&EPA
United States Office of Brownfields EPA-560-F13-211
Environmental Protection and Land Revitalization December 2013
Agency (51 SOT)
Funding Guidance for State and Tribal Response Programs
Fiscal Year 2014
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 tribal2 response programs. CERCLA 128(a) response program grants are
funded with categorical3 State and Tribal Assistance Grant (STAG) appropriations. Section
128(a) cooperative agreements are awarded and administered by the U.S. Environmental
Protection Agency (EPA) regional offices. Generally, these response programs address the
assessment, cleanup, and redevelopment of brownfields sites and other sites with actual or
perceived contamination. This document provides guidance that will enable states and tribes to
apply for and use Fiscal Year 2014 section 128(a) funds4.
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 under 40 CFR Part 35 Subparts A
and B, 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.
Requests for funding will be accepted from December 9, 2013, through January 31, 2014.
Requests EPA receives after January 31, 2014, will not be considered for FY2014 funding.
Information that must 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 receive 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.
EPA will consider funding requests up to a maximum of $1.0 million per state or tribe for
FY2014.
Requests submitted by the January 31, 2014, request deadline are preliminary; final cooperative
agreement work plans and budgets will be negotiated with the regional offices once final funding
allocation determinations are made. As in previous years, EPA will place special emphasis on
reviewing a cooperative agreement recipient's use of prior section 128(a) funding in making
allocation decisions, and unexpended balances are subject to 40 CFR 35.118 and 40 CFR 35.518
to the extent consistent with this guidance.
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 www.grants.gov.
The term "state" is defined in this document as defined in CERCLA section 101(27)
2The term "Indian tribe" is defined in this document as it is defined in CERCLA section 101(36). Intertribal consortia, as defined
in the Federal Register Notice at 67 FR 67181, Nov. 4,2002, are also eligible for funding under CERCLA section 128(a).
3Categorical grants are issued by the U.S. Congress to fund state and local governments for narrowly defined purposes.
4 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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Table of Contents
I. BACKGROUND 3
II. ELIGIBILITY FOR FUNDING 3
III. MATCHING FUNDS/COST-SHARE 3
IV. THE FOUR ELEMENTS - SECTION 128(a) 3
V. PUBLIC RECORD REQUIREMENT 5
A. Distinguishing the "survey and inventory" element from the "public record" 6
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 8
f. Uses related to activities at "non-brownfields" sites 11
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT FUNDING REQUESTS 11
A. One application per state or tribe 12
B. Maximum funding request 12
C. Define the state or tribal response program 12
D. Separate cooperative agreements for the capitalization ofRLFs using Section 128(a)funds 12
E. Authority to manage a revolving loan fund program 12
F. Section 128(a) cooperative agreements can be part of a Performance Partnership Grant (PPG) 12
G. Project period 13
H. Demonstrating the four elements 13
/. Establishing and maintaining the public record 13
J. Demonstration of significant utilization of prior years'funding 13
K. Allocation system and process for distribution of funds 14
VIM. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST 15
A. Summary of planned use of FY14 funding 15
6. Demonstration of significant utilization of prior years' funding 15
C. Optional: Explanation of overall program impacts of any funding reductions 15
IX. TERMS AND REPORTING 17
A. Progress reports 18
B. Reporting of program activity levels 20
C. Reporting of public record 21
D. Award administration information 22
REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS 24
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I. BACKGROUND
State and tribal response programs oversee assessment and cleanup activities at 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, 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 enacting
CERCLA section 128(a)5 Congress recognized the accomplishments of state and tribal response
programs in cleaning up and redeveloping brownfields sites. Section 128(a) provides EPA with
an opportunity to strengthen its partnership with states and tribes, and recognizes the response
programs' critical role in overseeing cleanups enrolled in their response programs.
This funding is intended for states and tribes that have the management and administrative
capacity within their government required to administer a federal grant. 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 of an environmental response program and that the response
program establishes and maintains a public record of sites addressed.
Subject to the availability of funds, EPA regional personnel will be available to provide technical
assistance to states and tribes as they apply for and carry out section 128(a) cooperative
agreements.
II. ELIGIBILITY FOR FUNDING
To be eligible for funding under CERCLA section 128(a), a state or tribe must:
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 a voluntary response program
Memorandum of Agreement (VRP MO A) 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
III. MATCHING FUNDS/COST-SHARE
States and tribes are not required to provide matching funds for cooperative agreements awarded
under section 128(a), with the exception of section 128(a) funds a state or tribe uses to capitalize
a Brownfields Revolving Loan Fund (RLF) under CERCLA section 104(k)(3). There is a 20%
cost share requirement for 128(a) funds used to capitalize a RLF.
IV. THE FOUR ELEMENTS - SECTION 128(a)
Section 128(a) recipients that do not have a VRP MO A with EPA must demonstrate that their
Section 128(a) was added to CERCLA in 2002 by the Small Business Liability Relief and Brownfields Revitalization Act
(Brownfield Amendments).
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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.
The four elements of a response program are described below:
1. Timely survey and inventory ofbrownfields 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 ofbrownfields 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" ofbrownfields 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. Inventories should evolve to a
prioritization of sites based on community needs, planning priorities, and protection of
human health and the environment. Inventories should be developed in direct
coordination with communities, and particular attention should focus on those
communities with limited capacity to compete for, and manage a competitive brownfield
assessment, revolving loan, or cleanup cooperative agreement.
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 ofbrownfields 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 state or tribe will complete the necessary response activities if the person
conducting the response fails to complete the necessary response (this includes
operation and maintenance and/or long-term monitoring activities).
3. Mechanisms and resources to provide meaningful opportunities for public participation.6
EPA's goal in funding activities under this element is to have states and tribes include in
their response program mechanisms and resources for meaningful public participation, at
the local level, including, at a minimum:
6States and tribes establishing this element may find useful information on public participation on the EPA's community
involvement web site at http://www.epa.gov/superfund/communitv/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 to make cleanup
decisions or conduct site activities:
b.
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prior notice and opportunity for meaningful public comment on cleanup
plans and site activities, including input into the prioritization of sites; 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 MO As)
must establish and maintain a public record system, as described below, in order to receive
funds. The public record should be made available to provide a mechanism for meaningful
public participation (refer to Section IV.3 above). Under section 128(b)(l)(C), states and tribes
must:
1. maintain and update, at least annually, or more often as appropriate, a record 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 that
includes the name and location of sites at which response actions are planned in the next
year;
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 and include relevant information concerning
the entity that will be responsible for oversight, monitoring, and/or maintenance of the
institutional and engineering controls; and how the responsible entity is implementing
those activities (see Section V.C).
Section 128(a) funds may be used to maintain and make available a public record system that
meets the requirements discussed above.
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A. Distinguishing the "survey and inventory" element from the "public
record"
It is important to note that the public record requirement differs from the "timely survey
and inventory" element described in the "Four Elements" section above. The public
record addresses sites at which response actions have been completed in the previous
year or are planned in the upcoming year. In contrast, the "timely survey and inventory"
element, described above, refers to identifying brownfields sites regardless of planned or
completed actions at the site.
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 States and tribes should ensure that all affected communities have appropriate
access to the public record by making it available on-line, in print at libraries, or at other
community gathering places.
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 (such as
ensuring the entity responsible for oversight, monitoring, and/or maintenance of the
institutional and engineering controls is implementing those activities) in their work
plans.8
7For further information on data quality requirements for latitude and longitude information, please see the EPA's data standards
web site available at http://iaspub.epa.gov/sor intemet/registry/datastds/findadatastandard/epaapproved/latitudelongitude
8States and tribes may find useful information on institutional controls on the EPA's institutional controls web site at
http://www.epa.gov/superfund/policv/ic/index.htm
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VI. USE OF FUNDING
A. Overview
Section 128(a)(l)(B) describes the eligible uses of cooperative agreement funds by states
and tribes. In general, a state or tribe may use funding to "establish or enhance" its
response program. Specifically, a state or tribe may use cooperative agreement funds to
build response programs that includes the four elements outlined in section 128(a)(2).
Eligible activities include, but are not limited to, the following:
• developing legislation, regulations, procedures, ordinances, guidance, etc. that
establish or enhance the administrative and legal structure of a response program;
• establishing and maintaining the required public record described in Section V of
this guidance;
• operation, maintenance and long-term monitoring of institutional controls and
engineering controls;
• conducting 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 under CERCLA section 128(a)(2)(C)(ii) to
provide for 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
part of an overall section 128(a) work plan that includes funding for other activities
that establish or enhance the four elements;
• capitalizing 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 (can be in the form of a
contribution of money, labor, material, or services from a non-federal source) 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; and
• purchasing environmental insurance or developing 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, guidance, and a public
record.
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 or tribal programs, e.g., programs that address RCRA or
underground storage tanks (USTs), etc. 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
1. Eligible uses of funds for site-specific activities
Site-specific assessment and cleanup activities should establish and/or
enhance the response program and be tied to the four elements. Site-
specific assessments and cleanups can be both eligible and allowable if the
activity is included in the work plan negotiated between the EPA regional
office and the state or tribe, but activities 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). EPA encourages states
and tribes to use site-specific funding to perform
assessment (e.g. phase II, supplemental assessments and
cleanup planning) and cleanup activities that will lead more
quickly to the reuse and redevelopment of sites, particularly
sites located in distressed, environmental justice, rural or
tribal communities. Furthermore, states and tribes that
perform site-specific activities should plan to directly
engage with and involve the targeted community in the
project. For example, a Community Relations Plan (CRP)
could be developed to provide reasonable notice to the
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public about a planned cleanup, as well as opportunities for
the public to comment on the cleanup. States and tribes
should work towards securing additional funding for site-
specific activities by leveraging resources from other
sources such as businesses, non-profit organizations,
education and training providers, and/or federal, state,
tribal, and local governments.
b. absent EPA approval, no more than $200,000 per site
assessment can be funded with section 128(a) funds, and no
more than $200,000 per site cleanup can be funded with
section 128(a) funds;
c. absent EPA approval, the state/tribe may not use funds
awarded under this agreement to assess and/or clean up
sites owned or operated by the recipient or held in trust by
the United States Government for the recipient; and
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(3 gypyiiyn: 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(3 9)(D)(ii)q): 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.
2. Limitations on the amount of funds used for site-specific activities and
waiver process
States and tribes may use section 128(a) funds for site-specific activities
that improve state or tribal capacity but the amount recipients may request
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for site-specific assessments and cleanups may generally not exceed 50%
of the total amount of funding.9 In order for EPA to consider a waiver, the
total amount of the site-specific request may not exceed the recipient's
total funding level for the prior year. The funding request must include a
brief justification describing the reason(s) for spending more than 50% of
an annual allocation on site-specific activities.
An applicant, when requesting a waiver, must include the following
information in the written justification:
• total amount requested for site-specific activities;
• percentage of the site-specific activities (assuming waiver is approved)
in the total budget;
• site specific activities that will be covered by this funding. If known,
provide site specific information and describe how work on each site
contributes to the development or enhancement of your state/tribal
response program. EPA recognizes the role of response programs to
develop and provide capacity in distressed, environmental justice, rural or
tribal communities, and encourages prioritizing sites for site-specific
activities in those communities. Further explain how the community will
be (or has been) involved in prioritization of site work and especially
those sites where there is a potential or known significant environmental
impact to the community;
• an explanation of how this shift in funding will not negatively impact
the core programmatic capacity (i.e., the ability to establish/enhance four
elements of a response program) and how related activities will be
maintained in spite of an increase in site-specific work. Recipients must
demonstrate that they have adequate funding from other sources to
effectively carry out work on the four elements for EPA to grant a waiver
of the 50% limit on using 128(a) funds for site-specific activities;
• an explanation as to whether the sites to be addressed are those for
which the affected community(ies) has requested work be conducted
(refer to Section VIA Overview of Funding for more information).
EPA Headquarters will base approval of waivers on the information that
is included in the justification along with the request for funding, as well
as other information available to the Agency. The EPA will then inform
recipients of the Agency's final decision(s).
3. Uses related to site-specific activities at petroleum brownfields sites
States and tribes may use section 128(a) funds for activities that establish
9 Oversight of assessment and cleanup activities performed by responsible parties (other than the state or tribe) does
not count toward the 50% limit.
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and enhance response programs addressing petroleum brownfield sites.
Subject to the restrictions listed above (see Section VI.D.l) for all site-
specific activities, the costs of site-specific assessment and cleanup
activities at petroleum brownfields sites defined, at CERCLA section
101(3 9)(D)(ii)(II), are both, eligible and 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).
4. Additional Examples of Eligible Site-Specific Activities
Other eligible uses of funds for site-specific related work include, but are
not limited to, the following activities:
• technical assistance to federal brownfields cooperative agreement
recipients;
• development and/or review of quality assurance project plans
(QAPPs); and
• entering data into the ACRES database
E. Uses related to 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. Other
uses not specifically referenced in this guidance may also be eligible and allowable.
Recipients should consult with their regional state or tribal contact for additional
guidance. Direct assessment and cleanup activities may only be conducted on eligible
brownfields sites, as defined in CERCLA section 101(39).
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT
FUNDING REQUESTS
Funding authorized under CERCLA section 128(a) is awarded through a cooperative
agreement10 between EPA and a state or a 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 as well as applicable provisions of 40 CFR
Part 35 Subparts A and B. 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. Further, unexpended balances of cooperative
agreement funds are subject to 40 CFR 35.118 and 40 CFR 35.518 to the extent consistent with
10A cooperative agreement is an agreement to a state/tribe that includes substantial involvement by the EPA on activities
described in the work plan which may include technical assistance, collaboration on program priorities, etc.
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this guidance. EPA allocates funds to state and tribal response programs under 40 CFR 35.420
and 40 CFR 35.737
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. Maximum funding request
For Fiscal Year 2014, EPA will consider funding requests up to a maximum of $1.0
million per state or tribe. Please note the CERCLA 128(a) program's annual budget has
remained relatively the same since 2003 while demand has increased over time. Due to
the increasing number of entities requesting funding, it is likely that the FY14 states and
tribal individual funding amounts will be less than the FY13 individual funding amounts.
C. Define the state or tribal response program
States and tribes must define in their work plan the "section 128(a) response program(s)"
to which the funds will be applied, and may designate a component of the state or tribe
that will be EPA's primary point of contact for negotiations on their proposed work plan.
When EPA funds the section 128(a) cooperative agreement, states and tribes may
distribute these funds among the appropriate state and tribal agencies that are part of the
section 128(a) response program. This distribution must be clearly outlined in their
annual work plan.
D. 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).
E. 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 lead authority to manage the program, e.g.,
hold funds, make loans, enter into loan agreements, collect repayment, access and secure
the site in event of an emergency or loan default. 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.
F. 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.
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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.
G. 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. While not prohibited, pre-award costs are subject to 40 CFR
35.113 and 40 CFR 35.513.
H. Demonstrating the four elements
As part of the annual work plan negotiation process, states or tribes that do not have VRP
MO As 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 elements
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, on progress
reports, or on EPA's review of the state or tribal response program.
/. Establishing and maintaining the public record
Prior to funding a state's or tribe's annual work plan, EPA regional offices will verify and
document that a public record, as described in Section V and below, exists and is being
maintained.11 Specifically for:
• states or tribes that received initial funding prior to FY13: Requests for FY14 funds
will not be accepted from states or tribes that fail to demonstrate, by the January 31,
2014 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 FY13cooperative agreement that prohibited drawdown of FY13 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; and
• states or tribes that received initial funding in FY13: By the time of the actual FY14
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 FY14 cooperative agreement that prohibits the
drawdown of FY14 funds until the public record requirement is met).
/. Demonstration of significant utilization of prior years'funding
States and tribes should be aware that EPA and its Congressional appropriations
11 For purposes of 128(a) 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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committees place significant emphasis on the utilization of prior years' funding. Unused
funds from prior years will be considered in the allocation process. Existing balances of
cooperative agreement funds as reflected in EPA's Financial Data Warehouse could
support an allocation amount below a recipient's request for funding or, if appropriate
deobligation and reallocation by EPA Regions as provided for in 40 CFR 35.118 and 40
CFR35.518.
EPA Regional staff will review EPA's Financial Database Warehouse to identify the
amount of remaining prior year(s) funds. The requestor 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.
K. Allocation system and process for distribution of funds
After the January 31, 2014, request deadline, EPA's 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 current year funding, funds remaining from
prior years, etc.
After receipt of the regional recommendations, EPA Headquarters will consolidate
requests and make decisions on the final funding allocations.
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 (dates are estimates
and subject to change):
Dec-Jan
Feb-April
Recipient
coordinates with
EPA Regional
Brownfields
Office to develop
funding requests
May
May-July
Regional
Brownfields
Offices inform
recipient of
funding
amount
r-N
1 — i/
Grantee works with
Regional Brownfields
Office to finalize
workplans, budgets, in
order to complete and
submit the cooperative
agreement application
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VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST
A. Summary of planned use of FY14 funding
All states and tribes requesting FY14 funds must submit (to their regional brownfields
contact, shown on the last page of this guidance) a summary of the planned use of the
funds with associated dollar amounts. Please provide the request in the chart below. The
amount of funding requested should be an amount that can be reasonably spent in one
year. It is likely that the FY14 state and tribal individual funding amounts will be less
than the FY13 individual funding amounts. The requestor should work, as early as
possible, with their EPA Regional Program contact to ensure that the funding amount
requested and related activities are reasonable.
B. Demonstration of significant utilization of prior years' funding
States and tribes that received section 128(a) funds in prior years must provide the
amount of prior years' funding including funds that recipients have not received in
payments (i.e., funds EPA has obligated for grants that remain in EPA's Financial Data
Warehouse). EPA will take into account these funds in the allocation process when
determining the recipient's programmatic needs under 40 CFR 35.420 and 40 CFR
35.737. The recipient should include a detailed explanation and justification of prior year
funds that remain in EPA's Financial Data Warehouse as unspent balances. The recipient
should obtain concurrence from the Region on the amount of unspent funds requiring
explanation by the January 31, 2014, deadline for submitting funding requests.
C. Optional: Explanation of overall program impacts of any funding reductions
Please explain the programmatic effects of a reduction (to your current funding amount)
on significant activities of your response program. Specifically, at what amount (e.g.,
percentage of your current funding level) would your response program experience core
programmatic impacts such as a reduction in staff, a decrease in oversight activities, or
other impacts to the environment and health of the communities the program serves, etc.?
An EPA Region may require that this information be submitted as part of the request for
funding in order to fully understand the individual program impacts associated with
decreased funding. These impacts will be considered as part of the decision for the final
allocation.
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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
FY13
Awarded
$xx,xxx
$xx,xxx
FY14 Requested
$xx,xxx
$xx,xxx
Summary of Intended Use (EXAMPLE USES)
1. Examples:
• inventory and prioritize brownfields
sites
• institutional control (IC)/engineering
control (EC) tracking
2. Examples:
• develop/enhance ordinances,
regulations, procedures for response
programs
3. Examples:
• develop a community involvement
nTY"\r*pcc
JJlUL-Caa
• community outreach
• 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:
• Develop/update cleanup standards
• 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, see Section VI. D for
more information on what activities
should be considered when calculating
site specific activities)
Environmental insurance
Revolving loan fund
Total funding
FY13
Awarded
$xx,xxx
$xx,xxx
$xx,xxx
$xx,xxx
$xxx,xxx
FY14 Requested
$xx,xxx
$xx,xxx
$xx,xxx
$xx,xxx
$xxx,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
• perform site assessments and cleanups
• develop QAPPs
• establish eligibility of target sites
• prepare Property Profile Forms/input
data into ACRES database for these
sites
• review potential uses of environmental
insurance
• manage an insurance risk pool
• create a cleanup revolving loan fund
Performance Partnership Grant? Yes D No D
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.
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A. Progress reports
In accordance with 40 CFR 31.40, states 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. At a minimum, state or
tribal progress reports must include both a narrative discussion and performance data
relating to the state's or tribe's accomplishments and environmental outputs associated
with the approved budget and workplan. Reports should also provide an accounting of
section 128(a) funding. If applicable, the state or tribe must include information on
activities related to establishing or enhancing the four elements of the state's or tribe's
response program. All recipients must provide information related 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 interim and final progress reports. Reports must prominently
display the following three relevant Essential Elements, as reflected in the
current EPA strategic plan: Strategic Plan Goal 3: Cleaning Up
Communities and Advancing Sustainable Development Strategic Plan
Objective 3.1: Promote Sustainable and Livable Communities, and Work
plan Commitments and Timeframes. EPA's strategic plan can be found
on the internet at http://www.epa.gov/planandbudget/strategicplan.html.
2. 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
states/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); and
o policies and procedures to implement legal authorities; and
other mechanisms;
• 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;
• narrative description of how these authorities or other mechanisms,
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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
• narrative description and copy of appropriate documents
demonstrating the exercise of oversight and enforcement authorities
by the response program at a brownfields site.
3. 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, 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 to 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 communities, and communities with limited
experience working with government agencies.
4. 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, the:
• number and frequency of oversight audits of licensed site professional
certified cleanups;
• number and frequency of state/tribal oversight audits conducted;
• number of sites where staff conducted audits, provided technical
assistance, or conducted other oversight activities; and
• number of staff conducting oversight audits, providing technical
assistance, or conducting other oversight activities.
5. Reporting required when using funding for an RLF. 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.
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6. Reporting environmental insurance. Recipients with work plans that
include funding for environmental insurance must report the :
• 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.);
• number of sites covered by the insurance;
• amount of funds spent on environmental insurance (e.g., amount
dedicated to insurance program, or to insurance premiums); and
• amount of claims paid by insurers to policy holders.
The regional offices may also request that additional information be added to the progress
reports, as appropriate, to properly document activities described by the cooperative
agreement work plan.
EPA regions may allow states or tribes to provide performance data in appropriate
electronic format.
The regional offices will forward progress reports to EPA Headquarters, if requested.
This information may be used to develop national reports on the outcomes of CERCLA
section 128(a) funding to states and tribes.
B. Reporting of program activity levels
States and tribes must report, by January 31, 2014, a summary of the previous federal
fiscal year's work (October 1, 2012 through September 30, 2013). The following
information must be submitted to your regional project officer:
• environmental programs where CERCLA 128(a) funds are used to support
capacity building (general program support, non-site-specific work). Indicate as
appropriate from the following:
Brownfields
Underground Storage Tanks/Leaking Underground Storage Tanks
Federal Facilities
_Solid Waste
Superfund
Hazardous Waste Facilities
VCP (Voluntary Cleanup Program, Independent Cleanup Program, etc.)
_Other ;
• number of properties (or sites) enrolled in a response program during FY13;
• number of properties (or sites) where documentation indicates that cleanup work is
complete and all required institutional controls PC's) are in place, or not required;
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• total number of acres associated with properties (or sites) in the previous bullet:
and
• number of properties where assistance was provided, but the property was not
enrolled in the response program (OPTIONAL).
EPA may require states/tribes to report specific performance measures related to the four
elements that can be aggregated for national reporting to Congress.
For example:
1. timely survey and inventory - estimated number of brownfields sites in the
state or on tribal land;
2. oversight and 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 site assessment requests, and responses to
such requests; and
4. cleanup approval/certification mechanisms - total number of "no further
action" letters or total number of certificates of completion.
[NOTE: This reporting requirement may include activities not funded with
CERCLA Section 128(a) funding, because such information may be helpful to
EPA when evaluating whether recipients 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, and in Section VII.I of this guidance, information related to establishing, or if
already established, maintaining the public record. States and tribes can refer to an
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; and b) is adequate. A public record may include the
following information:
A list of sites at which response actions have been completed in the past year 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);
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• whether an institutional control is in place;
• 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.); and
• size of the site, in acres.
A list of sites planned to be addressed by the state or tribal response program in the
coming year 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;
• 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.); and
• size of the site in acres.
D. Award administration information
1. Subaward and executive compensation reporting
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 170, unless they
qualify for an exception from the requirements, should they be selected for
funding.
2. System for Award Management (SAM) and Data Universal Numbering System
(DUNS) Requirements
Unless exempt from these requirements under OMB guidance at 2 CFR Part
2_5(e.g., individuals), applicants must:
1. Be registered in SAM prior to submitting an application or proposal under this
announcement. SAM information can be found at
https://www.sam.gov/portal/public/SAM/.
2. Maintain an active SAM 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
3. Provide its DUNS number in each application or proposal it submits to the
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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 website 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.
Please note that the CCR has been replaced by the System for Award
Management (SAM). To learn more about SAM, go to SAM.gov or
https://www.sam.gov/portal/public/SAM/ .
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 and conditions
related to this requirement.
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REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS
REGION
1
CT, ME, MA, NH,
Rl, VT
2
NJ, NY, PR, VI
3
DE, DC, MD, PA,
VA, WV
4
AL, FL, GA, KY,
MS, NC, SC, TN
5
IL, IN, Ml, MN,
OH,WI
6
AR, LA, NM, OK,
TX
7
IA, KS, MO, NE
8
CO, MT, ND, SD,
UT, WY
9
AZ, CA, HI, NV,
AS, GU
10
AK, ID, OR, WA
STATE
James Byrne
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 02 109-39 12
Phone (617) 918-1389 Fax (617) 918-1291
Alison Devine
290 Broadway, 18th Floor
New York, NY 10007-1 866
Phone (212) 637-4158 Fax (212) 637-3083
Janice Bartel
1650 Arch Street (3HS51)
Philadelphia, PA 19103
Phone (215) 814-5394 Fax (215) 814-3015
Nicole Comick-Bates
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8909
Phone (404) 562-9966 Fax (404) 562-8788
Jan Pels
77 West Jackson Boulevard (SE-7J)
Chicago, IL 60604-3507
Phone (312) 886-3009 Fax (312) 692-2161
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, TX 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
Susan Klein
11201 Renner Boulevard (SUPRSTAR)
LenexaKS 66219
Phone (913) 551-7786 Fax (913) 551-9786
Christina Wilson
1 595 Wynkoop Street (EPR-B)
Denver, CO 80202-1 129
Phone (303) 312-6706 Fax (303) 312-6065
Eugenia Chow
75 Hawthorne St. (SFD-6-1)
San Francisco, CA94105
Phone (415) 972-3160 Fax (415) 947-3520
Mary K. Goolie
222 West 7th Avenue #1 9 (AOO)
Anchorage, AK 99513 Phone ((907) 271-3414
Fax (907)271-3424
TRIBAL
AmyJean McKeown
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 021 09-391 2
Phone (617) 918-1248 Fax (617) 918-1291
Phillip Clappin
290 Broadway, 18th Floor
New York, NY 10007-1 866
Phone (212) 637-4431 Fax (212) 637-3083
Cindy J. Nolan
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8909
Phone (404) 562-8425 Fax (404) 562-8788
Jane Neumann
77 West Jackson Boulevard (SE-7J)
Chicago, IL 60604-3507
Phone (312) 353-0123 Fax (312) 697-2649
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, TX 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
Jennifer Morris
11201 Renner Boulevard (SUPRSTAR)
LenexaKS 66219
Phone (913) 551-7341 Fax (913) 551-9798
Barbara Benoy
1595 Wynkoop Street (8EPR-SA)
Denver, CO 80202-1 129
Phone (303) 312-6760 Fax (303) 312-6962
Glenn Kistner
75 Hawthorne St. (SFD-6-1)
San Francisco, CA 94105
Phone (415) 972-3004 Fax (415) 947-3520
Mary K. Goolie
222 West 7th Avenue #19 (AOO)
Anchorage, AK 99513 Phone ((907) 271-3414 Fax (907)
271-3424
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