DECISION MEMORANDUM (DRAFT FOR PUBLIC COMMENT)

SUBJECT: Adjustment Period Waiver of Section 70914(a) of P L. 117-58, Buy America,
Build America Act, 2021 for Brownfields and Superfund Cooperative Agreements

FROM: TBD

TO:

The Environmental Protection Agency (EPA) Office of Land and Emergency Management
(OLEM) (Office of Superfund Remediation and Technology Innovation (OSRTI) and Office of
Brownfields and Land Revitalization (OBLR)) is seeking comment on a six-month Adjustment
Period Waiver from the Buy America, Build America Act (BABA) requirements, i.e., iron and
steel, manufactured products, and construction materials, in section 70914 of the Infrastructure
Investment and Jobs Act (IIJA) Public Law 117-58. This adjustment period is critical to ensure
that Superfund and Brownfields cleanup projects conducted by state, tribal, local, and non-profit
cooperative agreements recipients sustain progress in communities across the country as we
transition to best support the goals of BAB A. Ensuring that EPA presents a smooth transition to
BAB A implementation, while initially delayed, will create dividends when delays are avoided,
grantee questions are answered quickly, and support is provided that encourages future
engagement. We are particularly interested in receiving comments on whether the waiver should
apply retroactively to all funding obligated for Superfund and Brownfields financial assistance
agreements on or after May 14, 2022.

Please submit comments to BABA-OLEM@epa.gov.

Introduction

In November 2021, Congress passed, and the President signed, the IIJA which included BAB A.
This is a transformational opportunity to build a resilient supply chain and manufacturing base
for critical products here in the United States and will catalyze new and long-term investment in
good-paying American manufacturing jobs and businesses. Consistent with the policy direction
of Executive Order 14005: Ensuring the Future is Made in All of America by All of America's
Workers, section 70914 of IIJA establishes government-wide Buy America conditions on all
federally funded infrastructure projects funded after May 14, 2022.

As required by section 70913 of the IIJA, EPA determined that BAB A applies to certain
Superfund cooperative agreements awarded under section 104(d) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) and certain Brownfields
cooperative agreements awarded under sections 104(k) and 128(a) of CERCLA (Superfund and
Brownfields Cooperative Agreements). EPA efforts to implement BAB A will help cultivate the
domestic manufacturing base for a range of products. This will take time and flexibility to ensure
that EPA programs, like Superfund and Brownfields, are appropriately and effectively
implementing these new requirements, which includes educating and supporting the state, local,
tribal, and non-profit recipients as they transition to supporting BAB A in their federally funded
activities.

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BABA Adjustment Period Waiver

The Office of Management and Budget's April 18, 2022, memorandum, "Initial Implementation
Guidance on Application of Buy America Preference in Federal Financial Assistance Programs
for Infrastructure" (M-22-11) describes several types of authorized public interest
implementation waivers, "... time-limited waivers to allow recipients and agencies to transition
to new rules and processes." With this memorandum, EPA issues a six-month adjustment period
waiver to delay the implementation of the BABA requirements for Superfund and Brownfields
Cooperative Agreements. While BABA applies to certain EPA funded Superfund and
Brownfields cleanup activities, the scope of that applicability needs additional clarification, as
does the degree to which Superfund and Brownfields cleanup activities create opportunities for
domestic manufacturing.

To avoid delays in site cleanup that could occur if waivers were determined on a site-by-site or
project by project basis, EPA will use this time to determine, among other things, the
applicability of BABA to sites that are not publicly owned or do not clearly meet the definition
of infrastructure and the applicability to equipment or materials brought to a site and removed
before completion, e.g., a pump that will be removed prior to completion of the cleanup. Once
clarification of applicability is obtained, EPA will then need to develop education materials,
training, and other support materials for our recipients, as well as training and processes for EPA
personnel. As part of this process, EPA will also need to consider the applicability of other
waivers, e.g., de minimis, small grant, etc, to projects or cooperative agreements.

A critical part of EPA's cleanup programs is to ensure that residents living in communities
historically affected by economic disinvestment, health disparities, and environmental
contamination have an opportunity to benefit from cleanup and redevelopment. EPA's cleanup
programs are committed to helping communities revitalize contaminated properties, mitigate
potential health risks, and restore economic vitality. EPA cooperative agreement funding plays a
significant role in the cleanup and revitalization process. To ensure that we continue to support
communities, EPA needs to consider whether application of BABA places a burden on rural or
disadvantaged communities that may outweigh the potential benefits to domestic manufacturing.
To do so, during this adjustment period, EPA will coordinate with our state, tribal, local, and
non-profit cooperative agreement recipients and additional stakeholders, including the
contracting community, to gather information on the types of products covered by BABA and
the degree to which they are manufactured domestically. This will allow EPA to create tools that
may support a streamlined process or demonstrate that further waivers may be needed for equity
concerns.

In addition, information gathered will help determine whether there are opportunities to expand
domestic manufacturing of materials used during the cleanup of Superfund and Brownfields
sites. For example, in addition to iron and steel products commonly used in construction, both
Superfund and Brownfields cleanup may use PVC piping, geo-textiles, vapor intrusion
mitigation and other abatement systems,

Anticipated Program Impacts Absent a Waiver

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While BAB A potentially impacts all Superfund and Brownfields cleanup cooperative
agreements, including those awarded with Bipartisan Infrastructure Law (BIL) funds, annual
appropriations, and, for Superfund, Special Account and tax resources, it is expected to be more
applicable to those remedies that involve engineering controls or other more permanent
placement of materials. For example, while the average annual appropriation for Brownfields is
approximately $158.0 Million, the average annual funding level for cleanup and revolving loan
fund cooperative agreements is approximately $28.0 Million or approximately 18% of the
average annual appropriation]. The level of cooperative agreement funding that is likely to be
covered by BABA is an even smaller subset of this funding. For Superfund, the annual average
appropriation is $579.8M, but the average cooperative agreement funding to states, tribes, and
local governments is $82M. The level of cooperative agreement funding that is likely to be
covered by BABA would be an even smaller subset of this level.

For Brownfields cooperative agreements, it is our estimation that immediate implementation of
the requirements would cause a burden on our most vulnerable communities, delaying cleanups
and exacerbating environmental concerns. There are dozens of Brownfields Cleanup and
Revolving Loan Fund (RLF) cooperative agreement recipients that submitted applications in
October 2021, before the BABA law was passed. Cleanup applicants developed budget proposals
and were evaluated on those proposals, prior to the issuance of BABA and OMB guidance,
without contemplating the impact of future domestic sourcing requirements such as those
included in BABA. Over 80 percent of applicants that receive Brownfields cleanup cooperative
agreements meet the program's pilot definition of a Justice40 community. And a significant
portion of the remaining cleanup projects are in rural communities. There is concern that
communities would suffer from any implementation delays while the program waits for
BABAA-related clarifications. States and tribes have been using a portion of their CERCLA 128
response program funds to cleanup brownfield sites under long-term continuing environmental
program grants and they will need to adjust their procurement procedures to take BABA into
account. The potential for delays in project execution would prevent recipients from effectively
carrying out the EPA funded activity in a timely manner and possibly exacerbate risks to human
health and the environment.

For Superfund cooperative agreements, concerns are similar to Brownfields. There are several
Superfund cooperative agreements in the review process now to award IIJA funds to state, tribal
and local governments to clean up sites on the Superfund National Priorities List (NPL). These
cooperative agreements will fund ongoing remedial action projects and initiate new remedial
action projects that cannot be delayed while the program waits for BABA-related clarification.
Remedial designs for cleanup projects were started or completed prior to the issuance of BABA
and OMB guidance without contemplating the impact of future domestic sourcing requirements
such as those included in BABA. EPA and cooperative agreement recipients may have to
reevaluate design alternatives and potentially investigate potential domestic products, redesign
elements of projects, revise engineering drawings and bid specifications, and approve complete
redesigns, thereby delaying the initiation or continuation of construction, increasing project
costs, and impacting schedules. If EPA delays funding these cooperative agreements, EPA may
be required to shut down site cleanups, secure sites, and demobilize personnel and equipment,
incurring additional costs, slowing down important cleanup, and impacting communities. The
potential for delays in project execution would prevent recipients from effectively carrying out

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the EPA funded activity in a timely manner and possibly exacerbate risks to human health and
the environment.

Additional Information Required Prior to BABA Implementation

EPA is proposing this waiver as an important tool to fill our knowledge gaps and implement the
Buy American provisions in the most efficient manner to promote investment in our domestic
manufacturing base, strengthen critical supply chains, and position U.S. workers and businesses
to compete and lead globally in the 21st century. EPA understands that advancing Made in
America objectives is a long game and the Agency plans to move forward with sufficient
information to implement the new requirements in a way that maximizes coordination and
collaboration to support long-term investments in domestic production. The waiver period will
provide EPA with sufficient time to work collaboratively with other federal agencies and learn
from existing processes established for domestic preference for iron and steel. EPA is proposing
to use the waiver time to leverage the lessons learned, templates, guidance, and policies and
procedures developed by our Office of Water and other federal agencies that have long applied
domestic preference to iron and steel. We are also looking to leverage the work OMB's Made in
America Office is doing to identify domestic sources for these materials. Importantly, EPA is
proposing to use the six-month period to work directly with our Superfund and Brownfields
cooperative agreement recipients to fill knowledge gaps and understand the common needs for
iron and steel products, construction materials and manufactured products.

EPA will work directly with recipients to identify and document the availability of required
goods, including any specific supply chain challenges experienced. EPA will use the information
gained from close engagement with other federal agencies, its cooperative agreement recipients,
and OMB to determine the appropriate scope of additional waivers that may be necessary to
ensure projects stay on time, on task and on budget. EPA will ensure that any waivers issued
under the Act are balanced, practical, and an efficient tool to promote both American
manufacturing and timely infrastructure investment. Furthermore, EPA is committed to building
our internal capacity and the capacity of our external stakeholders, including providing training
to subrecipients and contractors in these requirements. This adjustment period will give
cooperative recipients and subrecipients, a large portion of which are small, local, or tribal
governmental entities, time to put in place their own policies, procedures, and systems to collect
and submit required information, identify needs for project- or product-specific waivers; increase
staff capacity to handle the increased workload; educate construction contractors about these
requirements; and participate in EPA-led working groups to guide BABA implementation.

More specifically, the Superfund and Brownfields programs intend to use the adjustment period
to conduct a thorough analysis of BABA applicability to different types of projects, better
understand the scope of covered projects, and develop more narrowly tailored waivers, as
needed, to meet program requirements consistent with statute and OMB guidance.

For example, both programs need to obtain greater clarity on which projects constitute
"infrastructure." According to the April 2022 guidance:

When determining if a particular construction project. . . constitutes "infrastructure, "

agencies should consider whether the project will serve a public function, including whether

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the project is publicly owned and operated, privately operated on behalf of the public, or is a
place of public accommodation, as opposed to a project that is privately owned and not open
to the public.

While the Superfund and Brownfields programs may award funding for projects that meet the
infrastructure definition, most Superfund cleanup projects and many Brownfields projects occur
on private land or primarily impact a private residence or business, and it is unclear whether they
serve a "public function" in the context of the BABA requirements. For example, there could be
a Superfund project involving construction of a water line that connects to a private residence or
a Brownfields project where the city owns a site for the purposes of remediating it with
brownfields funding in order prepare it for sale to a developer for development. This end use will
lead to improvements to real property that is privately owned. In other instances, a state or tribal
recipient may clean up a site owned by a private party in order to effectively respond to releases
or threatened releases of hazardous substances and contaminants. Often, the ultimate end use of
the site that is cleaned up is not known at the time of application or award and may not be reused
for months or years after the federally funded cleanup occurs.

The Superfund and Brownfields programs need to understand which projects meet the BABA
infrastructure and public purpose requirements and involve use of the materials covered under
BABA. The programs need time to work with its regional counterparts to look at recent projects
to determine whether BABAA covered materials and projects are occurring. The national
programs are in the process of awarding IIJA funding for response activities to states, tribes,
local governments, and non-profits (Brownfields).. EPA needs time to analyze the work to have
a more complete understanding of the projects and materials planned for use. EPA has convened
a group of experts and has initiated work to analyze prior and pending cooperative agreements
that will be awarded in the coming months.

EPA will also be working with OMB as refinements are made to definitions related to
manufactured goods and construction materials. Use of this information will help inform the
impact both the Superfund and Brownfields programs have on domestic manufacturing. For
example, with approximately 100 Brownfields cleanups a year, we do not anticipate the funding
will have a significant impact on any supply chains of manufactured products that may be
permanently incorporated into the final clean up, but data collected will help inform our
information and potentially highlight opportunities.

Lastly, both programs require time to develop guidance and training materials for BABA
implementation for both cooperative agreement recipients and EPA project officers, as well as
waiver processes that will expeditiously support situations where a waiver may be needed. We
need to develop protocols for recipients to document, where appropriate, that domestic materials
were purchased or that the project did not fit within the BABA requirements. With recipients
having a wide range of experience in managing federal funding, proper support is critical to
ensuring success of funded projects. Ensuring that EPA presents a smooth transition to BABA
implementation, while initially delayed, will create dividends when delays are avoided, grantee
questions are answered quickly, and support is provided that encourages future engagement.

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In addition, our cooperative agreement recipients may also need time to alter their own
procurement processes to be able to comply with the BABA requirements. They will need to
work with our regional offices to understand the new requirements and then develop their own
strategies for how they will comply.

EPA has and will continue to engage with our cooperative agreement recipients, the contracting
community, and other stakeholders during the adjustment time period. For example, during the
Brownfields Conference in August, EPA staff will be hosting two sessions with cooperative
recipients and vendors to discuss BABA implementation and gather information on potential
products that may present a challenge to meeting the BABA requirements. EPA staff are meeting
with state representatives in August at the Association of State and Territorial Solid Waste
Management Officials CERCLA and Brownfields Subcommittee Symposium and have
established ongoing discussions with volunteer groups of recipients, e.g., existing Brownfields
Revolving Loan Fund recipients. EPA is also engaging with our Office of Acquisition Solutions,
the lead for Made in America as it relates to contracting efforts. For Superfund, the vast majority
of federal funding will be expended through contracts and Interagency Agreements. Because
cleanups and the materials used will be very similar regardless of whether or not the funds are
expended by a cooperative agreement recipient or a contractor, it will be critical that EPA
develop a process that best aligns the waiver processes. EPA has initiated a review of the
contracting waiver process and will continue this review to help refine the full suite of materials
that may benefit from domestic manufacturing.

Finally, as directed in the April 2022 OMB guidance EPA needs to consider whether
international obligations impact BABA applicability and additional time is needed to assess this
factor.

The Agency does not expect the conclusion of this waiver to have any impact on industry and
there is no cost advantage of a foreign-sourced product that is the result of the use of dumped
items.

Waiver Decision

Section 70914(b)(1) of the IIJA authorizes the Administrator to waive the requirements of
BABA if implementation would be inconsistent with the public interest. Due to the critical need
to award Superfund and Brownfields cooperative agreements in a timely and cost-effective
manner, delaying BABA requirements for eligible projects until EPA is prepared for
implementation is in the public's interest. This request encompasses all funding obligated for
Superfund and Brownfields cooperative agreements during the waiver period even if the funds
are expended by recipients after the waiver period expires. As OMB's April 2022 guidance
advises ". . .public interest waivers may be needed for awards and amendments made on or after
May 14, 2022, where budgets for purchase of covered materials have already been agreed upon
(including if materials have been ordered and construction has begun)."

This waiver will apply to Superfund and Brownfields cooperative agreements and funded
amendments awarded six months from the date of signature of the final waiver.

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Public Comment

The Agency is particularly interested in public comments on whether retroactive application of
the adjustment period waiver is needed for those Superfund and Brownfields cooperative
agreements awarded or amended to add funds on or after May 14, 2022, up until the effective
date of the waiver. Absent retroactive application of the adjustment period waiver, recipients of
funding that was obligated prior to the effective date of the waiver (new awards and funded
amendments) will need to apply to EPA for case-by-case waivers if they were unable to procure
BAB A compliant products for infrastructure projects funded all or in part with EPA funds
subject to BAB A requirements.

If you have any questions concerning the contents of this memorandum, please contact Jennifer
Wilbur in EPA's Office of Land and Emergency Management at wilbur.iennifer@epa.gov.

Please submit comments on this draft waiver to BABA-OLEM@epa.gov.

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