite 102 (WOO)
Lacey, Washington 98503
Phone (360) 753-9079 Fax (360) 753-8080
Deborah Burgess
300 Desmond Dr., SE, Suite 102 (WOO)
Lacey, Washington 98503
Phone (360) 753-9079 Fax (360) 753-8080
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