Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding Guidance for State and Tribal Response Programs, 59163-59172 [E9-27568]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 220 (Tuesday, November 17, 2009)]
[Notices]
[Pages 59163-59172]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27568]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-SFUND-2009-0827; FRL-8980-6]


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 (EPA).

ACTION: Notice.

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SUMMARY: EPA will begin to accept requests, from December 1, 2009 
through January 31, 2010, 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.

[[Page 59164]]

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 2010, 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, 2009. EPA expects to 
make non-competitive grant awards to states and tribes which apply 
during fiscal year 2010.

ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA 
Headquarters can be located at 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 EPA's regional offices. This document provides guidance 
that will enable states and tribes to apply for and use Fiscal Year 
2010 section 128(a) funds.\3\
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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, Nov. 4, 2002, 
are also eligible for funding under CERCLA section 128(a).
    \3\ The Agency may waive any provision of this guidance that is 
not required by statute, regulation, Executive Order or overriding 
Agency policies.
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    Requests for funding will be accepted from December 1, 2009 through 
January 31, 2010. Requests received after January 31, 2010 will not be 
considered for FY 2010 funding. Information required to be submitted 
with the funding request is on pages 27-32. States or tribes that do 
not 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 34) prior 
to submitting their funding request.
    Requests submitted by the January 31, 2010 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 recipient's use of prior 
section 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, with the exception of funds used 
to capitalize a revolving loan fund for brownfield remediation under 
section 104(k)(3); or purchase insurance or develop a risk sharing 
pool, an indemnity pool, or insurance mechanism to provide financing 
for response actions under a State or Tribal response program.

I. 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) \4\, 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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    \4\ 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.

II. 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 be a party to voluntary response program Memorandum 
of Agreement (VRP MOA) \5\ with EPA;
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    \5\ 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 
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 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 section 104(k)(3).

IV. 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:
    (1) 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

[[Page 59165]]

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.
    (2) Oversight and enforcement authorities or other mechanisms and 
resources. EPA's goal in funding activities under this element is to 
have state and tribal response programs that include oversight and 
enforcement authorities or other mechanisms, and resources that are 
adequate to ensure that:

--a 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).
    (3) Mechanisms and resources to provide meaningful opportunities 
for public participation\6\. EPA's goal in funding activities under 
this element is to have states and tribes include in their response 
program mechanisms and resources for meaningful public participation, 
at the local level, including, at a minimum:
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    \6\ 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/community/policies.htm.

--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.

    (4) Mechanisms for approval of a cleanup plan and verification and 
certification that cleanup is complete. EPA's goal in funding 
activities under this element is to have states and tribes include in 
their response program mechanisms to approve cleanup plans and to 
verify that response actions are complete, including a requirement for 
certification or similar documentation from the state, the tribe, or a 
licensed site professional 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.

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, 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.
    A. Distinguishing the ``survey and inventory'' element from the 
``public record.'' It is important to note that the public record 
requirement differs from the ``timely survey and inventory'' element 
described in the ``Four Elements'' section above. The public record 
addresses sites at which response actions have been completed in the 
previous year 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.
    B. Making the public record easily accessible. EPA's goal is to 
enable states and tribes to make the public record and other 
information, such as information from the ``survey and inventory'' 
element, easily accessible. For this reason, EPA will allow states and 
tribes to use section 128(a) funding to make the public record, as well 
as other information, such as information from the ``survey and 
inventory'' element, available to the public via the internet or other 
means. For example, the Agency would support funding state and tribal 
efforts to include detailed location information in the public record 
such as the street address and latitude and longitude information for 
each site.\7\
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    \7\ For further information on latitude and longitude 
information, please see EPA's data standards Web site available at 
https://iaspub.epa.gov/sor_internet/registry/datastds/findadatastandard/epaapproved/latitudelongitude
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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 public record on the internet, maintains the 
substantive requirements of the public record, and provides EPA with 
the link to that site, EPA will, for purposes of cooperative agreement 
funding only, deem the public record reporting requirement met.
    C. Long-term maintenance of the public record. EPA encourages 
states and tribes to maintain public record information, including data 
on institutional controls, on a long term basis (more than one year) 
for sites at which a response action has been completed. Subject to EPA 
regional office approval, states or tribes may include development and 
operation of systems that ensure long term maintenance of the public 
record, including information on institutional controls, in their work 
plans.\8\
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    \8\ States and tribes may find useful information on 
institutional controls on EPA's institutional controls Web site at 
https://www.epa.gov/superfund/policy/ic/index.htm

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[[Page 59166]]

VI. Use Of Funding

A. 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. In addition to the 
requirement per CERCLA section 128(a)(2)(C)(ii) to obtain public 
comment on cleanup plans and site activities, EPA strongly encourages 
states and tribes to seek public input regarding the priority of sites 
to be addressed and solicit input from local communities, especially 
potential environmental justice communities, communities with a health 
risk related to exposure to hazardous waste or other public health 
concerns, economically disadvantaged or remote areas, and communities 
with limited experience working with government agencies. EPA will not 
provide section 128(a) funds solely for assessment or cleanup of 
specific brownfields sites; site specific activities must be 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.

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

    Under CERCLA section 128(a), ``establish'' includes activities 
necessary to build the foundation for the four elements of a state or 
tribal response program and the public record requirement. For example, 
a state or tribal response program may use section 128(a) funds to 
develop regulations, ordinances, procedures, 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).

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. As another example, states and tribal response 
programs enhancement activities can include outreach to local 
communities to increase their awareness and knowledge regarding the 
importance of monitoring engineering and institutional controls. Other 
``enhancement'' uses may be allowable as well.

D. Uses Related to Site-Specific Activities

    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.

E. 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. 
In addition to the requirement per CERCLA section 128(a)(2)(C)(ii) to 
obtain public comment on cleanup plans and site activities, EPA 
strongly encourages states and tribes to seek public input regarding 
the priority of sites to be addressed and solicit input from local 
communities, especially potential environmental justice communities, 
communities with a health risk related to exposure to hazardous waste 
or other public health concerns, economically disadvantaged or remote 
areas, and communities with limited experience working with government 
agencies. EPA will not provide section 128(a) funds solely for 
assessment or cleanup of specific brownfields sites; site-specific 
activities must be 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 section 
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; and
--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.


[[Page 59167]]


    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 
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.

F. 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 
section 101(39).

G. 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 section 
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 CERCLA section 104(k)(3).

VII. General Programmatic Guidelines for Section 128(A) Grant Funding 
Requests

    Funding authorized under CERCLA section 128(a) is awarded through a 
cooperative agreement \9\ 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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    \9\ 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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    A. One application per state or tribe. Subject to the availability 
of funds, EPA regional offices will negotiate and enter into section 
128(a) cooperative agreements with eligible and interested states or 
tribes. EPA will accept only one application from each eligible state 
or tribe.
    B. 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.
    C. Separate cooperative agreements for the capitalization of RLFs 
using section 128(a) funds. If a portion of the section 128(a) grant 
funds requested will be used to capitalize a revolving loan fund for 
cleanup, pursuant to section 104(k)(3), two separate cooperative 
agreements must be awarded, i.e., one for the RLF and one for non-RLF 
uses. States and tribes may, however, submit one initial request for 
funding, delineating the RLF as a proposed use. Section 128(a) funds 
used to capitalize an RLF are not eligible for inclusion into a 
Performance Partnership Grant (PPG).
    D. Authority to Manage a Revolving Loan Fund Program. If a state or 
tribe chooses to use its secton 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 section 128(a) cooperative agreement does not 
have this authority, it must be able to demonstrate that another state 
or tribal agency does have the authority to manage the RLF and is 
willing to do so.
    E. Section 128(a) cooperative agreements are eligible for inclusion 
in the Performance Partnership Grant. States and tribes may include 
section 128(a) cooperative agreements in their PPG. 69 FR 51,756 
(2004). Section 128(a) funds used to capitalize an RLF or purchase 
insurance or develop a risk sharing pool, an indemnity pool, or 
insurance mechanism to provide financing for response actions under a 
state or tribal response program are not eligible for inclusion in the 
PPG.
    F. 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.
    G. 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.
    H. 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

[[Page 59168]]

described above, exists and is being maintained \10\.
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    \10\ For purposes of cooperative agreement funding, the state's 
or tribe's public record applies to that state's or tribe's response 
program(s) that utilized the Section 128(a) funding.
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     States or tribes that received initial funding prior to 
FY09: Requests for FY10 funds will not be accepted from states or 
tribes that fail to demonstrate, by the January 31, 2010 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 FY09 cooperative agreement that 
prohibited drawdown of FY09 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 FY10 
funding.
     States or Tribes that received initial funding in FY09: by 
the time of the actual FY10 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 FY10 cooperative agreement that prevents the 
drawdown of FY10 funds until the public record requirement is met).
     Recipients receiving funds for the first time in FY10: 
these recipients have one year to meet this requirement and may utilize 
the section 128(a) cooperative agreement funds to do so.

I. 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 FY10 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 
section 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, 
FY07 and/or FY08 section 128(a) funds, you must provide the amount of 
FY03, FY04, FY05, FY06, FY07 and/or FY08 funds that have not been 
requested for reimbursement (i.e, those funds that remain in EPA's 
Financial Data Warehouse). These funds will 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.''

J. Demonstration of Need To Receive Funds Above the FY09 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 FY09.

K. Allocation System and Process for Distribution of Funds

    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 2010, 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, 2010 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.

VIII. Information To Be Submitted With the Funding Request

    States and tribes requesting section 128(a) FY10 funds must submit 
the following information, as applicable, to their regional contact on 
or before January 31, 2010 (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 section 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). EPA will take into account these funds in 
the allocation process.
--For those states and tribes that received FY08 or prior section 
128(a) 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). EPA will 
take into account these funds in the allocation process.

    All states and tribes requesting FY10 funds must submit a summary 
of the planned use of the funds with associated dollar amounts. Please 
provide the request in the following format:

 
----------------------------------------------------------------------------------------------------------------
                                                                                     Summary of intended use
                  Funding use                    FY09 awarded   FY10 requested           (Example uses)
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements:                $XX,XXX         $XX,XXX
 1. Timely survey and inventory of brownfields  ..............  ..............   Inventory and
 sites;                                                                          prioritize brownfields sites.
2. Oversight and enforcement authorities or     ..............  ..............   Develop/enhance
 other mechanisms;                                                               ordinances, regulations,
                                                                                 procedures for response
                                                                                 programs.

[[Page 59169]]

 
3. Mechanisms and resources to provide          ..............  ..............   Develop a community
 meaningful opportunities for public                                             involvement process.
 participation; and                                                              Fund an outreach
                                                                                 coordinator.
                                                                                 Issue public notices of
                                                                                 site activities.
4. Mechanisms or approval of a cleanup plan     ..............  ..............   Review cleanup plans
 and verification and certification that                                         and verify completed actions.
 cleanup is complete.
Establish and Maintain the Public Record......         $XX,XXX         $XX,XXX   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         $XX,XXX   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 (amount requested             $XX,XXX         $XX,XXX   Develop QAPPs.
 should be incidental to the workplan, e.g.,                                     Perform site
 less than half of the total funding                                             assessments and cleanups.
 requested).                                                                     Prepare Property
                                                                                 Profile Forms/input data into
                                                                                 ACRES database for these sites.
Environmental Insurance.......................         $XX,XXX         $XX,XXX   Review potential uses
                                                                                 of environmental insurance.
Revolving Loan Fund...........................         $XX,XXX         $XX,XXX   Create a cleanup
                                                                                 revolving loan fund.
----------------------------------------------------------------------------------------------------------------
Total Funding.................................        $XXX,XXX        $XXX,XXX  Performance Partnership Grant?
                                                                                 Yes [square] No [square]
----------------------------------------------------------------------------------------------------------------

    For those states and tribes requesting amounts above their FY09 
allocation, a separate explanation of the specific need(s) and the 
increased amount that triggered the request for that need(s) must be 
provided in the format below:
---------------------------------------------------------------------------

    \11\ A one time request is not likely to repeat whereas a 
recurring charge is likely to periodically occur again.

----------------------------------------------------------------------------------------------------------------
  Explanation of request(s) for funding                     One time \11\ request      Explanation/anticipated
             above FY09 award                  Amount           or recurring?                  outcome
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements:           $XX,XXX  One Time [square]        Explanation of need:
1. Timely survey and inventory of                          Recurring [square]        Anticipated Outcome:
 brownfields sites; 2. Oversight and
 enforcement authorities or other
 mechanisms; 3. Mechanisms and resources
 to provide meaningful opportunities for
 public participation; and/or 4.
 Mechanisms or approval of a cleanup plan
 and verification and certification that
 cleanup is complete..
Establish and Maintain the Public Record.         $XX,XXX  One Time [square]        Explanation of need:
                                                           Recurring [square]
                                           ..............                           Anticipated Outcome:
Enhance the Response Program.............         $XX,XXX  One Time [square]        Explanation of need:
                                                           Recurring [square]
                                           ..............                           Anticipated Outcome:
Site-specific Activities (amount                  $XX,XXX  One Time [square]        Explanation of need:
 requested should be incidental to the                     Recurring [square]
 workplan, e.g., less than half of the
 total funding requested).
                                           ..............                           Anticipated Outcome:
Environmental Insurance..................         $XX,XXX  One Time [square]        Explanation of need:
                                                           Recurring [square]
                                           ..............                           Anticipated Outcome:
Revolving Loan Fund......................         $XX,XXX  One Time [square]        Explanation of need:
                                                           Recurring [square]
                                           ..............                           Anticipated Outcome:
----------------------------------------------------------------------------------------------------------------
    Total Increase Requested.............         $XX,XXX  .......................  ............................
----------------------------------------------------------------------------------------------------------------

Reporting of Program Activity Levels
    States and tribes must report, by January 31, 2010, a summary of 
the previous federal fiscal year's work (October 1, 2008 through 
September 30, 2009). 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 section 128(a) funding.
     Number of properties that received a ``No Further Action'' 
(NFA)

[[Page 59170]]

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.

IX. Terms and Reporting

    Cooperative agreements for state and tribal response programs will 
include programmatic and administrative terms and conditions. These 
terms and conditions will describe EPA's substantial involvement 
including technical assistance and collaboration on program development 
and site-specific activities.
    A. 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 section 128(a) funding. If applicable, the state or tribe 
must include information on activities related to establishing or 
enhancing the four elements of the state's or tribe's response program. 
All recipients must provide information 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 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 input information required by the OMB-
approved Property Profile Form (PPF) 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

[[Page 59171]]

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 and 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, Alison Devine...  NJ, NY, PR, VI...  290 Broadway, 18th
                                                    Floor
                                                   New York, NY 10007
                                                   Phone (212) 637-4158
                                                    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,
                                                    S.W, 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, Noemi Emeric-     AZ, CA, HI, NV,    600 Wilshire Blvd,
 Ford.                           AS, GU.            Suite 1460
                                                   Mail Code SFD-1
                                                   Los Angeles,
                                                    California 90017
                                                   Phone (213) 244-1821
                                                    Fax (213) 244-1850
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. 601 et seq.) 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. 
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. 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

[[Page 59172]]

submit its final action in its report to Congress under the Act.

    Dated: November 5, 2009.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of 
Solid Waste and Emergency Response.
[FR Doc. E9-27568 Filed 11-16-09; 8:45 am]
BILLING CODE 6560-50-P