vvEPA United States Environmental Protection Agency The Davis-Bacon Act and Brownfields Introduction By their design, EPA Brownfield Grants depend upon the efforts of a wide range of participants, including public- and private-sector entities who finance the transformation of brownfield sites as well as the individual workers and laborers on the front lines of cleanup and redevelopment. The U.S. government has laws in place to ensure that any worker involved in a federally funded public works project is compensated in a fair and timely manner.This legislation, known as the Davis-Bacon Act, applies to EPA-funded brownfields cleanup activities and projects funded under EPA Brownfield Cleanup and Revolving Loan Fund (RLF) Grants. Background on the Davis-Bacon Act The Davis-Bacon Act was enacted in 1931 in response to the rampant unemployment of the Depression era. At the time, the primary intent of the Act was to promote the hiring of skilled local workers by discouraging the import of laborers from other regions who would work for lower wages. Since its enactment, Davis-Bacon has been amended several times. The Act was briefly suspended twice—in 1992 and 2005— to facilitate emergency response activities following Hurricanes Andrew and Katrina. The Act is administered and enforced by the U.S. Department of Labor's Wage and Hour Division (WHD). Overview of the Act The Davis-Bacon Act applies to EPA Brownfield Grants by way of section 104(g) °f the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), under which: "...all laborers arid mechanics employed by contractors or subcontractors employed in the performance of construction, alteration, or repair work funded in whole or in part [by Brownfield Grants] shall be paid locally prevailing wages." These locally prevailing wage rates are determined by the U.S. Department of Labor and can be accessed in a searchable database at the following address: https://sam.gov/content/ wage-determinations. The Act covers all contractors and subcontractors performing work on federally funded or assisted construction contracts in excess of $2,000. While apprentices and trainees may be employed at less than predetermined rates, apprentices must be employed pursuant to an apprenticeship program registered with the Department of Labor or with a state apprenticeship agency recognized by the Department. How Does the Act Apply to Brownfields Projects? The Davis-Bacon Act applies to all construction, alteration, and repair (including painting and decorating) contracts and subcontracts for work funded in whole or in part with EPA CERCLA i04(k) grant funds as provided in CERCLA 104(g). For cleanup activities funded through EPA Brownfield Cleanup and RLF Grants, recent and applicable wage rates from the U.S. Department of Labor must be incorporated into construction, alteration, and repair (including painting and decorating) bid solicitation documents and contracts. Note: If a Brownfield Grant recipient is uncertain about whether a cleanup activity falls under Davis-Bacon Act requirements, the recipient should discuss the situation with EPA before authorizing work on the site. How Davis-Bacon Applies to Cleanup of Petroleum-Contaminated Brownfields Some cleanup activities at sites contaminated by petroleum are not subject to Davis-Bacon Act requirements. Such activities include site remediation through drilling temporary recovery wells, drawing out contaminated soil or water, treating the contaminated soil/water on site, removing the treatment technology and closing recovery wells, and restoring the area surrounding tank removal by filling and compacting the soil. However, the Davis-Bacon Act doesapply to the following petroleum- related cleanup activities: ¦ Installing piping to connect households or businesses to public water systems or replacing public water system supply well(s) and associated piping due to groundwatercontamination. ¦ Soil excavation/replacement when undertaken in conjunction with the installation of public water lines/wells described above. ¦ Soil excavation/replacement, tank removal, and restoration of the area by paving or pouring concrete when the soil excavation/replacement occurs in conjunction with both tank removal and paving or concrete replacement. An old underground storage tank being pulled from the ground. ------- In specific legal terms, "the recipient must ensure that solicitations and contracts contain the clauses required by 29 CFR 5.5 and any applicable EPA guidance." Please note that EPA and the U.S. Department of Labor are responsible for overseeing Brownfield Grant recipients' compliance with Davis-Bacon Act requirements, and EPA Regional project managers are available to assist grant recipients (and in the case of RLFs, borrowers and subgrantees) in this regard. RLF grant recipients may require RLF borrowers and/or subgrantees to perform portions of the Davis-Bacon Act requirements identified in the flow chart below. Brownfield Cleanup cooperative agreement awarded or for RLF cooperative agreements, a site has been identified and a loan or subgrant is in progress, Recipient obtains prevailing Wage Determination (WD) for the locality the cleanup will occur in from the Department of Labor (DOL) Web site, https://sam.aov/content/wage- determinations If the WD does not include a labor category to be employed under the contract, the recipient shall submit information regarding the proposed classification and wage rates for that labor category to the EPA Award Official i"he EPA Award Official will submit the request to DOL for authorization of the classification and wage rate and will notify the recipient of the appropriate classification and wage rate to use in their executed contract(s). For Non-Profit Cleanup Grant Recipients Only: Non-Profit Cleanup Grant recipients must submit the proposed WD to the EPA Davis-Bacon Point of Contact (POC) listed in their cooperative agreement Terms and Conditions (T&Cs). The EPA Davis-Bacon POC must verify the WD prior to the non-profit recipient placing the WD in any solicitations. Recipients must ensure the correct WDs for the locality the cleanup will take place in are included in all prime contract solicitations for construction, alteration, or repair (including painting and decorating) as interpreted by the T&Cs of their Brownfield Grants that are funded all, or in part, with EPA funds. Note: RLF recipients must ensure that prevailing WDs are included in borrower and subgrant recipient solicitations for prime contracts, Unlike subgrant recipients, EPA's grant regulations do not require that borrowers award prime contracts competitively, although such a requirement may be imposed by state or local law, Recipients must immediately report or require borrowers or subgrant recipient s to immediately report potential violations of the Davis-Bacon prevailing wage requirements to the EPA Davis-Bacon POC identified in their T&Cs and to the appropriate DOL Wage and Hour District Office listed at: httDs://www.dol.aov/aaencies/whd/contact/ local-offices Recipients compare payroll records to employee interviews to confirm and document compliance with Davis-Bacon requirements. Note: Recipients are required to maintain a copy of the completed WH-347and employee interviews as part of the cooperative agreement file and be able to provide a copy of the payroll verification to EPA upon request. Recipients perform on-site verification/interviews with workers entitled to Davis-Bacon wages, GSA Standard Form 1445: httos ://www,asa ,aov/f i les/S F1445 For more detailed information, including copies of explanatory brochures and regulatory and interpretative materials, please refer to the links below or contact your local Wage and Hour Division office (a list of local Wage and Hour Division offices is available at https://www.dol gov/ aaencies/whd/contact/local-offices. A Wage and Hour Division helpline is also available at 1-866-4US-WAGE (487-9243). Related Links Frequently Asked Questions specific to Brownfields and Davis-Bacon https://www.epa.gov/brownfields/davis-bacon-act-and-brownfields Davis-Bacon and Related Acts Home Page at the U.S. Department of Labor https://www.dol.gov/agencies/whd/government-contracts/construction Davis-Bacon Act Compliance Assistance Resource: Employment Law Guide— Federal Contracts-Working Conditions: Prevailing Wages in Construction Contracts https://webapps.dol.aov/elaws/ela/dbra.htm Additional Davis-Bacon Wage Determination Reference Materials https://sam.gov/content/wage-determinations Contact Information EPA's Office of Brownfields and Land Revitalization (OBLR) http://www.epa.gov/brownfields Office of Brownfields and Land Revitalization (5105T) | EPA 560-F-23-288 | June 2023 | www.epa.gov/brownfields ------- |