United States
Environmental Protection
Agency
(5150T)
Office of Brownfields
and Land Revitalization
EPA-560-F-22-310
October 2022
Funding Guidance for FY 2023 Section 128(a) State and Tribal Response Program
with funding provided by Annual Appropriations and the Infrastructure
Investment and Jobs Act
Section 128(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (""CERCLA"). as
amended,1 authorizes the United States Environmental Protection Agency's (""EPA's") Office of Brownfields and
Land Revitalization ("Brownfields Program" or "OBLR ) to manage a noncompetitive grant program to establish or
enhance state2 and Tribal3 environmental response programs. These CERCLA Section 128(a) response program grants
(hereinafter referred to as "Section 128(a)") are funded with categorical State and Tribal Assistance Grant ("STAG")
appropriations and awarded in the form of a cooperative agreement, which is a type of assistance agreement that is
used when there is substantial federal involvement with the recipient during the performance of an activity or project.
Section 128(a) cooperative agreements are awarded and administered by EPA regional offices.
The Infrastructure Investment and Jobs Act (TIJ A" or "Infrastructure Law"),4 signed into law in November 2021,
invests $300 million over five federal fiscal years (FY22-FY26), "to carry out section 128 of [CERCLA]." This
amounts to approximately $60 Million per year in cooperative agreements for states and Tribes to build response
program capacity, oversee brownfields cleanups, and conduct site assessment and cleanup activities. The Infrastructure
Law did not alter the underlying statutory authority for the CERCLA Section 128(a) Program, but simply provided
crucial additional funds to support it. One of EPA's top priorities is uplifting underserved communities, Tribal Nations,
and communities across the country that have endured deeply-rooted public health and environmental challenges.
In addition, pursuant to Section 128(a)(l)(B)(ii)(III), the Brownfields program has authority to allocate up to $1.5 M of
CERCLA 104(k) funding for technical assistance grants ("Section 128(a) TAG") to assist small communities, Indian
Tribes, rural areas, or disadvantaged areas, in carrying out activities described in Section 9604(k)(7)(A), such as
providing training, research, and technical assistance to individuals and organizations, as appropriate, to facilitate the
inventory of brownfields sites, site assessments, remediation of brownfield sites, community involvement, or site
preparation. By law, the maximum amount per Section 128(a) TAG is $20,000. In FY23, EPA will allow eligible
states and Tribes to request up to three Section 128(a) TAG to benefit eligible communities. They will be funded with
annual appropriated funds, not IIJA funds. See Appendix A of this Funding Guidance for additional information
regarding requesting Section 128(a) TAG, and review the Section 128(a) TAG Fact Sheet for general information.
The Brownfields Program issues this FY 2023 Section 128(a) Funding Guidance, for funding that is provided by
EPA's FY23 Annual Appropriation Act and the FY23 Section 128(a) IIJA funds.5
The Catalogue of Federal Domestic Assistance (https://www.cfda.gov/) listing for Section 128(a) cooperative
agreements is 66.817.
For additional information about the Section 128(a) Program, please see the Section 128(a) Fact Sheet and the Section
128(a) State and Tribal Response Program page on the EPA Brownfields website.
1 42 USC 9628(a).
2The term "state" is defined in this document as defined in CERCLA ง101(27).
3The term "Indian tribe" is defined in this document as it is defined in CERCLA ง101(36). Intertribal consortia, as defined in the Federal Register
Notice at 67 FR 67181, Nov. 4, 2002, are also eligible for funding under CERCLA ง128(a).
4 https://www.wliitehouse.gov/bipartisan-infrastructure-law/
5 The Agency may waive any provision of this guidance that is not required by statute, regulation, Executive Order or overriding Agency
policies.
Introduction
-------
FY23 Highlights
Requests for funding will be accepted from October 7, 2022 until December 16, 2022, and should be sent to the
EPA Regional Office contact listed at the end of this Funding Guidance. Requests that EPA receives after
December 16, 2022, will not be considered for FY2023 Section 128(a) funding.
EPA will accept one request from each eligible state or Tribe.
Requests for funding must include the information listed in Sections VII and VIII of this guidance. States or
Tribes that do not submit the request in the appropriate manner may not be eligible to receive funds.
EPA will consider funding requests up to a maximum of $1.8 Million total for FY23 Section 128(a) funding
per CAR. This maximum amount includes Annual Appropriation +IIJA funds.
Please note that demand for this program is high and not all requests will be fully awarded.
Once EPA makes final determinations with respect to funding requests and allocations of funds, the state or Tribe
will work with the appropriate EPA regional office to negotiate a cooperative agreement, which includes a final
work plan and budget.
For planning purposes, EPA anticipates that the FY23 funds allocated pursuant to this Funding Guidance will be
awarded in the third or fourth quarter of the federal fiscal year 2023 (April-September 2023). Section 128(a)
cooperative agreements are awarded and administered by EPA regional offices; please contact your regional EPA
Project Officer for more specific timing on cooperative agreement awards.
Section 128(a) Infrastructure Law funds may not be comingled with other sources of funding, and EPA will award
the funds separately from other grant awards.
Section 128(a) Infrastructure Law funds are not eligible to be included in State and Tribal Performance
Partnership Grants ("PPGs") under 40 CFR Part 35 Subparts A and B. This restriction is intended to ensure that
Section 128 recipients will be able to effectively track, account for, and report on the use of Infrastructure Law
funding. However, Section 128(a) funding from EPA's FY23 annual appropriation may be included in a PPG
with the exception of funding to 1) capitalize a revolving loan fund for brownfields remediation under section
104(k)(3), 2) 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, or 3) to provide CERCLA 128(a)
TAG assistance under section 128(a)(I)(B)(ii)(III).
In FY23, EPA will allow eligible states and Tribes to request up to three Technical Assistance Grants ("TAG") at
up to $20,000 per grant. Section 128(a) TAG will be funded with annual appropriated funds, not IIJA funds. See
Appendix A of this Funding Guidance for additional information regarding requesting Section 128(a) TAG.
EPA expects that funding awarded to cooperative agreement recipients will advance the Administration's
Justice40 priorities. EPA will award this funding in accordance with the Biden Administration's Justice40
Initiative, which promises to deliver at least 40 percent of the overall benefits from key federal investments to
disadvantaged communities.
EPA will place special emphasis on reviewing a cooperative agreement recipient's use of prior Section 128(a)
funding in making allocation decisions. Unexpended balances are subject to 40 CFR 35.118 and 40 CFR 35.518 to
the extent consistent with this guidance.
Starting April 4, 2022, the new Unique Entity ID from SAM.gov will be the official, government-wide identifier
used for federal awards. States and Tribes requesting funds are required to provide a free SAM.gov-issued Unique
Entity Identifier (UEI), not their DUNS number. Please see the RAIN-2021-G01 for information about EPA's
implementation of the Government-wide transition from DUNS to UEI.
-------
Table of Contents
I. BACKGROUND 4
II. ELIGIBILITY FOR FUNDING 4
III. MATCHING FUNDS/COST-SHARE 4
IV. THE FOUR ELEMENTS - SECTION 128(a)(2) 4
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 6
A. Overview and Prioritization of Funds 6
B. Uses related to establishing a state or Tribal response program 7
C. Uses related to enhancing a state or Tribal response program 7
D. Uses related to site-specific activities 8
E. Uses related to activities at "non-brownfield" sites 10
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT FUNDING REQUESTS 11
A. One application per State or Tribe 11
B. Maximum funding request 11
C. Define the State or Tribal response program 11
D. Separate cooperative agreements for Infrastructure Funds 11
E. Infrastructure funds may not be used for Section 128(a) Technical Assistance Grants ("TAG") 11
F. Section 128(a) cooperative agreements funded with Infrastructure Law money may not be part of a Performance
Partnership Grant ("PPG") 12
G. Project period 12
H. Demonstrating the four elements 12
I. Establishing and maintaining the public record 12
J. Demonstration of significant utilization of prior years' funding 12
K. Allocation system and process for distribution of funds 13
L. Separate cooperative agreements for the capitalization ofRLFs using Section 128(a) funds and authority to manage a RLF
program 13
VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST 14
A. All CARs requesting FY23 Section 128(a) funds must submit a funding request to the appropriate EPA regional
brownfields contact listed on the last page of this Funding Guidance by December 16, 2022 14
B. Sample Section 128(a) Request Form In APPENDIX B 16
IX. TERMS AND REPORTING 16
A. Progress reports 17
B. Reporting Program Activity Levels ("PALs") 18
C. Reporting of public record 19
D. Updating the State Brownfields and Voluntary Response Programs Report in ACRES 20
E. Cooperative Agreement Award administration information 20
REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS 22
APPENDIX A: FUNDING GUIDANCE FOR CERCLA SECTION 128(A) TECHNICAL ASSISTANCE GRANTS
("TAGS") 23
APPENDIX B: SAMPLE SECTION 128(A) FUNDING REQUEST FORM 25
-------
I. BACKGROUND
State and Tribal response programs oversee assessment and cleanup activities at brownfield sites across the country.
The depth and breadth of these 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 states also offer accompanying financial incentive programs to spur cleanup and redevelopment of contaminated
properties. In enacting CERCLA Section 128(a),6 Congress recognized the value of state and Tribal response programs
in cleaning up and reusing brownfield sites. Section 128(a) strengthens EPA's partnerships with states and Tribes and
recognizes their response programs' critical role in overseeing cleanups.
The passage of the Bipartisan Infrastructure Investment and Jobs Act ("IIJA" or "Infrastructure Law")7 in November
2021, did not alter the underlying statutory authority for the CERCLA Section 128(a) Program, but simply provided
additional funds to support it.
Section 128(a) funding is intended for states and Tribes that have the required management and administrative capacity
within their government 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 program establishes and maintains a public record of sites addressed.
Subject to the availability of funds, EPA regional personnel will provide technical assistance to states and Tribes as
they apply for and carry out Section 128(a) Cooperative Agreements funded with appropriations made available to
EPA under the Infrastructure Law.
II. ELIGIBILITY FOR FUNDING
To be eligible for Section 128(a) funding, a State or Indian Tribe (as defined by CERCLA Section 101(27) and
101(36), respectively) must:
1. demonstrate that it has a response program that includes, or is taking reasonable steps to include, the four
elements of a response program enumerated in CERCLA Section 128(a)(2) and described in Section IV of
this guidance; or be a party to a voluntary response program Memorandum of Agreement ("VRP MOA")
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
128(b)(1)(C)).
III. MATCHING FUNDS/COST-SHARE
States and Tribes are not required to provide cost shares ("matching funds") for Section 128(a) cooperative
agreements, with the exception of Section 128(a) funds a state or Tribe uses to capitalize a Brownfields Revolving
Loan Fund ("RLF"), for which there is a 20% cost share requirement. Section 128(a) funds used to capitalize a RLF
must be expended in accordance with CERCLA section 104(k)(3).
IV. THE FOUR ELEMENTS - SECTION 128falf21
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 enumerated in CERCLA Section 128(a)(2) and
described below. Achievement and continuing enhancement of the four elements should be viewed as a priority.
CERCLA Section 128(a) authorizes funding for activities necessary to establish or enhance the four elements and to
establish and maintain the public record requirement.
The four elements of a response program enumerated in CERCLA Section 128(a)(2) are described below:
6Section 128(a) was added to CERCLA in 2002 by the Small Business Liability Relief and Brownfields Revitalization Act (Brownfield
Amendments).
7 https://www.whitehouse.gov/bipartisan-infrastructure-law/
-4-
-------
1. Timely survey and inventory of brownfield sites in state or Tribal land. The goal for 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 brownfield 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 brownfield sites. However, at a minimum, the state or Tribe must develop and/or
maintain a system or process that can provide a reasonable estimate of the number, likely location, and general
characteristics of brownfield sites within their state or Tribal lands. Inventories may 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 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 CERCLA Section 104(k)(2)
Brownfields Assessment cooperative agreement recipients conduct inventories of brownfield 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. The goal for this element is to
have state and Tribal response programs that include oversight and enforcement authorities or other
mechanisms and resources 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
action fails to complete them (this includes operation and maintenance and/or long-term monitoring
activities).
3. Mechanisms and resources to provide meaningful opportunities for public participation.8 The goal for 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:
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. prior notice and opportunity for meaningful public comment on cleanup plans and site activities; 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 brownfield site located in the community in
which the person works or residesmay 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 cleanup plans and verification and certification that cleanup is complete. The
goal for 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, as described below, to enable meaningful public participation9 (refer to Section IV.3
above). Specifically, per CERCLA Section 128(b)(1)(C), states and Tribes must:
8States and tribes establishing this element may find useful information on public participation on the EPA's community involvement web site at
https://www.epa.gov/superfund/superfund-communitv-involvement.
9 CERCLA ง128(b)(l)(C).
-------
1.
maintain and update, at least annually, or more often as appropriate, a public 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 public record that includes the name and
location of sites at which response actions are planned 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 and
include relevant information concerning the entity 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.
A. Distinguishing the "survey and inventory" element from the "public record"
It is important to note that the public record requirement of CERCLA Section 128(a)(2)(C) differs from the
"timely survey and inventory" element in CERCLA Section 128(a)(2)(A) described in the "Four Elements"
Section IV. 1. 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 brownfield sites regardless of planned or completed actions.
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 such information available to the public via the internet or other
avenues. 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.10 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 they are able to do so.
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. Lona-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.11
VI. USE OF FUNDING
A. Overview and Prioritization of Funds
CERCLA Section 128(a)(1)(B) provides that states and Tribes may use Section 128(a) funding to establish or
enhance its response program. Specifically, a state or Tribe may use cooperative agreement funds to build
10 For further information on data quality requirements for latitude and longitude information, please see the EPA's data standards web site
available at https://www.epa.gov/sites/production/files/2015-06/documents/latlongstandard-v2a 10022014.pdf.
"States and tribes may find useful information on institutional controls on the EPA's institutional controls web site at
https://www.epa.gov/superfund/superfund-institutional-controls-guidance-and-policv .
-------
response programs that include the four elements outlined in Section 128(a)(2), which are summarized in this
Funding Guidance in Section IV above.
There is very high demand for Section 128(a) funds, and not all requests can be fully awarded. As
expressly stated in the Assistance Listing for 66.817, funding will be prioritized as follows:
(1) Funding for program development activities to establish or enhance the four elements of a state
or Tribal response program (see Sections VI.B. and VI.C. below) and to enable states and Tribes to
comply with the public record requirement in Section 128(b)(1)(C), including activities related to
institutional controls;
(2) Funding for program development activities to enhance the response program or the cleanup
capacity of a state or Tribal response program;
(3) Funding for site-specific activities at eligible Brownfields sites, as defined in CERCLA Section
101(39)12 (see Section VI.D. below);
(4) Funding for environmental insurance mechanisms;
(5) Funding to capitalize brownfields cleanup RLFs.13
One of EPA's top priorities is uplifting underserved communities, Tribal Nations, and communities across the
country that have endured deeply-rooted public health and environmental challenges. EPA expects that
Section 128(a) funding awarded to cooperative agreement recipients will advance the Administration's
Justice40 priorities. EPA will award this funding in accordance with the Biden Administration's Justice40
Initiative, which promises to deliver at least 40 percent of the overall benefits from key federal investments to
disadvantaged communities.
B. Uses related to establishing a state or Tribal response program
Under 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 Section 128(a), "enhance" includes related 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 such programs.
The exact enhancement activities 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 (training examples include ASTM standards for
conducting Limited Transaction Screens, Environmental Phase I and Phase lis). It may also include
12 In addition to the requirement under 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 addressedespecially from
local communities with health risks related to exposure to hazardous waste or other public health concerns, those in economically
disadvantaged or remote areas, and those with limited experience working with government agencies.
13 Capitalizing a revolving loan fund ("RLF") for brownfields cleanup as authorized 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 CERCLA section 104(k)(3), with one exception: although non-competitive supplemental funding for RLFs established
under CERCLA 128(a) is authorized, the source of the funding would be the CERCLA 128(a) appropriation rather than the
CERCLA 104(k) appropriation. Requirements include a 20 percent cost share (in the form of money, labor, material, or services
from a non-federal source in compliance with 2 CFR 200.306) on the amount of Section 128(a) funds used for the RLF, the 5%
limitation on eligible administrative costs, 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 relevant to CERCLA Section 104(k)(4)
also apply.
-------
developing better coordination and understanding of other state or Tribal environmental programs.
As another example, states and Tribal response program enhancement activities can also include outreach to
local communities to increase awareness about brownfields, building a sustainable brownfields program,
federal brownfields technical assistance 14 (e.g., holding workshops to assist communities in applying for
federal Brownfields grant funding, attending health fairs and cleanup days to inform individuals how to
identify hazards in their own living areas, abandoned buildings and among dumping areas), and knowledge
regarding the importance of monitoring engineering and institutional controls. Additionally, enhancement
activities can include facilitating the participation of the state and local agencies (e.g., transportation, water,
other infrastructure) in implementation of brownfields projects. States and Tribes can also help local
communities collaborate with local workforce development entities or Brownfields Job Training recipients on
the assessment and cleanup of brownfield sites.15 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 must establish 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 I, phase II, supplemental
assessments and cleanup planning) and cleanup activities that will expedite the reuse and
redevelopment of sites, and prioritize sites based on need.16
b. As provided in the Terms and Conditions of CERCLA 128(a) cooperative agreements, absent
EPA Project Officer approval, no more than $250,000 per site assessment can be funded with
Section 128(a) funds, and no more than $250,000 per site cleanup can be funded with Section
128(a) funds.
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.
c. States and Tribes that perform site-specific activities should plan to directly engage with and
involve affected communities. For example, a Community Involvement Plan ("CIP") could be
developed to provide reasonable notice about a planned cleanup, as well as opportunities for the
public to comment on the cleanup.
d. CARs should describe in their requests whether, and if so, how, site-specific work will address
environmental justice ("EJ") concerns in underserved communities and/or climate change
14 EPA expects states and tribes will familiarize themselves with EPA's brownfields technical assistance opportunities for brownfields
communities. For more information on technical assistance opportunities, please visit: https://www.epa.gov/brownfields/brownfields-technical-
assistance-training-and-research.
15 For more information about EPA's Brownfields Job Training Program, please visit:
https://www.epa.gov/brownfields/brownfields-iob-training-it-grants.
16 An example of prioritizing sites based on need can be focusing on environmental justice. EPA defines environmental justice as
the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the
development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all
communities and persons across the nation. Environmental justice will be achieved when everyone enjoys the same degree of
protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment
in which to live, learn, and work. For more information, please visit https://www.epa.gov/environmentaliustice.
-------
impacts.17 While CARS are not required to utilize it, EPA's EJSCREEN is a helpful
environmental justice mapping and screening tool that provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.18 CARs may also consider
using the beta version of the White House Council on Environmental Quality's Climate and
Economic Justice Screening Tool (CEJST) as an optional and complementary tool to help identify
potential pollution-overburdened and underserved communities. Data from other EJ-focused
geospatial mapping tools or other sources (e.g. studies, census, etc.) could also be included to
provide information on impacted communities and populations.
e. As provided in the Terms and Conditions of CERCLA 128(a) cooperative agreements, absent
EPA Project Officer approval, the state/Tribe may not use funds awarded under this agreement to
assess and/or cleanup sites owned or operated by the recipient or (in the case of Tribes) held in
trust by the United States Government for the recipient.
f. Assessments and cleanups cannot be conducted at sites where the state is a potentially responsible
party ("PRP") pursuant to CERCLA Section 107, except when the state acquired the property
before January 11, 2002, and has not caused or contributed to a release or threatened release of a
hazardous substance at the property.
g. Subawards are defined at 2 CFR 200.1 and may not be awarded to for-profit organizations. If the
recipient plans on making any subawards under the cooperative agreement, then it becomes a
pass-through entity for the purposes of EPA's "Establishing and Managing Subawards" General
Term and Condition and EPA's Subaward Policy. As the pass-through entity, the recipient must
report on its subaward monitoring activities under 2 CFR 200.332(d). Additional reporting
requirements for these activities will be included in the cooperative agreement.
In addition, subawards cannot be provided to entities that may be PRPs (pursuant to CERCLA
Section 107) at the site for which the assessment or cleanup activities are proposed to be
conducted, except when the subrecipient acquired the property before January 11, 2002, and has
not caused or contributed to a release or threatened release of a hazardous substance at the
property.
2. Limitations on the amount of funds used for site-specific activities and waiver process
a. States and Tribes may use Section 128(a) funding for site-specific activities that improve
state or Tribal capacity. However, the terms and conditions of the CERCLA 128(a)
cooperative agreement will provide that the amount recipients may utilize for site-specific
assessments and cleanups may not exceed 75% of the total amount of FY23 Section 128(a)
funding,19 absent an approved waiver request. This 75% cap includes FY23 Annual
Appropriation + IIJ A funds.
b. In order to exceed the 75% site-specific funding limit, a state or Tribe must submit a written
waiver request to the EPA Project Officer; waiver requests 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;
17 Goal 1 of EPA's FY 2022-2026 Strategic Plan is "Tackle the Climate Crisis." Climate change exacerbates existing pollution
problems and environmental stressors impacting the nation's land, air, and water and the people who depend on them.
Overburdened and underserved communities and individuals are particularly vulnerable to these impacts, including low-income
communities and communities of color, children, the elderly, Tribes, and indigenous peoples.
18 Visit https://www.epa.gov/eiscreen to access EPA's EJSCREEN Tool and for additional information on EJSCREEN, general
guidance on how to use the tool, understanding results, technical information, and more resources. CARs can also contact their
EPA Technical Assistance to Brownfields Communities (TAB) Provider for guidance on using EJSCREEN.
19 Oversight of assessment and cleanup activities performed by responsible parties (other than the state or tribe) does not count
toward the 75% limit. The 75% cap also does not include personnel or supplies/equipment purchased in support of site-specific
work.
-------
site-specific activities that will be covered by this funding, and how these activities establish
or enhance the response program and are tied to the four elements;
how the affected community will be (or has been) involved in prioritization and planning of
site work, especially those sites where there is a potential or known significant environmental
impact to the community;
whether (and if so, how) such work will benefit a community with environmental justice
concerns; and
an explanation of how this shift in funding will not negatively impact the state or Tribe's core
programmatic capacity (i.e., the ability to establish/enhance the four required elements of a
response program) and how the core program activities will be maintained in spite of an
increase in site-specific work. CARs 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 75% limit on using 128(a) funds for site-specific activities.
c. The EPA Project Officer will review the waiver request and make a recommendation to EPA's
Office of Brownfields and Land Revitalization ("OBLR"). OBLR will review waiver requests
based on the information in the written justification, the EPA PO recommendation, and other
information available to the Agency. Waivers will be approved on a very limited basis. The EPA
Project Officer will inform the CAR whether the waiver is approved.
3. Uses related to site-specific activities at petroleum brownfield sites
States and Tribes may use Section 128(a) funds for activities that establish or enhance response programs
addressing petroleum brownfield sites. Subject to the restrictions listed above (see Section VI.D. 1) for all
site-specific activities, the costs of site-specific assessment and cleanup activities at petroleum brownfield
sites, as defined in 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.20
States and Tribes are encouraged to reach out to their EPA regional brownfields contacts with questions on
petroleum brownfield site eligibility and where to get additional information. Also check out resources on
EPA's Brownfields website, such as Community Visions for Abandoned Gas Stations and EPA's
Petroleum Contact List for Tribes. Additional information about petroleum brownfields can be found on
EPA's Office of Underground Storage Tank's ("OUST's") Petroleum Brownfields webpage.
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 CERCLA 104(k) brownfields cooperative agreement recipients;
development and/or review of quality assurance project plans ("QAPPs"); and
entering data into the Assessment Cleanup and Redevelopment Exchange System ("ACRES")
database.
E. Uses related to activities at "non-brownfield"sites
Other uses not specifically referenced in this guidance may also be eligible and allowable. Recipients should
consult with their EPA Project Officer for additional guidance. Costs incurred for activities at non-brownfield
sites may be eligible and allowable if such activities are included in the state's or Tribe's work plan, however,
direct assessment and cleanup activities may only be conducted on eligible brownfield sites, as defined in
CERCLA Section 101(39).
20 Section 128(a) funds used to capitalize a Brownfields RLF may be used at brownfield sites contaminated by petroleum to the extent allowed
under CERCLA section 104(k)(3), subject to the Brownfields RLF requirements described above.
-10-
-------
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128fal GRANT
FUNDING REQUESTS
Funding authorized under Section 128(a) is awarded through a cooperative agreement21 between EPA and a state or a
Tribe (the Cooperative Agreement Recipient ("CAR")). The Brownfields Program administers cooperative agreements
under the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards
regulations for all entity types including states, Tribes, and local governments found in the Code of Federal
Regulations ("CFR") at 2 CFR Part 200 and any applicable EPA regulations at 2 CFR Part 1500, as well as applicable
provisions of 40 CFR Part 35 Subparts A and B. Under these regulations, the CAR for a Section 128(a) grant is the
government to which a cooperative agreement is awarded and which is accountable for use of the funds provided.
The CAR is the 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 restrictions
under 40 CFR 35.118 and 40 CFR 35.518. EPA allocates funds to state and Tribal response programs consistent with
40 CFR 35.420 and 40 CFR 35.737.
A. One application per State or Tribe
EPA will accept one funding request from each eligible state or Tribe.22
B. Maximum funding request
EPA will consider funding requests up to a maximum of $1.8 Million for FY23 Section 128(a) funding per
CAR. This maximum amount includes Annual Appropriation +IIJA funds. Please note that demand for
this program is high and not all requests will be fully awarded.
C. Define the State or Tribal response program
CARs must define in their funding request 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.
When EPA funds the Section 128(a) cooperative agreement, CARs 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 final work plan.
D. Separate cooperative agreements for Infrastructure Funds
Due to the budget accounting, tracking, and reporting requirements for the Infrastructure Law, Section 128(a)
cooperative agreements funded with Infrastructure Law money must be awarded separately from Section
128(a) cooperative agreements funded with Annual Appropriated funds.
If a CAR's FY23 allocation includes both funding sources, and therefore two awards are necessary, each
award's final workplans must clearly delineate what activities will be funded by Annual Appropriation funds
versus Infrastructure Law funds. Please work closely with your EPA Project Officer to ensure that there is no
overlap or duplication of work funded by the two sources of funding.
E. Infrgstructure funds mgv not be used for Section 128(g) Technicgl Assistgnce
Grgnts f'TAG")
In FY23, EPA will allow eligible states and Tribes to request up to three Section 128(a) Technical Assistance
Grants ("TAG") at up to $20,000 per grant. Section 128(a) TAG will be funded with annual appropriated
funds, not IIJA funds. Review the Section 128(a) TAG Fact Sheet for general information, and see Appendix
A of this Funding Guidance for information regarding requesting FY23 Section 128(a) TAG.
21 A cooperative agreement is an agreement with 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.
22 Entities eligible to receive State and Tribal Response Grants include: State, as defined in CERCLA ง 101(27), Indian tribe, as
defined in CERCLA ง 101(36), and Intertribal consortia, as defined in the Federal Register Notice at 67 FR 67181, Nov. 4, 2002.
-11-
-------
F. Section 128(a) cooperative agreements funded with Infrastructure Law money
may not be part of a Performance Partnership Grant ("PPG")
Section 128(a) Infrastructure Law funds are not eligible to be included in State and Tribal Performance
Partnership Grants ("PPGs") under 40 CFR Part 35 Subparts A and B. This restriction is intended to ensure
that Section 128 recipients will be able to effectively track, account for, and report on the use of Infrastructure
Law funding.
However, Section 128(a) funding from EPA's FY23 annual appropriation may be included in a PPG,
with the exception of funding to 1) capitalize a revolving loan fund for brownfields remediation under section
104(k)(3), 2) 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, or 3) to provide CERCLA
128(a) TAG assistance under section 128(a)(I)(B)(ii)(III).
G. Project period
EPA regional offices will determine the project period for each cooperative agreement. Depending on the EPA
regional office's cooperative agreement policies, cooperative agreements may be for multiple years. CARs are
encouraged to discuss this potential option with their regional EPA Project Officer.
Notwithstanding this potential overall structure, each cooperative agreement must still have an annual budget
period tied to an annual work plan, because CARs must still submit annual funding requests to receive
additional funds added to the agreement. 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 final work plan negotiation process, CARs that do not have VRP MOAs will need to
demonstrate that their response program includes, or is taking reasonable steps to include, the four elements
described in Section IV. EPA will not fund a CAR's work plan 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 CAR
provides to support its initial funding request, on previous year's progress reports, or on EPA's review of the
CAR's response program.
/. Establishing and maintaining the public record
Prior to funding a CAR's final 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.23 Specifically, for:
CARs that received initial funding prior to FY22: Requests for FY23 funds will not be accepted from
states or Tribes that fail to demonstrate, by the December 16, 2022, request deadline, that they established
and are maintaining a public record. (Note, this would potentially impact any CAR that had a term and
condition placed on their FY22 cooperative agreement that prohibited drawdown of FY22 funds prior to
meeting the public record requirement). CARs in this situation will not be prevented from drawing down
their prior year funds once the public record requirement is met; and
CARs that received initial funding in FY22: By the time of the actual FY23 award, the CAR 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 FY23 cooperative agreement that
prohibits the drawdown of FY23 funds until the public record requirement is met).
L Demonstrgtion of significant utilizgtion of prior years'funding
CARs should be aware that EPA and its Congressional appropriations committees place significant emphasis
on the utilization of prior years' funding. Unused funds awarded prior to FY22 will be considered in the
allocation process.
23 This public record requirement applies to the CAR's response program(s) that utilized the Section 128(a) funding.
-12-
-------
K. Allocation system and process for distribution of funds
EPA regional offices will work with interested CARs to develop their FY23 funding requests. After the
December 16, 2022, request deadline, EPA's regional offices will submit summaries of CAR requests and the
region's allocation recommendations to OBLR.
Regional offices may take multiple factors into account when determining recommended allocation amounts,
including, but not limited to the depth and breadth of the CAR's program, and the scope of the perceived need
for 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.).
EPA expects that funding awarded to CARs will advance the Administration's Justice40 priorities, and EPA
will award this funding in accordance with the Justice40 Initiative,24 which promises to deliver at least 40
percent of the overall benefits from key federal investments to historically overburdened and underserved
communities.
After receipt of the regional recommendations, OBLR will consolidate requests and make final decisions on
the FY23 funding allocation.
EPA anticipates that the FY23 allocation decisions will be finalized, and regional offices will communicate
those final allocation decisions to CARs, in March 2023. CARs will then work with the appropriate EPA
regional office to negotiate final cooperative agreement work plans and budgets. Generally, EPA anticipates
that those final, negotiated cooperative agreements will be awarded in the third or fourth quarter of the federal
fiscal year 2023 (April-September 2023). Because Section 128(a) cooperative agreements are awarded and
administered by EPA regional offices, CARs should contact their regional EPA Project Officer for more
specific timing on cooperative agreement awards.
Unless approved with the award of this cooperative agreement, the CAR must receive written approval by
EPA's Award Official or Grants Management Officer of a final workplan within 60 calendar days following
the date of the award. The CAR must receive documentation of written EPA approval of the final workplan by
EPA's Project Officer or program manager prior to expenditure of federal funds under this cooperative
agreement. Unless the EPA Award Official, or Grants Management Officer grants a waiver, no funds may be
drawn down without an EPA approved final workplan. If the recipient fails to obtain EPA approval of the final
workplan within 60 days of award, EPA may terminate this agreement under 2 CFR ง 200.340.
The general schedule and process is illustrated below (dates are estimates and subject to change):
Oct-Dec Jan-Feb March April-Sept
L. Separate cooperative agreements for the capitalization ofRLFs using Section
128(g) funds gnd guthoritv to mgngge g RLFprogrgm
If a portion of the Section 128(a) grant funds requested will be used to capitalize a RLF for cleanup, pursuant
to section 104(k)(3), two separate cooperative agreements must be awarded (i.e., one for the RLF and one for
24 Justice40 Initiative information can be found at: https://www.whitehouse.gov/briefing-room/statements-
releases/2021/01/27/fact-sheet-president-biden-takes-executive-actions-to-tackle-the-climate-crisis-at-home-and-abroad-create-
iobs-and-restore-scientific-integritv-across-federal-government/. For more information on Environmental Justice, see
https ://www. epa. gov/environmentaliustice.
-13-
-------
non-RLF uses). CARs must, 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").
If a CAR chooses to use its Section 128(a) funds to capitalize a RLF program, the CAR 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 agency within that state or Tribe has the authority to manage the RLF and is willing
to do so.
VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST
I NEW I OK I Y23- PLEASE UEAI) ( AUEITLLYI
A. All CARs requesting FY23 Section 128(a) funds must submit a funding request to the
appropriate EPA regional brownfields contact listed on the last page of this Funding
Guidgnce bv December 16.2022
1. New in FY23: CARs are not required to provide full draft workplans and budgets. Instead, information
can be provided in a format similar to the sample request form in Appendix B of this Funding Guidance
and described in Section VIII.B. below. Note that this is a sample form being provided for convenience, and
CARs who do not use this form will not be penalized for providing the information in a different format.
a. EPA may request additional information, if it is deemed appropriate to fully understand a CAR's
funding request. EPA Regions and CARs should work together to be sure CARs are providing
sufficient information for their funding request and may alter the sample form to memorialize those
communications.
b. While CARs do not need to provide a full draft workplan, there must be enough detail to inform EPA
how the CAR proposes to spend the Section 128(a) funds. Requests that lack sufficient detail may not
be funded.
c. CARs should work, as early as possible, with their EPA regional brownfields contact to ensure that the
funding amount requested can be reasonably spent in one year and the funding request provides
sufficient detail of the planned activities that correspond to the requested funding.
d. Demand for this program is high, and not all requests will be fully awarded. Refer to Section
VI.A. of this Funding Guidance to see how EPA will prioritize the allocation of FY23 Section
128(a) funding.
2. Annual Appropriation and IIJA Funds
a. CARs should work, as early as possible, with their EPA regional brownfields contact to ensure that the
CAR is providing the information that the region needs to make informed allocation recommendations
with respect to annual appropriation and IIJA funds.
i. A CAR's request may include a total amount of funding for their Section 128(a) activities for
the year, which does not specify the funding source (annual appropriation vs. IIJA).
1. Exception: Section 128(a) IIJA funds are not eligible to be included in state and
Tribal Performance Partnership Grants ("PPGs") under 40 CFR Part 35 Subparts A
and B. This restriction is intended to ensure that CARs are able to effectively track,
-14-
-------
account for, and report on the use of Infrastructure Law funding.
2. Therefore, if a CAR has a PPG, it must be made clear in the request what funds are for
the PPG, and whether the CAR is also requesting IIJA funding to be awarded
separately (for example, a CAR may have annual appropriation funds for capacity-
building in their PPG and site-specific work or a specific program-enhancing project
in an IIJA award).
ii. Alternatively, a CAR may expressly state in their request the amount of funding that they are
requesting from annual appropriation vs. IIJA funds (for example, if a CAR already has two
Cooperative Agreements, because they previously received both annual appropriation and
IIJA funds in FY22, and the CAR wants to continue to specify certain funding sources for
particular activities).
b. Once EPA makes final determinations with respect to funding requests and allocation of funds, and
those determinations are communicated to each CAR (anticipated in March 2023), the CAR will work
with their EPA regional brownfields contact to negotiate a cooperative agreement, which includes a
final work plan and budget.
c. If Section 128(a) IIJA funds are allocated to a CAR, they may not be comingled with other sources of
funding, and EPA will award the IIJA funds separately from other grant awards. If a CAR is allocated
both annual appropriation funds and IIJA funds in FY23, the CAR should work closely with the EPA
Project Officer to ensure that the CAR's two FY23 Cooperative Agreement final workplans clearly
delineate what activities will be funded by annual appropriation funds versus IIJA funds to avoid any
overlap or duplication.
3. Programmatic Capability - [Only Include if Specifically Requested by Region]
a. EPA Regions may request demonstration of Programmatic Capability for any new Section 128(a)
funding requesters, or if a returning CAR has experienced key staff turnover or has open
programmatic review findings.
b. The CAR's corresponding EPA Region will notify returning recipients if the information below is
required; if so, it must be included with your funding request.
i. Describe the organizational structure you will utilize to ensure sound program
management to guarantee or confirm timely and successful expenditure of funds, and
completion of all technical, administrative, and financial requirements of the program and
cooperative agreement.
ii. Include a brief description of the key qualifications of staff to manage the response
program and/or the process you will follow to hire staff to manage the response program.
If key staff is already in place, include their roles, expertise, qualifications, and
experience.
iii. Discuss how this response program fits into your current environmental program(s). If you
do not have an environmental program, describe your process to develop, or interest to
start one.
iv. Describe if you have had adverse audit findings. If you had problems with the
administration of any grants or cooperative agreements, describe how you have corrected,
or are correcting, the problems.
-15-
-------
4. How will the requested funding address environmental justice ("EJ")25 concerns in underserved
communities and/or climate change impacts26?
a. A top priority for EPA is uplifting underserved communities and Tribal Nations across the country
that have endured deeply rooted public health and environmental challenges.
b. EPA expects that funding awarded to CARs will advance the Administration's Justice40 priorities.
EPA will award this funding in accordance with the Biden Administration's Justice40 Initiative, which
promises to deliver at least 40 percent of the overall benefits from key federal investments to
disadvantaged communities.
c. If appropriate, provide names and locations of sites, information about the communities, etc., to
support your request.
5. Demonstration of significant utilization of prior years' funding
a. CARs that received Section 128(a) funds prior to FY22 must provide an explanation and justification
of funds (from FY21 or older) that remain in EPA's Financial Data Warehouse as unspent balances, as
of the date of their FY23 funding request.
b. 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.
B. Sample Section 128(a ) Request Form In APPENDIX B
The sample FY23 Section 128(a) request form in APPENDIX B of this Funding Guidance is provided for
convenience, and CARs who do not use this form will not be penalized for providing the information in a
different format.
EPA Regions and CARs should work together to be sure CARs are providing sufficient information for their
funding request and may alter the sample form to memorialize those communications. EPA may request
additional information, if it is deemed appropriate to fully understand a CAR's funding request.
IX. TERMS AND REPORTING
Once EPA makes final determinations with respect to funding requests and allocations of funds, the CAR will work
with the appropriate EPA regional office to negotiate a cooperative agreement, which includes a final work plan and
budget. A cooperative agreement is an assistance agreement that is used when there is substantial federal involvement
with the recipient during the performance of an activity or project. EPA awards cooperative agreements for those
projects in which it expects to have substantial interaction with the CAR throughout the CAR's performance of the
project.
Cooperative agreements between EPA and CARs will include programmatic and administrative terms and conditions
25 The EPA describes environmental justice ("EJ") as the fair treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws,
regulations and policies. Fair treatment means no group of people should bear a disproportionate share of the negative
environmental consequences resulting from industrial, governmental, and commercial operations or policies. For purposes of this
funding guidance, the term "underserved community" refers to a community with environmental justice concerns and/or
vulnerable populations, including low-income citizens, communities of color, and tribal and Indigenous peoples.
26 Goal 1 of EPA's FY 2022-2026 Strategic Plan is "Tackle the Climate Crisis." Climate change exacerbates existing pollution
problems and environmental stressors impacting the nation's land, air, and water and the people who depend on them.
Overburdened and underserved communities and individuals are particularly vulnerable to these impacts, including low-income
communities and communities of color, children, the elderly, Tribes, and indigenous peoples.
-16-
-------
and will outline EPA's substantial involvement with the CAR during the period of performance, including technical
assistance and collaboration on program development and prior approvals for site-specific activities. Each of the
subsections below summarizes the basic terms and conditions and related reporting that will be incorporated into your
cooperative agreement.
Due to the additional budget accounting, tracking, and reporting associated with Infrastructure Law funds, CARs
should anticipate additional reporting requirements associated with cooperative agreements funded with Infrastructure
Law funds. EPA encourages CARs to work with their regional EPA Project Officer to stay informed on the latest
information and potential additional terms and conditions for their cooperative agreements.
A. Progress reports
In accordance with 2 CFR 200.329 and related EPA-specific regulations, CARs must provide progress reports
meeting the terms and conditions of their negotiated cooperative agreement. CAR costs for complying with
reporting requirements are an eligible expense under the Section 128(a) cooperative agreement. At a
minimum, progress reports must include both a narrative discussion and performance data relating to the
CAR's accomplishments and environmental outputs associated with the approved budget and work plan.
Reports must also provide an accounting of Section 128(a) Infrastructure funding. If applicable, the CAR must
include information on activities related to establishing or enhancing the four statutory elements of the CAR's
response program. All CARs must provide information related to establishing or, if already established,
maintaining the public record.
Depending upon the activities included in the CAR's work plan, the CAR will also need to report on the
following:
1. Interim and final progress reports. Reports must prominently display the following information, as
reflected in the current EPA strategic plan: Strategic Plan Goal 6: Safeguard and Revitalize Communities;
Strategic Plan 6.1: Clean Up and Restore Land for Productive Uses and Healthy Communities; and Work
Plan Commitments and Timeframes. EPA's strategic plan can be found on the internet at
https://www.epa.gov/planandbudget/strategicplan.
2. Reporting for Non-MOA states and Tribes. All CARs without a VRP MOA must report activities related to
establishing or enhancing the four elements of its response program. For each element CARs 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 CAR 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, 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 laws; 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 will be
completed; and
narrative description and copy of appropriate documents demonstrating the exercise of oversight and
enforcement authorities by the response program at a brownfield site.
3. Reporting for site-specific assessment or cleanup activities.
-17-
-------
CARs with work plans that include funding for brownfield site assessment or cleanup must input
information required by the OMB-approved Property Profile Form into the ACRES database for each site
assessment and/or and cleanup in compliance with the Programmatic Terms and Conditions of their
CERCLA Section 128(a) cooperative agreements.
In addition, per CERCLA Section 128(a)(2)(C)(ii), CARs must report how they will provide the affected
community with prior notice and opportunity for meaningful participation on proposed cleanup plans and
site activities. For example, EPA expects that CARs will seek public input regarding the priority of sites to
be addressed and to solicit input from local 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.
CARs 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. CARs with work plans that include funding for a
revolving loan fund must include the information required by the terms and conditions for progress
reporting under CERCLA section 104(k)(3) RLF cooperative agreements.
6. Reporting environmental insurance. CARs with work plans that include funding for environmental
insurance must report the:
number and description of insurance policies purchased (e.g., name of insurer, type of
coverage provided, dollar limits of coverage, any buffers or deductibles, category and
identity of insured persons, premium, first dollar or umbrella, whether 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.
7. EPA Regional Office discretion to request additional information
EPA's 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 CARs 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 outputs and outcomes of Section 128(a) funding to states and Tribes.
B. Reporting Program Activity Levels ("PALs")
All CARs must report a summary of the previous federal fiscal year's work (October 1 through September
30), known as Program Activity Levels ("PALs"). CARs must report PALs once annually when the Section
128(a) funding request is due to the appropriate EPA Regional Office in mid-December.
-18-
-------
CARs who receive Section 128(a) Annual Appropriated funds and Section 128(a) Infrastructure funds are not
required to provide two separate PALs reports; their one PALs report should reflect all activities for the period
covering the last federal fiscal year (October 1 - September 30), regardless of whether the activity was funded
by Annual Appropriated funds or Infrastructure funds.
For FY22 PALs reporting (due on December 16, 2022), CARs must report PALs information either directly
in EPA's Assessment. Cleanup and Redevelopment Exchange System ("ACRES") database OR by filling out
the form found at https://www.epa.gov/brownfields/program-activitv-levels-pals-reporting-form and
providing it to the appropriate EPA Regional Office along with the CAR's FY23 funding request.
Beginning with FY23 PALs reporting (which will be due with the FY24 requests in December 2023),
CARs will only be able to provide PALs information directly into ACRES.
For detailed instructions on how to report PALs in ACRES, please see the quick reference guide at
https://www.epa.gov/brownfields/brownfields-grantee-reporting-using-assessment-cleanup-and-
redevelopment-exchange.
C. Reporting of public record
All CARs must report information related to establishing, or if already established, maintaining a public
record, as specified in the terms and conditions of their cooperative agreement and Section VII.I of this
guidance. To meet this reporting requirement, a CAR needs to demonstrate that the public record: a) exists, b)
is up-to-date, and c) is adequate. CARs can refer to an existing public record (e.g., website or other public
database) to meet the public record requirement.
A public record must, as appropriate, include the following information:
1. 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);
whether an institutional control is in place;
type of institutional control(s) 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.
2. 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(s) 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
-19-
-------
size of the site in acres.
D. Updating the State Brownfields and Voluntary Response Programs Report in
ACRES
State CARs must update their State Brownfields and Voluntary Response Programs information in ACRES at
least once a year (and may update more frequently if changes in their response program warrant an additional
update), so that EPA has accurate, up-to-date information to share with the public in the form of an online
State Brownfields and Voluntary Response Program Search. EPA expects that this annual update will occur
when states are already in the ACRES database performing other required ACRES reporting, thereby reducing
the administrative burden.
For detailed instructions on how to update your state brownfields information in ACRES, please see the quick
reference guide at'
E. Cooperative Agreement 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 Unique Entity Identifier ("UEI") Requirements
All EPA funding opportunities (competitive and non-competitive) will begin using UEI-compatible grant
application packages. As explained in the U.S. General Services Administration's ("GSA") Unique Entity
Identifier Update, beginning April 2022 DUNS numbers will no longer be used as a UEI and only the
SAM.gov-created UEI will be accepted.
3. Please see the RAIN-2021-G01 for information about EPA's implementation of the upcoming
Government-wide transition from DUNS to UEI. To learn more about SAM, go to SAM.gov or
https ://www. sam. gov/portal/public/SAM/.
If an applicant fails to comply with these requirements, it will affect their ability to receive the
award.
4. Submitting an application via Grants.gov
a. The request information due on December 16, 2022, should not be submitted via Grants.gov.
The request information should be emailed to the regional contact listed at the end of this guidance.
b. Recipients should submit their final work plan via Grants.gov only after the allocation process is
comvlete and the EPA Regional Project Officer has informed the CAR that it is time to do so.
c. If Section 128(a) funding is allocated to a CAR, it will be provided through a cooperative agreement
award. All cooperative agreement applications for non-competitive assistance agreement awards must be
submitted using Grants.gov. Below is the information that the applicant will use to submit their State and
Tribal Response Program Grant applications viagrants.gov:
CDF A number: 66.817
Funding Opportunity Number (FON): EPA-CEP-02
To learn more about the Grants.gov submission requirements, go to
https ://www. epa. gov/grants/how-appl v-grants.
-20-
-------
d. When the EPA Project Officer informs you to submit your final work plan in Grants.gov, it must be
submitted using the "Workspace" feature. Information on the Workspace feature can be found at
Grants.gov Workspace Overview Page.
5. Use of funds
A CAR that receives an award under this Funding Guidance 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 cooperative assistance agreement will include terms
and conditions related to this requirement.
-21-
-------
REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS
REGION
STATE
TRIBAL
l
CT, ME, MA, NH,
RI, VT
AmyJean McKeown
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 02109-3912
Phone (617) 918-1248 Fax (617) 918-1294
mc k e o \ v n. a m v i e a n Vv ,c oa. sov
AmyJean McKeown
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 02109-3912
Phone (617) 918-1248 Fax (617) 918-1294
mckeo wn. amvi canf/coa. sov
2
NJ, NY, PR, VI
Terry Wesley
290 Broadway, 25th Floor
New York, NY 10007-1866
Phone (212) 637-5027
weslev.terrv(@,eoa. sov
Terry Wesley
290 Broadway, 25th Floor
New York, NY 10007-1866
Phone (212) 637-5027
weslcv. tc rrv a eoa. so v
3
DE, DC, MD, PA,
VA, WV
Mike Taurino
1650 Arch Street (3HS51)
Philadelphia, PA 19103
Phone (215) 814-3371 Fax (215) 814-3274
tauri no.michaclir/CDa. sov
Mike Taurino
1650 Arch Street (3HS51)
Philadelphia, PA 19103
Phone (215) 814-3371 Fax (215) 814-3274
taurino. michaclf/coa. sov
4
AL, FL, GA, KY,
MS, NC, SC, TN
Cindy Nolan
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta," GA 30303-8960
Phone (404) 562-8425 Fax (404) 562-8788
nolan.cindvi(@,et>a. sov
Cindy Nolan
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta," GA 30303-8909
Phone (404) 562-8425 Fax (404) 562-8788
nolan.cindvi (@,eoa. sov
5
IL, IN, MI, MN, OH,
WI
Keary Cragan
77 West Jackson Boulevard (SB-5J)
Chicago, IL 60604-3507
Phone (312) 353-5669 Fax (312) 692-2161
crasan.kearv(@,eoa. sov
Rosita Clarke
77 West Jackson Boulevard (SB-5J)
Chicago, IL 60604-3507
Phone (312) 886-7251 Fax (312) 697-2075
c 1 a rk c. ro s i ta a e oa. so v
6
AR, LA, NM, OK,
TX
Ana Esquivel
1201 Elm Street, Suite 500
Dallas, Texas 75270-2102
Phone (214) 665-3163 Fax (214) 665-6660
esauivel.ana(@,et>a.sov
Elizabeth Reyes
1201 Elm Street, Suite 500
Dallas, Texas 75270-2102
Phone (214) 665-2194 Fax (214) 665-6660
reves.elizabeth@et>a. sov
7
IA, KS, MO, NE
Susan Klein
11201 Renner Boulevard (LCRD/BSPR)
Lenexa KS 66219
Phone (913) 551-7786
klein. susan(@et>a. sov
Jennifer Morris
11201 Renner Boulevard ((LCRD/BSPR)
Lenexa KS 66219
Phone (913) 551-7341
mo rri s. i c n nifc ra eoa. so v
8
CO, MT, ND, SD,
UT, WY
Melisa Devincenzi
1595 Wynkoop Street (LCRD-BR)
Denver, CO 80202-1129
Phone (303) 312-6377
devincenzi. melisa(@,et>a. sov
Ted Lanzano
1595 Wynkoop Street (LCRD-BR)
Denver, CO 80202-1129
Phone (303) 312-6596
lanzano .tcdf/coa. sov
9
AZ, CA, HI, NY, AS,
GU, MP
Noemi Emeric-Ford
600 Wilshire Blvd, Suite 940
Los Angeles, CA 90017
Phone (213)244-1821
c l lie ri c - fo rd. no e l n iV/c oa. sov
Michelle Baker
75 Hawthorne Street
San Francisco, CA 94105
Phone (415) 972-3206
bakcr.michcllcir/CDa.soY
10
AK, ID, OR, WA
Madison Sanders-Curry
1200 Sixth Ave, Suite 155 (mail code 15-H04)
Seattle, WA 98101
Phone (206) 553-1889 Fax (206) 553-8581
sanders-currv.madison(ฎer)a.sov
Madison Sanders-Curry
1200 Sixth Ave, Suite 155 (mail code 15-H04)
Seattle, WA 98101
Phone (206) 553-1889 Fax (206) 553-8581
sandcrs-curry. madisonf/coa. sov
-22-
-------
APPENDIX A: FUNDING GUIDANCE FOR CERCLA SECTION 128(a)
TECHNICAL ASSISTANCE GRANTS ("TAGs")
Section 128(a)(l)(B)(ii)(III) of the Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA"), as amended, authorizes a noncompetitive $1.5 million27 technical assistance grant
("Section 128(a) TAG") program to assist small communities,28 Indian tribes,29 rural areas, or
disadvantaged areas30 to carry out activities outlined in CERCLA Section 104(k)(7) (e.g. providing training,
research, and technical assistance to individuals and organizations to facilitate the inventory of brownfields
sites, site assessments, remediation of brownfield sites, community involvement, or site preparation).
Per the statute, the maximum amount of funding allowed per grant is $20,000.31 These funds may not be
used to augment an existing CERCLA 128(a) State and Tribal Program and may not be placed in
Performance Partnership Grants ("PPGs"). Section 128(a) TAG are funded by annual appropriations, not
IIJ A funds.
Cooperative agreement recipients ("CARs") with active CERCLA Section 128(a) grants who are
requesting funds in FY23 are eligible to submit requests for up to three TAGs of $20,000 each to assist
a small community, Indian tribe, rural area, or disadvantaged area.
Multiple eligible communities may be assisted by one Section 128(a) TAG. EPA's goal is that these TAGs
benefit as many underserved communities as possible, therefore, if a CAR requests more than one Section
128(a) TAG, each $20,000 grant should be to assist a different eligible beneficiary or different project. CARs
should work with their EPA regional contact to discuss eligible beneficiaries and activities for these TAGs.
Once approved, the Section 128(a) TAGs may be awarded in the same Cooperative Agreement as the CAR's
128(a) annual appropriation allocation, as authorized by CERCLA Section 128(a)(l)(B)(iii)(III), with
appropriate controls in place to ensure the accurate drawdown of funds for the purposes of each grant.
For additional information on Section 128(a) TAG, including examples of uses for the funds, see the Section
128(a) TAG fact sheet on the Brownfields website, and the ASTSWMO Section 128(a) TAG StorvMap.
Requests will be considered based on the following:
readiness of the recipient and community to complete the project within a year of award,
the recipient is in good standing with their current CERCLA Section 128(a) grant,
the recipient has documented support from the community benefiting from this grant, and
the recipient adequately responds to the criteria listed below.
Each request should be no more than 2-3 pages and should include the following:
1. the amount of funding requested,
2. a description of the target community and how it meets the definition of a small community, Indian
tribe, rural area, or disadvantaged area,
27 If EPA receives over $1.5 million in requests, it will evaluate projects based on criteria listed in Appendix A. EPA will prioritize
fully funding high quality projects until the appropriation cap is reached.
28 CERCLA Section 128(a)(l)(B)(iv)(II) defines Small Community as a community with a population of not more than 15,000
individuals, as determined by the President based on the latest available decennial census.
29 CERCLA Section 101(36) defines Indian Tribe.
30 CERCLA Section 128(a)(l)(B)(iv)(I) defines Disadvantaged Area as a community with an annual median household income
that is less than 80 percent of the statewide annual median household income, as determined by the President based on the latest
available decennial census
31 CERCLA Section 128(a)(1)(B)(iii)(II).
-23-
-------
3. a description of the proposed project, including an explanation of key activities and how the
proposed project will further brownfields reuse,
4. the expected outcomes and timeline to complete the project,
5. how/who will be conducting the activities (e.g., state, tribe, contractor)32
6. if additional resources are necessary to complete the project, please explain how you will secure
them,
7. an explanation of why existing state or tribal funding is inadequate to complete the proposed project,
8. a demonstration that the community supports the state or tribe receiving the grant; this may be a
separate letter attached to the submission, and
9. if the CAR has previously received Section 128(a) TAG, include a brief update on the previous
project's status or successful completion.
32 If a CAR plans to use a contractor or provide a subaward, the CAR will have to follow EPA's general procurement terms and
conditions, as well as any relevant state or tribal requirements.
-24-
-------
APPENDIX B: SAMPLE SECTION 128(a) FUNDING REQUEST FORM
The sample form below for requesting FY23 Section 128(a) funding is provided for convenience, and
CARs who do not use this form will not be penalized for providing the information in a different
format.
EPA Regions and CARs should work together to be sure CARs are providing sufficient information for
their funding request and may alter this sample form to memorialize those communications. EPA may
request additional information, if it is deemed appropriate to fully understand a CAR's funding request.
FUNDING REQUEST
CERCLA Section 128(a) State and Tribal Response Program
CFDA: 66.817
Federal Fiscal Year (FY) 2023
Period of Performance:
Total Amount Requested:
Performance Partnership Grant? Yes ~ No ~ If ves. nrovide amount of annual annronriation funding for PPG
and amount for IIJA funding award:
Point of Contact:
State or Tribal Response Program to which the funds will be applied:
Overall basis for request:
[CARs who do not have a MOA with EPA: Include an explanation of how your program includes, or is taking
reasonable steps to include, the four elements described in Section V. As noted in Section VII.H. above, this
demonstration of the four elements will be part of the final work plan negotiation process.]
How will the requested funding address EJ concerns in underserved communities and/or climate change
impacts. If appropriate, provide names and locations of sites, information about the communities, etc., to
support your request.
Demonstration of significant utilization of prior years' funding (FY21 or older):
[CARs that received Section 128(a) funds prior to FY22 must provide an explanation and justification of funds (from
FY21 or older) that remain in EPA's Financial Data Warehouse as unspent balances, as of the date of their FY23
funding request.]
Programmatic Capability - [Only Include if Specifically Requested by Region]:
-25-
-------
FUNDING USE
FY23
REQUEST
DETAILED SUMMARY
OF INTENDED USE
EXAMPLE ACTIVITIES FOR
REFERENCE. THESE LISTS ARE
NOT EXHAUSTIVE AND MAY
APPLY TO MORE THAN ONE
CATEGORY
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.
$xx,xxx
$xx,xxx
$xx,xxx
$xx,xxx
1. Examples:
inventory and prioritize brownfields
sites
develop or improve Institutional
Controls/Engineering Controls
tracking and SOPs
2. Examples:
develop/enhance ordinances,
regulations, and procedures for
response programs
3. Examples:
develop a community involvement
process
build up community outreach and
participation
issue public notices of site activities
develop a process to seek public input
from local communities, especially
potential enviromnental 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
digitize response program records for
easier public access
4. Examples:
develop/update cleanup standards
review cleanup plans and verify
completed actions
build the capacity and process to
verify that an assessment or cleanup
was done properly and include
documentation in the public record
Establish and
maintain the public
record
$xx,xxx
Examples:
maintain public record
create web site for public record
-26-
-------
disseminate public information on
how to access the public record
Enhance the
response program
$xx,xxx
Site-specific
activities
[CAR may conduct
assessments or
cleanups at sites that
meet the definition of
a Brownfield site at
CERCLA Section
101(39)].
[CARs should
describe whether, and
if so, how, site-
specific work will
address EJ concerns
in underserved
communities and/or
climate change
impacts.]
$xx,xxx
[Amount
requested for
site-specific
assessments and
cleanups may not
exceed 75% of
the total amount
of Section 128(a)
funding awarded
to the CAR
during FY 2023.
Oversight of
assessment and
cleanup activities
performed by
responsible
parties (other
than the state or
tribe) does not
count toward the
75% limit. The
75%> cap also
Examples:
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
Brownfields mentoring and training /
succession-planning
develop or improve electronic
document management system
[Even if a response program has an
MOA with EPA, examples provided
above in the four elements section may
also be helpful or relevant if those
aspects of the program need enhancing.]
Examples:
perform site assessments and
cleanups at Brownfield sites
develop QAPPs
establish eligibility of target sites
prepare Property Profile Forms/input
data into ACRES database for these
sites
-27-
-------
Total funding
does not include
personnel or
supplies/equipme
nt purchased in
support of site-
specific work.]
sxxx,xxx
-28-
------- |