Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding Guidance for State and Tribal Response Programs for FY2011, 69992-70001 [2010-28825]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 220 (Tuesday, November 16, 2010)]
[Notices]
[Pages 69992-70001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28825]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9227-5]


Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding 
Guidance for State and Tribal Response Programs for FY2011

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept 
requests, from December 1, 2010 through January 31, 2011, 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 2011, EPA will consider funding requests up to a 
maximum of $1.3 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, 2010. EPA expects to 
make non-competitive grant awards to states and tribes which apply 
during fiscal year 2011.

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) 566-2892.

SUPPLEMENTARY INFORMATION:

I. General 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 2011 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 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, 2010 through 
January 31, 2011. Requests received after January 31, 2011 will not be 
considered for FY2011 funding. Information required to be submitted 
with the funding request is contained in Section IX. 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 contacts listed at the 
end of Section X, prior to submitting their funding request.
    Requests submitted by the January 31, 2011 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 
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 
https://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

[[Page 69993]]

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.

II. 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 establish 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.

III. Eligibility for Funding

    To be eligible for funding under CERCLA Section 128(a), a state or 
tribe must:
    1. Demonstrate that its response program includes, or is taking 
reasonable steps to include, the four elements of a response program, 
described Section V; or be a party to voluntary response program 
Memorandum of Agreement (VRP MOA) \5\ with EPA; and
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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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    2. Maintain and make available to the public a record of sites at 
which response actions have been completed in the previous year and are 
planned to be addressed in the upcoming year, see CERCLA Section 
128(b)(1)(C).

IV. 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).

V. 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 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. A response action will protect human health and the environment 
and be conducted in accordance with applicable laws; and
    b. 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.
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    a. 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;
    b. Prior notice and opportunity for public comment on cleanup plans 
and site activity; and
    c. A mechanism by which a person who is, or may be, affected by a 
release or threatened release of a hazardous substance, pollutant, or 
contaminant at a 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

[[Page 69994]]

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.

VI. 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:
    1. 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;
    2. 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
    3. Identify in the public record whether or not the site, upon 
completion of the response action, will be suitable for unrestricted 
use. If not, the public record must identify the institutional controls 
relied on in the remedy.
    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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VII. 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 as 
described in Section VI;
     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

[[Page 69995]]

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., Resource Conservation and Recovery Act (RCRA) or Underground 
Storage Tanks (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 intuitional 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. The amount requested for site-specific assessments and 
cleanups may not exceed 50% of the total amount of funding requested.
    Other eligible uses of funds for site-specific related activities 
(i.e., site specific but do not involve conducting actual site 
assessments or cleanups) include, but are not limited to, the 
following. EPA does not cap the amount of funding applicants may 
request for these activities:
     Oversight of response action;
     technical assistance to federal brownfields cooperative 
agreement recipients;
     development and/or review of 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 laws and are subject to the following 
restrictions:
    a. Section 128(a) funds can only be used for assessments or 
cleanups at sites that meet the definition of a brownfields site at 
CERCLA 101(39).
    b. 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.
    c. 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.
    d. Assessments and cleanups cannot be conducted at sites where the 
state/tribe is a potentially responsible party pursuant to CERCLA 
Section 107, except:
    [cir] At brownfields sites contaminated by a controlled substance 
as defined in CERCLA Section 101(39)(D)(ii)(I); or
    [cir] 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:
    1. At brownfields sites contaminated by a controlled substance as 
defined in CERCLA Section 101(39)(D)(ii)(I); or
    2. 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).

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

    Funding authorized under CERCLA Section 128(a) is awarded through a 
cooperative agreement \9\ with a state or

[[Page 69996]]

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 128(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).
    D. 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.
    E. Section 128(a) cooperative agreements can be part of a 
Performance Partnership Grant (PPG). 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 in Section V. 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 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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    3. States or tribes that received initial funding prior to FY10: 
Requests for FY11 funds will not be accepted from states or tribes that 
fail to demonstrate, by the January 31, 2011 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 FY10 cooperative agreement that prohibited drawdown of 
FY10 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 FY11 funding.
    4. States or Tribes that received initial funding in FY10: by the 
time of the actual FY11 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 FY11 cooperative agreement that prevents the drawdown 
of FY11 funds until the public record requirement is met).
    5. Recipients receiving funds for the first time in FY11: these 
recipients have one year to meet this requirement and may utilize the 
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. Unused 
funds from prior years will be considered in the allocation process. 
Existing balances in EPA's Financial Data Warehouse could support an 
allocation amount below a grantee's request for funding. If a grantee 
wishes to avoid an allocation reduction, when submitting a request for 
FY11 funds, include a detailed explanation and justification of funds 
that remain in EPA's Financial Data Warehouse from prior years (that 
are related to response program activities or brownfield related 
activities).
    EPA Regional staff will review EPA's Financial Database Warehouse 
to identify the amount of remaining prior year(s) funds. The 
cooperative agreement recipient should work, as early as possible, with 
both their own finance department, and with their Regional Project 
Officer to reconcile any discrepancy between the amount of unspent 
funds showing in EPA's system, and the amount reflected in the 
recipient's records. The recipient should obtain concurrence from the 
Region on the amount of unspent funds requiring justification by the 
deadline for this request for funding.
    J. Explanation of proposed activity/task that would require an 
increase from the FY10 funding amount. Due to the limited amount of 
funding available, recipients must demonstrate the environmental 
benefits of undertaking the proposed activity/task and how that 
activity/task supports the four elements of a response program in 
addition to highlighting any activities in 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

[[Page 69997]]

communities with limited experience working with government agencies. 
Refer to Section IX for information to be submitted with funding 
request.

K. 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. 
Please refer to process flow chart below:
[GRAPHIC] [TIFF OMITTED] TN16NO10.026

    For Fiscal Year 2011, EPA will consider funding requests up to a 
maximum of $1.3 million per state or tribe. This limit may be changed 
in future years based on appropriation amounts and demand for funding. 
Please note the CERCLA 128(a) annual program's budget has remained 
static while demand for funding continues to increase every year.\11\ 
Therefore, in most instances the FY11 state and tribal individual 
funding amounts will not meet the FY10 funding amounts. Requests for 
increases over the FY10 funding amount will be considered only after 
allocations are made to cover basic core support to programs of all 
eligible requestors.
---------------------------------------------------------------------------

    \11\ FY10 EPA received $67.1 Million in requests for funding 
from States and Tribes under CERCLA 128(a). The FY10 enacted budget 
was $49.5 Million. The resulting budget shortfall was approximately 
$17 Million.
---------------------------------------------------------------------------

    After the January 31, 2011 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.

IX. Information To Be Submitted With the Funding Request

A. Demonstration of significant utilization of prior years' funding

    States and tribes requesting 128(a) FY11 funds must submit the 
following information, as applicable, to their regional contact on or 
before January 31, 2011 (regions may request additional information, as 
needed):
     For those states and tribes with prior 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). EPA will take into account these funds in the allocation 
process. A cooperative agreement recipient can choose to provide a 
justification to EPA that explains why the underused funds should not 
be considered in the current request for funding.
     For those states and tribes that received FY08 or prior 
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). EPA will take into account these funds in the allocation 
process.

B. Summary of Planned Use of FY11 Funding

    All states and tribes requesting FY11 funds must submit a summary 
of the planned use of the funds with associated dollar amounts. Please 
provide the request in the following format below:

----------------------------------------------------------------------------------------------------------------
                                                    FY10        FY11
                  Funding use                      Awarded    Requested  Summary of intended use  (example uses)
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements:........     $XX,XXX     $XX,XXX  .......................................
1. Timely survey and inventory of brownfields    ..........  ..........  1. Examples:
 sites;.                                                                  inventory and prioritize
                                                                          brownfields sites.
2. Oversight and enforcement authorities or      ..........  ..........  2. Examples:
 other mechanisms;.                                                       develop/enhance ordinances,
                                                                          regulations, procedures for response
                                                                          programs.

[[Page 69998]]

 
3. Mechanisms and resources to provide           ..........  ..........  3. Examples:
 meaningful opportunities for public                                      develop a community
 participation;.                                                          involvement process.
                                                                          fund an outreach coordinator.
                                                                          issue public notices of site
                                                                          activities.
                                                                          develop a process to seek
                                                                          public 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 to prioritize
                                                                          sites to be addressed.
4. Mechanisms or approval of a cleanup plan and  ..........  ..........  4. Examples:
 verification and certification that cleanup is                           review cleanup plans and
 complete..                                                               verify completed actions.
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   perform site assessments and
 should be incidental to the workplan, e.g.,                              cleanups.
 less than half of the total funding requested                            develop QAPPs.
 see Section VII.D for more information on what                           prepare Property Profile Forms/
 activities should be considered when                                     input data into ACRES database for
 calculating site specific activities.).                                  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
                                                                          [ballot] No [ballot]
----------------------------------------------------------------------------------------------------------------

C. Explanation of proposed activity/task that would require an increase 
from the FY10 funding amount

    For those states and tribes requesting amounts above their FY10 
allocation, a separate explanation must be provided using the format 
below or the explanation can be made in a narrative form. The request 
should clearly demonstrate the environmental benefits of the proposed 
activity/task and how it directly supports the establishment and 
enhancement of the four elements of a response program. Requests for 
increases over the FY10 funding amount will be considered only after 
allocations are made to cover basic core support to programs of all 
eligible requestors. Please note the CERCLA 128(a) annual program's 
budget has remained static while demand for funding continues to 
increase every year.\12\ Therefore, in most instances the FY11 state 
and tribal individual funding amounts will not meet the FY10 funding 
amounts. Increases in funding are unlikely.
---------------------------------------------------------------------------

    \12\ FY10 EPA received $67.1 Million in requests for funding 
from States and Tribes under CERCLA 128(a). The FY10 enacted budget 
was $49.5 Million. The resulting budget shortfall was approximately 
$17 Million.

----------------------------------------------------------------------------------------------------------------
  Explanation of request(s) for funding                    One time \13\ request or     Explanation/anticipated
         above FY10 award level               Amount              recurring?                    outcome
----------------------------------------------------------------------------------------------------------------
Establish or Enhance the four elements:          $XX,XXX  One Time [ballot].........  Explanation of
 1. Timely survey and inventory of                        Recurring [ballot]........   environmental benefits
 brownfields sites; 2. Oversight and                                                  Anticipated Outcome:
 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 [ballot].........  Explanation of
                                                          Recurring [ballot]........   environmental benefits
                                                                                      Anticipated Outcome:
Enhance the Response Program............         $XX,XXX  One Time [ballot].........  Explanation of
                                                          Recurring [ballot]........   environmental benefits
                                                                                      Anticipated Outcome:
Site-specific Activities (amount                 $XX,XXX  One Time [ballot].........  Explanation of
 requested should be incidental to the                    Recurring [ballot]........   environmental benefits
 workplan, e.g., less than half of the                                                Anticipated Outcome:
 total funding requested).

[[Page 69999]]

 
Environmental Insurance.................         $XX,XXX  One Time [ballot].........  Explanation of
                                                          Recurring [ballot]........   environmental benefits
                                                                                      Anticipated Outcome:
Revolving Loan Fund.....................         $XX,XXX  One Time [ballot].........  Explanation of
                                                          Recurring [ballot]........   environmental benefits
                                                                                      Anticipated Outcome:
    Total Increase Requested............         $XX,XXX  ..........................  ..........................
----------------------------------------------------------------------------------------------------------------
\13\ A one time request is not likely to repeat whereas a recurring charge is likely to periodically occur
  again.

D. Reporting of Program Activity Levels

    States and tribes must report, by January 31, 2011, a summary of 
the previous federal fiscal year's work (October 1, 2009 through 
September 30, 2010). 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.

X. 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. Each of the subsections below summarizes 
the basic terms and conditions and related reporting that will be 
required if a cooperative agreement with EPA is awarded.

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:
    1. Reporting environmental insurance. Recipients with work plans 
that include funding for environmental insurance must report:
    [cir] 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.)
    [cir] The number of sites covered by the insurance
    [cir] The amount of funds spent on environmental insurance (e.g., 
amount dedicated to insurance program, or to insurance premiums)
    [cir] The amount of claims paid by insurers to policy holders
    2. 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 into the Assessment Cleanup and 
Redevelopment Exchange System (ACRES) database for each site assessment 
and cleanup. In addition, recipients must report how they provide the 
affected community with prior notice and opportunity for meaningful 
participation as per CERCLA Section 128(a)(2)(C)(ii) on proposed 
cleanup plans and site activities. For example, 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.
    3. 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:
    [cir] Number and frequency of oversight audits of licensed site 
professional certified cleanups.
    [cir] Number and frequency of state/tribal oversight audits 
conducted.
    [cir] Number of sites where staff conducted audits, provided 
technical assistance, or conducted other oversight activities.
    [cir] Number of staff conducting oversight audits, providing 
technical assistance, or conducting other oversight activities.
    4. 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.
    5. 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:
    [cir] 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:
     legal authorities and mechanisms (e.g., statutes, 
regulations, orders, agreements);

[[Page 70000]]

     policies and procedures to implement legal authorities; 
and other mechanisms;
    [cir] 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;
    [cir] 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
    [cir] a narrative description and copy of appropriate documents 
demonstrating the exercise of oversight and enforcement authorities by 
the response program at a brownfields site.
    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.

B. Reporting of Program Activity Levels

    States and tribes must report, by January 31, 2011, a summary of 
the previous federal fiscal year's work (October 1, 2009 through 
September 30, 2010). The following information must be submitted to 
your regional project officer (if no activity occurred in the 
particular category, indicate a ``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) 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.
    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.
    For example:
    1. Timely Survey & Inventory--Estimated number of brownfields sites 
in the state or on tribal land.
    2. Oversight & Enforcement Authorities/Mechanisms--Number of active 
cleanups and percentage that received oversight; percentage of active 
cleanups not in compliance with the cleanup workplan and that received 
communications from recipient regarding non-compliance.
    3. Public Participation--Percentage of sites in the response 
program where public meetings/notices were conducted regarding the 
cleanup plan and/or other site activities; number of requests and 
responses to site assessment requests.
    4. Cleanup Approval/Certification Mechanisms--Total number of ``no 
further action'' letters or total number of certificate of completions.
    (NOTE: where applicable, this reporting requirement may include 
activities not funded with CERCLA Section 128(a) monies, because this 
information may be used by EPA to evaluate whether recipients without 
MOAs have met or are taking reasonable steps to meet the four elements 
of a response program pursuant to CERCLA Section 128(a)(2).)

C. Reporting of Public Record

    All recipients must report, as specified in the terms and 
conditions of their cooperative agreement, 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 the 
public record requirement. Recipients reporting may only be required to 
demonstrate that the public record a. exists and is up-to-date b. is 
adequate. A public record may include the following information:
    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.

D. Award administration information

1. Subaward and executive compensation reporting
    Applicants must ensure that they have the necessary processes and 
systems in place to comply with the subaward and executive total 
compensation reporting requirements established under OMB guidance at 2 
CFR Part 170, unless they qualify for an exception from the 
requirements, should they be selected for funding.
2. Central Contractor Registration (CCR) and Data Universal Numbering 
System (DUNS) Requirements
    Unless exempt from these requirements under OMB guidance at 2 CFR 
Part 25 (e.g., individuals), applicants must:
    a. Be registered in the CCR prior to submitting an application or 
proposal under this announcement. CCR information can be found at: 
https://www.bpn.gov/ccr/.
    b. Maintain an active CCR registration with current information at 
all times during which it has an active Federal award or an application 
or proposal under consideration by an agency, and
    c. Provide its DUNS number in each application or proposal it 
submits to the agency. Applicants can receive a DUNS number, at no 
cost, by calling the dedicated toll-free DUNS Number request line at 1-
866-705-5711, or visiting the D&B Web site at: https://www.dnb.com.
    If an applicant fails to comply with these requirements, it will, 
should it be

[[Page 70001]]

selected for award, affect their ability to receive the award.
3. Use of funds
    An applicant that receives an award under this announcement is 
expected to manage assistance agreement funds efficiently and 
effectively and make sufficient progress towards completing the project 
activities described in the work-plan in a timely manner. The 
assistance agreement will include terms/conditions implementing this 
requirement.

             Regional State and Tribal Brownfields Contacts
------------------------------------