Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding Guidance for State and Tribal Response Programs, 69637-69644 [E8-27473]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Notices]
[Pages 69637-69644]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27473]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8742-3]


Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding 
Guidance for State and Tribal Response Programs

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept 
requests, from December 1, 2008 through January 31, 2009, for grants to 
supplement State and Tribal Response Programs. This notice provides 
guidance on eligibility for funding, use of funding, grant mechanisms 
and process for awarding funding, the allocation system for 
distribution of funding, and terms and reporting under these grants. 
EPA has consulted with state and tribal officials in developing this 
guidance.
    The primary goal of this funding is to ensure that state and tribal 
response programs include, or are taking reasonable steps to include, 
certain elements and a public record. Another goal is to provide 
funding for other activities that increase the number of response 
actions conducted or overseen by a state or tribal response program. 
This funding is not intended to supplant current state or tribal 
funding for their response programs. Instead, it is to supplement their 
funding to increase their response capacity.
    For fiscal year 2009, EPA will consider funding requests up to a 
maximum of $1.5 million per state or tribe. Subject to the availability 
of funds, EPA regional personnel will be available to provide technical 
assistance to states and tribes as they apply for and carry out these 
grants.

DATES: This action is effective as of December 1, 2008. EPA expects to 
make non-competitive grant awards to states and tribes which apply 
during fiscal year 2009.

ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA 
Headquarters can be located at https://www.epa.gov/brownfields.

FOR FURTHER INFORMATION CONTACT: The U.S. EPA's Office of Solid Waste 
and Emergency Response, Office of Brownfields and Land Revitalization, 
(202) 566-2777.

SUPPLEMENTARY INFORMATION: Section 128(a) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), as 
amended, authorizes a noncompetitive $50 million grant program to 
establish and enhance state \1\ and tribal \2\ response programs. 
Generally, these response programs address the assessment, cleanup, and 
redevelopment of brownfields sites and other sites with actual or 
perceived contamination. Section 128(a) cooperative agreements are 
awarded and administered by the U.S. Environmental Protection Agency 
(EPA) regional offices. This document provides guidance that will 
enable states and tribes to apply for and use Fiscal Year 2009 Section 
128(a) funds.
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    \1\ The term ``state'' is defined in this document as defined in 
CERCLA Section 101(27).
    \2\ The term ``Indian tribe'' is defined in this document as it 
is defined in CERCLA Section 101(36). Intertribal consortia, as 
defined in the Federal Register Notice at 67 FR 67181, No. 4, 2002, 
are also eligible for funding under CERCLA 128(a).
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    Requests for funding will be accepted from December 1, 2008 through 
January 31, 2009. Information required to be submitted with the funding 
request is on pages 13-15. States or tribes that fail to submit the 
request in the appropriate manner may forfeit their ability to request 
funds. First time requestors are strongly encouraged to contact their 
Regional Brownfields Coordinator (see page 19) prior to submitting 
their funding request.
    Requests submitted by the January 31, 2009 request deadline are 
preliminary; final cooperative agreement work plans and budgets will be 
negotiated with the regional offices once final allocation 
determinations are made. As in prior years, EPA will place special 
emphasis on reviewing a cooperative agreement recipients' use of prior 
128(a) funding in making allocation decisions.
    States and tribes requesting funds are required to provide a Dun 
and Bradstreet Data Universal Numbering System (DUNS) number with their 
final cooperative agreement package. For more information, please go to 
www.grants.gov.
    The Catalogue of Federal Domestic Assistance entry for the Section 
128(a) State and Tribal Response Program cooperative agreements is 
66.817. This grant program is eligible to be included in state and 
tribal Performance Partnership Grants.

Background

    State and tribal response programs oversee assessment and cleanup 
activities at the majority of brownfields sites across the country. The 
depth and breadth of state and tribal response programs vary. Some 
focus on CERCLA related activities, while others are multi-faceted, for 
example, addressing sites regulated by both CERCLA and the Resource 
Conservation and Recovery Act (RCRA). Many state programs also offer 
accompanying financial incentive programs to spur cleanup and 
redevelopment. In passing Section 128(a),\3\ Congress recognized the 
accomplishments of state and tribal response programs in cleaning up 
and redeveloping brownfields sites. Section 128(a) also provides EPA 
with an opportunity to strengthen its partnership with states and 
tribes.
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    \3\ Section 128(a) was added to CERCLA in 2002 by the Small 
Business Liability Relief and Brownfields Revitalization Act 
(Brownfield Amendments).
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    The primary goal of this funding is to ensure that state and tribal 
response programs include, or are taking reasonable steps to include, 
certain elements and a ``public record.'' The secondary goal is to 
provide funding for other activities that increase the number of 
response actions conducted or overseen by a state or tribal response 
program. This funding is not intended to supplant current state or 
tribal funding for their response programs. Instead, it is to 
supplement their funding to increase their response program's capacity.
    Subject to the availability of funds, EPA regional personnel will 
be available to provide technical assistance to states and tribes as 
they apply for and carry out Section 128(a) cooperative agreements.

Eligibility for Funding

    To be eligible for funding under CERCLA Section 128(a), a state or 
tribe must:
    Demonstrate that its response program includes, or is taking 
reasonable steps to include, the four elements of a response program, 
described below; or (b) be a party to voluntary response program 
Memorandum of Agreement (VRP MOA) \4\ with EPA;
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    \4\ The legislative history of the Brownfields Amendments 
indicates that Congress intended to encourage states and tribes to 
enter into MOAs for their voluntary response programs. States or 
tribes that are parties to VRP MOAs and that maintain and make 
available a public record are automatically eligible for Section 
128(a) funding.
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And

    Maintain and make available to the public a record of sites at 
which

[[Page 69638]]

response actions have been completed in the previous year and are 
planned to be addressed in the upcoming year, see CERCLA Sec.  
128(b)(1)(C).

Matching Funds/Cost-Share

    States and tribes are not required to provide matching funds for 
cooperative agreements awarded under Section 128(a), with the exception 
of the Section 128(a) funds a state or tribe uses to capitalize a 
Brownfields Revolving Loan Fund under CERCLA 104(k)(3).

The Four Elements--Section 128(a)

    Section 128(a) recipients that do not have a VRP MOA with EPA must 
demonstrate that their response program includes, or is taking 
reasonable steps to include, the four elements. Achievement of the four 
elements should be viewed as a priority. Section 128(a) authorizes 
funding for activities necessary to establish and enhance the four 
elements and to establish and maintain the public record requirement.
    Generally, the four elements are:
    Timely survey and inventory of brownfields sites in state or tribal 
land. EPA's goal in funding activities under this element is to enable 
the state or tribe to establish or enhance a system or process that 
will provide a reasonable estimate of the number, likely locations, and 
the general characteristics of brownfields sites in their state or 
tribal lands.
    EPA recognizes the varied scope of state and tribal response 
programs and will not require states and tribes to develop a ``list'' 
of brownfields sites. However, at a minimum, the state or tribe should 
develop and/or maintain a system or process that can provide a 
reasonable estimate of the number, likely location, and general 
characteristics of brownfields sites within their state or tribal 
lands.
    Given funding limitations, EPA will negotiate work plans with 
states and tribes to achieve this goal efficiently and effectively, and 
within a realistic time frame. For example, many of EPA's Brownfields 
Assessment cooperative agreement recipients conduct inventories of 
brownfields sites in their communities or jurisdictions. EPA encourages 
states and tribes to work with these cooperative agreement recipients 
to obtain the information that they have gathered and include it in 
their survey and inventory.
    Oversight and enforcement authorities or other mechanisms and 
resources. EPA's goal in funding activities under this element is to 
have state and tribal response programs that include oversight and 
enforcement authorities or other mechanisms, and resources that are 
adequate to ensure that:
    A response action will protect human health and the environment and 
be conducted in accordance with applicable federal and state law; and
    The necessary response activities are completed if the person 
conducting the response activities fails to complete the necessary 
response activities (this includes operation and maintenance or long-
term monitoring activities).
    Mechanisms and resources to provide meaningful opportunities for 
public participation.\5\ EPA's goal in funding activities under this 
element is to have states and tribes include in their response program 
mechanisms and resources for public participation, including, at a 
minimum:
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    \5\ States and tribes establishing this element may find useful 
information on public participation on EPA's community involvement 
Web site at https://www.epa.gov/superfund/action/community/index.htm.
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    Public access to documents and related materials that a state, 
tribe, or party conducting the cleanup is relying on or developing in 
making cleanup decisions or conducting site activities;
    Prior notice and opportunity for public comment on cleanup plans 
and site activity; and A mechanism by which a person who is, or may be, 
affected by a release or threatened release of a hazardous substance, 
pollutant, or contaminant at a brownfields site--located in the 
community in which the person works or resides--may request that a site 
assessment be conducted. The appropriate state or tribal official must 
consider this request and appropriately respond.
    Mechanisms for approval of a cleanup plan and verification and 
certification that cleanup is complete. EPA's goal in funding 
activities under this element is to have states and tribes include in 
their response program mechanisms to approve cleanup plans and to 
verify that response actions are complete, including a requirement for 
certification or similar documentation from the state, the tribe, or a 
licensed site professional to the person conducting the response action 
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.

Public Record Requirement

    In order to be eligible for Section 128(a) funding, states and 
tribes (including those with MOAs) must establish and maintain a public 
record system, described below, in order to receive funds. 
Specifically, under Section 128(b)(1)(C), states and tribes must:
    Maintain and update, at least annually or more often as 
appropriate, a record of sites that includes the name and location of 
sites at which response actions have been completed during the previous 
year;
    Maintain and update, at least annually or more often as 
appropriate, a record of sites that includes the name and location of 
sites at which response actions are planned to be addressed in the next 
year; and
    Identify in the public record whether or not the site, upon 
completion of the response action, will be suitable for unrestricted 
use. If not, the public record must identify the institutional controls 
relied on in the remedy.
    Section 128(a) funds may be used to maintain and make available a 
public record system that meets the requirements discussed above.
    Distinguishing the ``survey and inventory'' element from the 
``public record.'' It is important to note that the public record 
requirement differs from the ``timely survey and inventory'' element 
described in the ``Four Elements'' section above. The public record 
addresses sites at which response actions have been completed in the 
previous year and are planned to be addressed in the upcoming year. In 
contrast, the ``timely survey and inventory'' element, described above, 
refers to a general approach to identifying brownfields sites.
    Making the public record easily accessible. EPA's goal is to enable 
states and tribes to make the public record and other information, such 
as information from the ``survey and inventory'' element, easily 
accessible. For this reason, EPA will allow states and tribes to use 
Section 128(a) funding to make the public record, as well as other 
information, such as information from the ``survey and inventory'' 
element, available to the public via the internet or other means. For 
example, the Agency would support funding state and tribal efforts to 
include detailed location information in the public record such as the 
street address and latitude and longitude information for each site.\6\
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    \6\ For further information on latitude and longitude 
information, please see EPA's data standards Web site available at 
https://oaspub.epa.gov/edr/epastd$.startup.
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    In an effort to reduce cooperative agreement reporting requirements 
and increase public access to the public record, EPA encourages states 
and tribes to place their public record on the internet. If a state or 
tribe places the

[[Page 69639]]

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.
    Long-term maintenance of the public record. EPA encourages states 
and tribes to maintain public record information, including data on 
institutional controls, on a long term basis (more than one year) for 
sites at which a response action has been completed. Subject to EPA 
regional office approval, states or tribes may include development and 
operation of systems that ensure long term maintenance of the public 
record, including information on institutional controls, in their work 
plans.\7\
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    \7\ States and tribes may find useful information on 
institutional controls on EPA's institutional controls Web site at 
https://www.epa.gov/superfund/action/ic/index.htm.
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Use of Funding

Overview

    Section 128(a)(1)(B) describes the eligible uses of cooperative 
agreement funds by states and tribes. In general, a state or tribe may 
use a cooperative agreement to ``establish or enhance'' their response 
programs, including elements of the response program that include 
activities related to responses at brownfields sites with petroleum 
contamination. Eligible activities include, but are not limited to, the 
following:
    Develop legislation, regulations, procedures, ordinances, guidance, 
etc. that would establish or enhance the administrative and legal 
structure of their response programs;
    Establish and maintain the required public record described above. 
EPA considers activities related to maintaining and monitoring 
institutional controls to be eligible costs under Section 128(a);
    Conduct limited site-specific activities, such as assessment or 
cleanup, provided such activities establish and/or enhance the response 
program and are tied to the four elements. EPA will not provide Section 
128(a) funds solely for assessment or cleanup of specific brownfields 
sites; site specific activities must be an incidental part of an 
overall Section 128(a) work plan that includes funding for other 
activities that establish or enhance the four elements;
    Capitalize a revolving loan fund (RLF) for brownfields cleanup 
under CERCLA Section 104(k)(3). These RLFs are subject to the same 
statutory requirements and cooperative agreement terms and conditions 
applicable to RLFs awarded under Section 104(k)(3). Requirements 
include a 20 percent match on the amount of Section 128(a) funds used 
for the RLF, a prohibition on using EPA cooperative agreement funds for 
administrative costs relating to the RLF, and a prohibition on using 
RLF loans or subgrants for response costs at a site for which the 
recipient may be potentially liable under Section 107 of CERCLA. Other 
prohibitions contained in CERCLA Section 104(k)(4) also apply; or 
Purchase environmental insurance or develop a risk-sharing pool, 
indemnity pool, or insurance mechanism to provide financing for 
response actions under a state or tribal response program.

Uses Related to ``Establishing'' a State or Tribal Response Program

    Under CERCLA Section 128(a), ``establish'' includes activities 
necessary to build the foundation for the four elements of a state or 
tribal response program and the public record requirement. For example, 
a state or tribal response program may use Section 128(a) funds to 
develop regulations, ordinances, procedures, or guidance. For more 
developed state or tribal response programs, ``establish'' may also 
include activities that keep their program at a level that meets the 
four elements and maintains a public record required as a condition of 
funding under CERCLA Section 128(b)(1)(C).

Uses Related to ``Enhancing'' a State or Tribal Response Program

    Under CERCLA Section 128(a), ``enhance'' is related to activities 
that add to or improve a state or tribal response program or increase 
the number of sites at which response actions are conducted under a 
state or tribal response program.
    The exact ``enhancement'' uses that may be allowable depend upon 
the work plan negotiated between the EPA regional office and the state 
or tribe. For example, regional offices and states or tribes may agree 
that Section 128(a) funds may be used for outreach and training 
directly related to increasing awareness of its response program, and 
improving the skills of program staff. It may also include developing 
better coordination and understanding of other state response programs, 
e.g., RCRA or USTs. Other ``enhancement'' uses may be allowable as 
well.

Uses Related to Site-Specific Activities

    States and tribes may use Section 128(a) funds for activities that 
improve state or tribal capacity to increase the number of sites at 
which response actions are conducted under the state or tribal response 
program.
    Eligible uses of funds include, but are not limited to, site-
specific activities such as:

    Conducting assessments or cleanups at brownfields sites (see next 
section for additional information);
    Oversight of response action;
    Technical assistance to federal brownfields cooperative agreement 
recipients;
    Development and/or review of site-specific quality assurance 
project plans (QAPPs);
    Preparation and submission of Property Profile Forms; and
    Auditing site cleanups to verify the completion of the cleanup.

Uses Related to Site-Specific Assessment and Cleanup Activities

    Site-specific assessment and cleanup activities should establish 
and/or enhance the response program and be tied to the four elements. 
EPA will not provide Section 128(a) funds solely for assessment or 
cleanup of specific brownfields sites; site specific activities must be 
an incidental part of an overall Section 128(a) work plan that includes 
funding for other activities that establish or enhance the four 
elements. Site-specific assessments and cleanups must comply with all 
applicable federal and state laws and are subject to the following 
restrictions:
    Section 128(a) funds can only be used for assessments or cleanups 
at sites that meet the definition of a brownfields site at CERCLA 
101(39).
    Absent EPA approval, no more than $200,000 per site can be funded 
for assessments with Section 128(a) funds, and no more than $200,000 
per site can be funded for cleanups with Section 128(a) funds.
    Absent EPA approval, the state/tribe may not use funds awarded 
under this agreement to assess and clean up sites owned or operated by 
the recipient.
    Assessments and cleanups cannot be conducted at sites where the 
state/tribe is a potentially responsible party pursuant to CERCLA 
Section 107, except:
    At brownfields sites contaminated by a controlled substance as 
defined in CERCLA Section 101(39)(D)(ii)(I); or
    When the recipient would satisfy all of the elements set forth in 
CERCLA section 101(40) to qualify as a bona fide prospective purchaser 
except that the date of acquisition of the property was on or before 
January 11, 2002.
    Subgrants cannot be provided to entities that may be potentially 
responsible parties (pursuant to CERCLA Section 107) at the site for

[[Page 69640]]

which the assessment or cleanup activities are proposed to be 
conducted, except:
    At brownfields sites contaminated by a controlled substance as 
defined in CERCLA Section 101(39)(D)(ii)(I); or
    When the recipient would satisfy all of the elements set forth in 
CERCLA section 101(40) to qualify as a bona fide prospective purchaser 
except that the date of acquisition of the property was on or before 
January 11, 2002.

Costs Incurred for Activities at ``Non-brownfields'' Sites

    Costs incurred for activities at non-brownfields sites, e.g., 
oversight, may be eligible and allowable if such activities are 
included in the state's or tribe's work plan. For example, auditing 
completed site cleanups in jurisdictions where states or tribes use 
licensed site professionals, to verify that sites have been properly 
cleaned up, may be an eligible cost under Section 128(a). These costs 
need not be incurred in connection with a brownfields site to be 
eligible, but must be authorized under the state's or tribe's work plan 
to be allowable. Other uses may be eligible and allowable as well, 
depending upon the work plan negotiated between the EPA regional office 
and the state or tribe. However, assessment and cleanup activities may 
only be conducted on eligible brownfields sites, as defined in CERCLA 
101(39).

Uses Related to Site-Specific Activities at Petroleum Brownfields Sites

    States and tribes may use Section 128(a) funds for activities that 
establish and enhance their response programs, even if their response 
programs address petroleum contamination. Also, the costs of site-
specific activities, such as site assessments or cleanup at petroleum 
contaminated brownfields sites, defined at CERCLA Sec.  
101(39)(D)(ii)(II), are eligible and are allowable if the activity is 
included in the work plan negotiated between the EPA regional office 
and the state or tribe. Section 128(a) funds used to capitalize a 
Brownfields RLF may be used at brownfields sites contaminated by 
petroleum to the extent allowed under the CERCLA Sec.  104(k)(3) RLF.

General Programmatic Guidelines for 128(a) Grant Funding Requests

    Funding authorized under CERCLA Section 128(a) is awarded through a 
cooperative agreement \8\ with a state or tribe. The program is 
administered under the general EPA grant and cooperative agreement 
regulations for states, tribes, and local governments found in the Code 
of Federal Regulations at 40 CFR Part 31. Under these regulations, the 
cooperative agreement recipient for Section 128(a) grant program is the 
government to which a cooperative agreement is awarded and which is 
accountable for the use of the funds provided. The cooperative 
agreement recipient is the entire legal entity even if only a 
particular component of the entity is designated in the cooperative 
agreement award document.
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    \8\ A cooperative agreement is an assistance agreement to a 
state or a tribe that includes substantial involvement of EPA 
regional enforcement and program staff during performance of 
activities described in the cooperative agreement work plan. 
Examples of this involvement include technical assistance and 
collaboration on program development and site-specific activities.
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    One application per state or tribe. Subject to the availability of 
funds, EPA regional offices will negotiate and enter into Section 
128(a) cooperative agreements with eligible and interested states or 
tribes. EPA will accept only one application from each eligible state 
or tribe.
    Define the State or Tribal Response Program. States and tribes must 
define in their work plan the ``Section 128(a) response program(s)'' to 
which the funds will be applied, and may designate a component of the 
state or tribe that will be EPA's primary point of contact for 
negotiations on their proposed work plan. When EPA funds the Section 
128(a) cooperative agreement, states and tribes may distribute these 
funds among the appropriate state and tribal agencies that are part of 
the Section 128(a) response program. This distribution must be clearly 
outlined in their annual work plan.
    Separate cooperative agreements for the capitalization of RLFs 
using Section 128(a) funds. If a portion of the128(a) grant funds 
requested will be used to capitalize a revolving loan fund for cleanup, 
pursuant to 104(k)(3), two separate cooperative agreements must be 
awarded, i.e., one for the RLF and one for non-RLF uses. States and 
tribes may, however, submit one initial request for funding, 
delineating the RLF as a proposed use. Section 128(a) funds used to 
capitalize an RLF are not eligible for inclusion into a Performance 
Partnership Grant (PPG).
    Authority To Manage a Revolving Loan Fund Program. If a state or 
tribe chooses to use its 128(a) funds to capitalize a revolving loan 
fund program, the state or tribe must have the authority to manage the 
program, e.g., issue loans. If the agency/department listed as the 
point of contact for the 128(a) cooperative agreement does not have 
this authority, it must be able to demonstrate that another state or 
tribal agency does have the authority to manage the RLF and is willing 
to do so.
    Section 128(a) cooperative agreements are eligible for inclusion in 
the Performance Partnership Grant (PPG). States and tribes may include 
Section 128(a) cooperative agreements in their PPG. 69 Fed. Reg. 51,756 
(2004). Section 128(a) funds used to capitalize an RLF are not eligible 
for inclusion in the PPG.
    Project Period. EPA regional offices will determine the project 
period for each cooperative agreement. These may be for multiple years 
depending on the regional office's cooperative agreement policies. Each 
cooperative agreement must have an annual budget period tied to an 
annual work plan.
    Demonstrating the Four Elements. As part of the annual work plan 
negotiation process, states or tribes that do not have VRP MOAs must 
demonstrate that their program includes, or is taking reasonable steps 
to include, the four elements described above. EPA will not fund, in 
future years, state or tribal response program annual work plans if EPA 
determines that these requirements are not met or reasonable progress 
is not being made. EPA may base this determination on the information 
the state or tribe provides to support its work plan, or on EPA's 
review of the state or tribal response program.
    Establishing and Maintaining the Public Record. Prior to funding a 
state's or tribe's annual work plan, EPA regional offices will verify 
and document that a public record, as described above, exists and is 
being maintained.\9\
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    \9\ For purposes of cooperative agreement funding, the state's 
or tribe's response program(s) that utilized the Section 128(a) 
funding.
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     States or tribes that received initial funding in FY03, 
FY04, FY05, FY06 or FY07: Requests for FY09 funds will not be accepted 
from states or tribes that fail to demonstrate, by the January 31, 2009 
request deadline, that they established and are maintaining a public 
record. (Note, this would potentially impact any state or tribe that 
had a term and condition placed on their FY08 cooperative agreement 
that prohibited drawdown of FY08 funds prior to meeting public record 
requirement.) States or tribes in this situation will not be prevented 
from drawing down their prior year funds, once the public record 
requirement is met, but will be restricted from applying for FY09 
funding.

[[Page 69641]]

     States or Tribes that received initial funding in FY08: By 
the time of the actual FY09 award, the state or tribe must demonstrate 
that they established and maintained the public record (those states 
and tribes that do not meet this requirement will have a term and 
condition placed on their FY09 cooperative agreement that prevents the 
drawdown of FY09 funds until the public record requirement is met).
     Recipients receiving funds for the first time in FY09: 
These recipients have one year to meet this requirement and may utilize 
the 128(a) cooperative agreement funds to do so.

Demonstration of Significant Utilization of Prior Years' Funding

    During the allocation process, EPA headquarters places significant 
emphasis on the utilization of prior years' funding. When submitting 
your request for FY09 funds, the following information must be 
submitted:
     For those states and tribes with Superfund VCP Core or 
Targeted Brownfields Assessment cooperative agreements awarded under 
CERCLA 104(d), you must provide, by agreement number, the amount of 
funds that have not been requested for reimbursement (i.e., those funds 
that remain in EPA's Financial Data Warehouse) and must provide a 
detailed explanation and justification for why such funds should not be 
considered in the funding allocation process.
     For those states and tribes that received FY03, FY04, 
FY05, FY06 and/or FY07 Section 128 funds, you must provide the amount 
of FY03, FY04, FY05, FY06 and/or FY07 funds that have not been 
requested for reimbursement (i.e, those funds that remain in EPA's 
Financial Data Warehouse) and must provide a detailed explanation and 
justification for why such funds should not be considered in the 
funding allocation process.

    Note: EPA Regional staff will review EPA's Financial Database 
Warehouse to confirm the amount of outstanding funds reported. It is 
strongly recommended that you work with your regional counterpart to 
determine the amount of funds ``outstanding.'' In making this 
determination, EPA will take into account those funds that have been 
committed through an appropriate state or tribal contract, inter-
agency agreement, or similar type of binding agreement, but have not 
been requested for reimbursement, i.e., that are not showing as 
``drawn down'' in EPA's Data Warehouse.

    Demonstration of Need to Receive Funds above the FY08 Funding 
Distribution. Due to the limited amount of funding available, 
recipients must demonstrate a specific need when requesting an amount 
above the amount allocated to the state or tribe in FY08.

Allocation System and Process for Distribution of Fund

    EPA regional offices will work with interested states and tribes to 
develop their preliminary work plans and funding requests. Final 
cooperative agreement work plans and budgets will be negotiated with 
the regional office once final allocation determinations are made.
    For Fiscal Year 2009, EPA will consider funding requests up to a 
maximum of $1.5 million per state or tribe. This limit may be changed 
in future years based on appropriation amounts and demand for funding.
    EPA will target funding of at least $3 million per year for tribal 
response programs. If this funding is not used, it will be carried over 
and added to at least $3 million in the next fiscal year. It is 
expected that the funding demand from tribes will increase through the 
life of this cooperative agreement program and this funding allocation 
system should ensure that adequate funding for tribal response programs 
is available in future years.
    After the January 31, 2009 request deadline, regional offices will 
submit summaries of state and tribal requests to EPA headquarters. 
Before submitting requests to EPA headquarters, regional offices may 
take into account additional factors when determining recommended 
allocation amounts. Such factors include, but are not limited to, the 
depth and breadth of the state or tribal program; scope of the 
perceived need for the funding, e.g., size of state or tribal 
jurisdiction or the proposed work plan balanced against capacity of the 
program, amount of prior funding, and funds remaining from prior years, 
etc.
    After receipt of the regional recommendations, EPA headquarters 
will consolidate requests and allocate funds accordingly.
Information To Be Submitted With the Funding Request
    States and tribes requesting 128(a) FY09 funds must submit the 
following information, as applicable, to their regional contact on or 
before January 31, 2009 (regions may request additional information, as 
needed):
     For those states and tribes with prior Superfund VCP Core 
or Targeted Brownfields Assessment funding awarded under CERCLA 104(d), 
provide, by agreement number, the amount of funds that have not been 
requested for reimbursement (i.e., those funds that remain in EPA's 
Financial Data Warehouse) and a detailed explanation and justification 
for why such funds should not be considered in the funding allocation 
process. EPA will take into account those funds that have been 
committed through an appropriate state or tribal contract, interagency 
agreement, or similar type of binding agreement.
     For those states and tribes that received an allocation of 
FY03, '04, '05, '06 and/or '07 128(a) funds, provide the amount of 
FY03, '04, '05, '06 and/or '07 funds that have not been requested for 
reimbursement (i.e., those funds that remain in EPA's Financial Data 
Warehouse) and a detailed explanation and justification for why such 
funds should not be considered in the funding allocation process. EPA 
will take into account those funds that have been committed through an 
appropriate state or tribal contract, interagency agreement, or similar 
type of binding agreement.
     For those states and tribes requesting amounts above their 
FY08 allocation, provide an explanation of the specific need(s) that 
triggered the request for increased funding.
     All states and tribes requesting FY09 funds must submit a 
summary of the planned use of the funds with associated dollar amounts. 
Please provide it in the following format:

------------------------------------------------------------------------
                                                     Summary of intended
         Funding use            Requested amount             use
------------------------------------------------------------------------
Establish or Enhance the                   $XX,XXX  (EXAMPLE USES)
 four elements: 1. Timely                            inventory
 survey and inventory of                             and prioritize
 brownfields sites; 2.                               brownfields sites.
 Oversight and enforcement                           develop a
 authorities or other                                community
 mechanisms; 3. Mechanisms                           involvement
 and resources to provide                            process.
 meaningful opportunities                            fund an
 for public participation;                           outreach
 and 4. Mechanisms or                                coordinator.
 approval of a cleanup plan                          develop/
 and verification and                                enhance ordinances,
 certification that cleanup                          regulations,
 is complete.                                        procedures for
                                                     response programs.
                                                     issue
                                                     public notices of
                                                     site activities.
                                                     review
                                                     cleanup plans and
                                                     verify completed
                                                     actions.

[[Page 69642]]

 
Establish and Maintain the                  XX,XXX  (EXAMPLE USES)
 Public Record.                                      maintain
                                                     public record.
                                                     create web
                                                     site for public
                                                     record.
                                                     disseminate
                                                     public information
                                                     on how to access
                                                     the public record.
Enhance the Response Program                XX,XXX  (EXAMPLE USES)
                                                     provide
                                                     oversight of site
                                                     assessments and
                                                     cleanups.
                                                     attend
                                                     training and
                                                     conferences on
                                                     brownfields cleanup
                                                     technologies &
                                                     other brownfields
                                                     topics.
                                                     update and
                                                     enhance program
                                                     management
                                                     activities.
                                                     negotiate/
                                                     oversee contracts
                                                     for response
                                                     programs.
                                                     enhance
                                                     program management
                                                     & tracking systems.
                                                     prepare
                                                     Property Profile
                                                     Forms/input data
                                                     into ACRES
                                                     database.
Site-specific Activities....                XX,XXX  (EXAMPLE USES)
(amount requested should be                          develop
 incidental to the workplan,                         QAPPs.
 e.g., less than half of the                         perform
 total funding requested).                           site assessments
                                                     and cleanups.
                                                     prepare
                                                     Property Profile
                                                     Forms/input data
                                                     into ACRES database
                                                     for these sites.
Environmental Insurance.....                XX,XXX  (EXAMPLE USES)
                                                     review
                                                     potential uses of
                                                     environmental
                                                     insurance.
Revolving Loan Fund.........                XX,XXX  (EXAMPLE USES)
                                                     create a
                                                     cleanup revolving
                                                     loan fund.
                             -------------------------------------------
    Total Funding Requested.               XXX,XXX
------------------------------------------------------------------------

Reporting of Program Activity Levels

    States and tribes must report, by January 31, 2009, a summary of 
the previous federal fiscal year's work (October 1, 2007 through 
September 30, 2008). The following information must be submitted to 
your regional project officer (if no activity occurred in the 
particular category, indicate ``N/A''):
     Number of properties enrolled in the response program 
supported by the CERCLA 128(a) funding.
     Number of properties that received a No Further Action 
(NFA) documentation or a Certificate of Completion (COC) or equivalent, 
AND have all required institutional controls in place.
     Number of properties that received an NFA or COC or 
equivalent and do NOT have all required institutional controls in 
place.
     Total number of acres associated with properties in the 
second bullet above.
     (OPTIONAL) Number of properties where assistance was 
provided, but the property was NOT enrolled in the response program.

Terms and Reporting

    Cooperative agreements for state and tribal response programs will 
include programmatic and administrative terms and conditions. These 
terms and conditions will describe EPA's substantial involvement 
including technical assistance and collaboration on program development 
and site-specific activities.
    Progress Reports. In accordance with 40 CFR 31.40, state and tribes 
must provide progress reports as provided in the terms and conditions 
of the cooperative agreement negotiated with EPA regional offices. 
State and tribal costs for complying with reporting requirements are an 
eligible expense under the Section 128(a) cooperative agreement. As a 
minimum, state or tribal progress reports must include both a narrative 
discussion and performance data relating to the state's or tribe's 
accomplishments and environmental outputs associated with the approved 
budget and workplan and should provide an accounting of 128(a) funding. 
If applicable, the state or tribe must include information on 
activities related to establishing or enhancing the four elements of 
the state's or tribe's response program. All recipients must provide 
information relating to establishing or, if already established, 
maintaining the public record.
    Depending upon the activities included in the state's or tribe's 
work plan, an EPA regional office may request that a progress report 
include:
    Information related to the public record. All recipients must 
report information related to establishing or, if already established, 
maintaining the public record, described above. States and tribes can 
refer to an already existing public record, e.g., Web site or other 
public database to meet this requirement.
    For the purposes of cooperative agreement funding only, and 
depending upon the activities included in the state or tribe's work 
plan, this may include:
    A list of sites at which response actions have been completed 
including:
     Date the response action was completed.
     Site name.
     Name of owner at time of cleanup, if known.
     Location of the site (street address, and latitude and 
longitude).
     Whether an institutional control is in place.
     Explain the type of institutional control in place (e.g., 
deed restriction, zoning restriction, local ordinance, state registries 
of contaminated property, deed notices, advisories, etc.).
     Nature of the contamination at the site (e.g., hazardous 
substances, contaminants, or pollutants, petroleum contamination, 
etc.).
     Size of the site in acres.
    A list of sites planned to be addressed by the state or tribal 
response program including:
     Site name and the name of owner at time of cleanup, if 
known.
     Location of the site (street address, and latitude and 
longitude).
     To the extent known, whether an institutional control is 
in place.
     Explain the type of the institutional control in place 
(e.g., deed restriction, zoning restriction, local ordinance, state 
registries of contaminated property, deed notices, advisories, etc.).
     To the extent known, the nature of the contamination at 
the site (e.g., hazardous substances, contaminants, or pollutants, 
petroleum contamination, etc.).
     Size of the site in acres.
    Reporting environmental insurance. Recipients with work plans that 
include

[[Page 69643]]

funding for environmental insurance must report:
     Number and description of insurance policies purchased 
(e.g., type of coverage provided; dollar limits of coverage; any 
buffers or deductibles; category and identity of insured persons; 
premium; first dollar or umbrella; site specific or blanket; occurrence 
or claims made, etc.).
     The number of sites covered by the insurance.
     The amount of funds spent on environmental insurance 
(e.g., amount dedicated to insurance program, or to insurance 
premiums).
     The amount of claims paid by insurers to policy holders.
    Reporting for site-specific assessment or cleanup activities. 
Recipients with work plans that include funding for brownfields site 
assessment or cleanup must provide information required by the OMB-
approved Property Profile Form for input into the Assessment Cleanup 
and Redevelopment Exchange System (ACRES) database for each site 
assessment and cleanup.
    Reporting for other site-specific activities. Recipients with work 
plans that include funding for other site-specific related activities 
must include a description of the site-specific activities and the 
number of sites at which the activity was conducted. For example:
     Number and frequency of oversight audits of licensed site 
professional certified cleanups.
     Number and frequency of state/tribal oversight audits 
conducted.
     Number of sites where staff conducted audits, provided 
technical assistance, or conducted other oversight activities.
     Number of staff conducting oversight audits, providing 
technical assistance, or conducting other oversight activities.
    Reporting for RLF uses. Recipients with work plans that include 
funding for Revolving Loan Fund (RLF) must include the information 
required by the terms and conditions for progress reporting under 
CERCLA section 104(k)(3) RLF cooperative agreements.
    Reporting for Non-MOA states and tribes. All recipients without a 
VRP MOA must report activities related to establishing or enhancing the 
four elements of the state's or tribe's response program. For each 
element state/tribes must report how they are maintaining the element 
or how they are taking reasonable steps to establish or enhance the 
element as negotiated in individual state/tribal work plans. For 
example, pursuant to CERCLA Section 128(a)(2)(B), reports on the 
oversight and enforcement authorities/mechanisms element may include:
     A narrative description and copies of applicable documents 
developed or under development to enable the response program to 
conduct enforcement and oversight at sites. For example:
    [cir] Legal authorities and mechanisms (e.g., statutes, 
regulations, orders, agreements);
    [cir] Policies and procedures to implement legal authorities; and 
other mechanisms;
     A description of the resources and staff allocated/to be 
allocated to the response program to conduct oversight and enforcement 
at sites as a result of the cooperative agreement;
     A narrative description of how these authorities or other 
mechanisms, and resources, are adequate to ensure that:
    [cir] A response action will protect human health and the 
environment; and be conducted in accordance with applicable federal and 
state law; and if the person conducting the response action fails to 
complete the necessary response activities, including operation and 
maintenance or long-term monitoring activities, the necessary response 
activities are completed; and
     A narrative description and copy of appropriate documents 
demonstrating the exercise of oversight and enforcement authorities by 
the response program at a brownfields site.
    Where applicable, EPA may require states/tribes to report specific 
performance measures related to the four elements which can be 
aggregated for national reporting to Congress.
    The regional offices may also request other information be added to 
the progress reports, as appropriate, to properly document activities 
described by the cooperative agreement work plan. EPA regions may allow 
states or tribes to provide performance data in appropriate electronic 
format.
    The regional offices will forward progress reports to EPA 
Headquarters, if requested. This information may be used to develop 
national reports on the outcomes of CERCLA Section 128(a) funding to 
states and tribes.

                    Regional Brownfields Coordinators
------------------------------------------------------------------------
                                                      Address & phone
            Region                    States               number
------------------------------------------------------------------------
EPA Region 1, Diane Kelley....  CT, ME, MA, NH,    One Congress Street,
                                 RI, VT.            Suite 1100, Boston,
                                                    MA 02114-2023, Phone
                                                    (617) 918-1424, Fax
                                                    (617) 918-1291.
EPA Region 2, Ramon Torres....  NJ, NY, PR, VI...  290 Broadway, 18th
                                                    Floor, New York, NY
                                                    10007, Phone (212)
                                                    637-4309, Fax (212)
                                                    637-4360.
EPA Region 3, Tom Stolle......  DE, DC, MD, PA,    1650 Arch Street,
                                 VA, WV.            Mail Code 3HS51,
                                                    Philadelphia,
                                                    Pennsylvania 19103,
                                                    Phone (215) 814-
                                                    3129, Fax (215) 814-
                                                    5518.
EPA Region 4, Mike Norman.....  AL, FL, GA, KY,    Atlanta Federal
                                 MS, NC, SC, TN.    Center, 61 Forsyth
                                                    Street, SW., 10th
                                                    fl, Atlanta, GA
                                                    30303-8960, Phone
                                                    (404) 562-8792, Fax
                                                    (404) 562-8439.
EPA Region 5, Deborah Orr.....  IL, IN, MI, MN,    77 West Jackson
                                 OH, WI.            Boulevard, Mail Code
                                                    SE-4J, Chicago,
                                                    Illinois 60604-3507,
                                                    Phone (312) 886-
                                                    7576, Fax (312) 886-
                                                    7190.
EPA Region 6, Monica Chapa      AR, LA, NM, OK,    First Interstate Bank
 Smith.                          TX.                Tower at Fountain
                                                    Place, 1445 Ross
                                                    Avenue, Suite 1200,
                                                    (6SF-VB), Dallas,
                                                    Texas 75202-2733,
                                                    Phone (214) 665-
                                                    6780, Fax (214) 665-
                                                    6660.
EPA Region 7, Susan Klein.....  IA, KS, MO, NE...  901 N. 5th Street,
                                                    Kansas City, Kansas
                                                    66101, Phone (913)
                                                    551-7786, Fax (913)
                                                    551-8688.
EPA Region 8, Dan Heffernan...  CO, MT, ND, SD,    1595 Wynkoop Street
                                 UT, WY.            (EPR-B), Denver, CO
                                                    80202-1129, Phone
                                                    (303) 312-7074, Fax
                                                    (303) 312-6065.
EPA Region 9, Debbie Schechter  AZ, CA, HI, NV,    75 Hawthorne Street,
                                 AS, GU.            SFD 9-1, San
                                                    Francisco,
                                                    California 94105,
                                                    Phone (415) 972-
                                                    3093, Fax (415) 947-
                                                    3520.

[[Page 69644]]

 
EPA Region 10, Susan Morales..  AK, ID, OR, WA...  1200 Sixth Avenue,
                                                    Suite 900, Mailstop:
                                                    ECL-112, Seattle,
                                                    Washington 98101,
                                                    Phone (206) 553-
                                                    7299, Fax (206) 553-
                                                    0124.
------------------------------------------------------------------------

    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. Because 
this grant action is not subject to notice and comment requirements 
under the Administrative Procedures Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. Section 601 et.) or 
Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) 
(Pub. L. 104-4). In addition, this action does not significantly or 
uniquely affect small governments. Although this action does not 
generally create new binding legal requirements, where it does, such 
requirements do not substantially and directly affect Tribes under 
Executive Order 13175 (63 FR 67249, November 9, 2000). Although this 
grant action does not have significant Federalism implications under 
Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted 
with states in the development of these grant guidelines. This action 
is not subject to Executive Order 13211, ``Actions Concerning 
Regulations that Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001), because it is not a significant 
regulatory action under Executive Order 12866. This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
Section 272 note) do not apply. This action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. Section 3501 et seq.). The 
Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that 
before certain actions may take effect, the agency promulgating the 
action must submit a report, which includes a copy of the action, to 
each House of the Congress and to the Comptroller General of the United 
States. Since this grant action, when finalized, will contain legally 
binding requirements, it is subject to the Congressional Review Act, 
and EPA will submit its final action in its report to Congress under 
the Act.

    Dated: November 12, 2008.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of 
Solid Waste and Emergency Response.
[FR Doc. E8-27473 Filed 11-18-08; 8:45 am]
BILLING CODE 6560-50-P