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 FY2012, 73622-73631 [2011-30780]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Notices]
[Pages 73622-73631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30780]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9497-8]


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 FY2012

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept 
requests, from December 1, 2011 through January 31, 2012, 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 2012, EPA will consider funding requests up to a 
maximum of $1.2 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, 2011. EPA expects to 
make non-competitive grant awards to states and tribes which apply 
during fiscal year 2012.

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) 566-2892.

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. CERCLA 128(a) response program 
grants are funded with ``categorical'' State and Tribal Assistance 
Grant (STAG) appropriations. Section 128(a) cooperative agreements are 
awarded and administered by the U.S. Environmental Protection Agency 
(EPA) regional offices. Generally, these response programs address the 
assessment, cleanup, and redevelopment of brownfields sites and other 
sites with actual or perceived contamination. This document provides 
guidance that will enable states and tribes to apply for and use Fiscal 
Year 2012 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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    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 under 40 CFR part 35 Subparts A 
and B, 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.
    Requests for funding will be accepted from December 1, 2011, 
through January 31, 2012. Requests EPA receives after January 31, 2012, 
will not be considered for FY 2012 funding. Information that must be 
submitted with the funding request is listed in Section IX of this 
guidance. States or tribes that do not submit the request in the 
appropriate manner may forfeit their ability to receive funds. First 
time requestors are strongly encouraged to contact their Regional EPA 
Brownfields contacts, listed on the last page of this guidance, prior 
to submitting their funding request.
    Requests submitted by the January 31, 2012, request deadline are 
preliminary; final cooperative agreement work plans and budgets will be 
negotiated with the regional offices once final funding allocation 
determinations are made. As in previous years, EPA will place special 
emphasis on reviewing a cooperative agreement recipient's use of prior 
section 128(a) funding in making allocation decisions and unexpended 
balances are subject to 40 CFR 35.118 and 40 CFR 35.518 to the extent 
consistent with this guidance.
    States and tribes requesting funds are required to provide a Dun 
and Bradstreet Data Universal Numbering System (DUNS) number with their 
cooperative agreement's final package. For more information, please go 
to https://www.grants.gov.

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

[[Page 73623]]

reasonable steps to include, certain elements, and establish and 
maintain 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.
    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 in Section V of this guidance; or be a party to voluntary 
response program Memorandum of Agreement (VRP MOA) \5\ with EPA;
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    \5\ 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
    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 section 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.
    The four elements of a response program are described below:
    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. Inventories should evolve to a prioritization of sites 
based on community needs, planning priorities, and protection of human 
health and the environment.
    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 state or tribe will complete the necessary response 
activities if the person conducting the response activities fails to 
complete the necessary response activities (this includes operation and 
maintenance and/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 meaningful public comment on 
cleanup plans and site activities including the input into the 
prioritization of sites; 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 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.

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

[[Page 73624]]

completion of the response action, will be suitable for unrestricted 
use. If not, the public record must identify the institutional controls 
relied on in the remedy and include relevant information concerning the 
entity that will be responsible for oversight, monitoring, and/or 
maintenance of the institutional and engineering controls.
    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 identifying 
brownfields sites regardless of planned or completed actions there.

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\ States and tribes should ensure 
that all affected communities have appropriate access to the public 
record including making it available on-line, in print at libraries, or 
other community gathering places.
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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:
     Developing legislation, regulations, procedures, 
ordinances, guidance, etc. that establish or enhance the administrative 
and legal structure of their response programs;
     Establishing and maintaining the required public record 
described in Section VI of this guidance;
     Maintaining and monitoring institutional controls;
     Conducting 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 under CERCLA section 128(a)(2)(C)(ii) to provide for public 
comment on cleanup plans and site activities, EPA strongly encourages 
states and tribes to seek public input regarding the priority of sites 
to be 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 part of an 
overall section 128(a) work plan that includes funding for other 
activities that establish or enhance the four elements;
     Capitalizing 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 (can be in the form of a 
contribution of money, labor, material, or services from a non-federal 
source) 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; and
     Purchasing environmental insurance or developing 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, and/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

[[Page 73625]]

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 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 institutional 
controls. Other ``enhancement'' uses may be allowable as well.

D. Uses Related to Site-Specific Activities

1. Uses for Site-Specific Activities
    States and tribes may use section 128(a) funds for site-specific 
activities that improve state or tribal capacity. The amount grantees 
may request for site-specific assessments and cleanups may not exceed 
50% of the total amount of funding. A grantee may request a waiver to 
exceed the 50% of annual funding for site specific activities. In order 
for EPA to consider the waiver, the total amount of the request may not 
exceed the grantee's prior year's funding level. The funding request 
must include a brief justification describing the reason(s) for 
spending more than 50% of an annual allocation on site-specific 
activities. An applicant must include the following information in the 
written justification:
     What site specific activities will be covered by this 
funding? If known, provide site specific information and describe the 
development or enhancement of your state/tribal site specific program. 
Further explain how the community will be (or has been) involved in 
prioritization of site work and especially those sites where there is a 
potential or known significant environmental impact to the community;
     How will the core programmatic capacity (i.e., the four 
elements of a response program) and related activities be maintained in 
spite of an increase in site-specific work? Grantees must demonstrate 
that they have adequate funding from other sources to effectively carry 
out work on the four elements for EPA to grant a waiver of the 50% 
limit on using 128(a) funds for site-specific activities;
     Describe how this shift in funding towards site-specific 
work is more appropriate for your response program rather than a 
request for an increase in overall funding; and
     Are the sites to be addressed those which the affected 
community(ies) has requested an assessment (refer to Overview of 
Funding section of this notice for more information)? Please explain.
    EPA Headquarters will determine approval of waivers on the 
information that is included in the justification along with the 
request for funding, as well as other information available to the 
Agency. EPA's Regional Brownfield Coordinators will inform grantees of 
the Agency's final decision(s).
2. 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. 
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 section 101(39). EPA encourages states and tribes to use site-
specific funding to perform assessment (e.g., phase II and phase III 
assessments) and cleanup activities that will lead more quickly to the 
reuse of sites;
    b. Absent EPA approval, no more than $200,000 per site assessment 
can be funded with section 128(a) funds, and no more than $200,000 per 
site cleanup can be funded 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; and
    d. 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:
    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.
3. 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).
4. Other Eligible Uses of Funding
    Other eligible uses of funds for site-specific related include, but 
are not limited to, the following activities:
     Technical assistance to federal brownfields cooperative 
agreement recipients;
     Development and/or review of quality assurance project 
plans (QAPPs); and
     Preparation and submission of Property Profile Forms and/
or entering data into the ACRES database

E. Uses Related to 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. 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).

[[Page 73626]]

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 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 as well as applicable 
provisions of 40 CFR part 35 Subparts A and B. 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. Further, unexpended balances of cooperative 
agreement funds are subject to 40 CFR 35.118 and 40 CFR 35.518 to the 
extent consistent with this guidance. EPA allocates funds to state and 
tribal response programs under 40 CFR 35.420 and 40 CFR 35.737
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    \9\ A cooperative agreement is an agreement to a state/tribe 
that includes substantial involvement by EPA on activities described 
in the work plan which may include technical assistance, 
collaboration on program priorities, etc.
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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 section 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 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. Pre-award costs are subject to 40 CFR 35.113 and 40 CFR 35.513.

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 in Section VI and below, exists and is being maintained.\10\ 
Specifically:
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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 
FY11: Requests for FY12 funds will not be accepted from states or 
tribes that fail to demonstrate, by the January 31, 2012, 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 FY11 cooperative agreement that 
prohibited drawdown of FY11 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 FY12 
funding; and
     States or Tribes that received initial funding in FY11: By 
the time of the actual FY12 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 FY12 cooperative agreement that prevents the 
drawdown of FY12 funds until the public record requirement is met).

I. Demonstration of Significant Utilization of Prior Years' Funding

    States and tribes should be aware that EPA and its Congressional 
appropriations committees are concerned regarding the amount of 
unexpended balances of STAG categorical grants. 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 of 
cooperative agreement funds as reflected in EPA's Financial Data 
Warehouse could support an allocation amount below a grantee's request 
for funding or, if appropriate, deobligation and reallocation by EPA 
Regions as provided for in 40 CFR 35.118 and 40 CFR 35.518. Grantees 
should 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

[[Page 73627]]

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. Optional: Explanation of Overall Program Impacts of Possible Funding 
Reductions

    Please describe the effects, if any, of a 10% and 20% reduction in 
your current funding amount on significant activities of your response 
program. Specifically, where would the decrease in funding be realized 
(e.g. reduction in staff, decrease in oversight activities, or other 
impacts to the environment and health of the communities the program 
serves, etc.) in your program?

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. 
Please refer to process flow chart below:
[GRAPHIC] [TIFF OMITTED] TN29NO11.038

    For Fiscal Year 2012, EPA will consider funding requests up to a 
maximum of $1.2 million per state or tribe. Please note the CERCLA 
128(a) annual program's budget has remained static while demand for 
funding continues to increase every year.\11\ Therefore, it is likely 
that the FY12 state and tribal individual funding amounts will be less 
than the FY11 individual funding amounts.
---------------------------------------------------------------------------

    \11\ FY11 EPA received $64.9 Million in requests for funding 
from States and Tribes under CERCLA 128(a). The FY11 enacted budget 
was $49.5 Million. The resulting budget shortfall was approximately 
$ 15.4 Million.
---------------------------------------------------------------------------

    After the January 31, 2012, request deadline, EPA's 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 current year funding, funds remaining from prior 
years, etc.
    After receipt of the regional recommendations, EPA Headquarters 
will consolidate requests and allocate funds accordingly.
    In FY13 the maximum amount that EPA will consider for a funding 
request will likely decrease at a rate up to 30% a year, and could 
decrease at a greater rate depending on enacted Congressional budget 
amounts and demand for funding.

IX. Information to be Submitted With the Funding Request

A. Demonstration of Significant Utilization of Prior Years' Funding

    States and tribes requesting section 128(a) FY12 funds must submit 
the following information, as applicable, to their regional brownfield 
contact on or before January 31, 2012. If a grantee wishes to avoid an 
allocation reduction, when submitting a request for FY12 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).
    For those states and tribes that received FY10 or prior section 
128(a) funds, you must provide the amount of prior years' funding 
including FY10 funds that recipients have not received in payments 
(i.e., funds EPA has obligated for grants that remain in EPA's 
Financial Data Warehouse). EPA will take into account these funds in 
the allocation process when determining the recipient's programmatic 
needs under 40 CFR 35.420 and 40 CFR 35.737.

B. Summary of Planned Use of FY12 Funding

----------------------------------------------------------------------------------------------------------------
                                                    FY11         FY12        Summary of intended use  (example
                  Funding use                     Awarded     Requested                    uses)
----------------------------------------------------------------------------------------------------------------
All states and tribes requesting FY12 funds         $XX,XXX      $XX,XXX
 must submit a summary of the planned use of
 the funds with associated dollar amounts.
 Please provide the request in the following:
Establish or enhance the four elements:
    1. Timely survey and inventory of           ...........  ...........  1. Examples:
     brownfields sites.                                                    Inventory and prioritize
                                                                           brownfields sites.

[[Page 73628]]

 
    2. Oversight and enforcement authorities    ...........  ...........  2. Examples:
     or other mechanisms.                                                  Develop/enhance ordinances,
                                                                           regulations, procedures for response
                                                                           programs.
    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      ...........  ...........  4. Examples:
     plan and verification and certification                               Review cleanup plans and
     that cleanup is 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.
Site-specific activities (amount requested          $XX,XXX      $XX,XXX     Perform site assessments
 should be incidental to the workplan, see                                and cleanups.
 Section VII.D for more information on what                                Develop QAPPs.
 activities should be considered when                                      Prepare Property Profile
 calculating site specific activities).                                    Forms/input data into ACRES database
                                                                           for these sites.
Environmental insurance.......................      $XX,XXX      $XX,XXX     Review potential uses of
                                                                          environmental insurance.
                                                                           Manage an insurance risk
                                                                           pool.
Revolving loan fund...........................      $XX,XXX      $XX,XXX     Create a cleanup revolving
                                                                          loan fund.
        Total funding.........................     $XXX,XXX     $XXX,XXX    Performance Partnership Grant? Yes
                                                                          [squ] No [squ]
----------------------------------------------------------------------------------------------------------------

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:
     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); and
     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

[[Page 73629]]

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:
     Number and frequency of oversight audits of licensed site 
professional certified cleanups;
     Number and frequency of state/tribal oversight audits 
conducted;
     Number of sites where staff conducted audits, provided 
technical assistance, or conducted other oversight activities; and
     Number of staff conducting oversight audits, providing 
technical assistance, or conducting other oversight activities.
    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:
     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); and
    [cir] Policies and procedures to implement legal authorities; and 
other mechanisms;
     A description of the resources and staff allocated/to be 
allocated to the response program to conduct oversight and enforcement 
at sites as a result of the cooperative agreement;
     A narrative description of how these authorities or other 
mechanisms, and resources, are adequate to ensure that:
    [cir] A response action will protect human health and the 
environment; and be conducted in accordance with applicable federal and 
state law; and if the person conducting the response action fails to 
complete the necessary response activities, including operation and 
maintenance or long-term monitoring activities, the necessary response 
activities are completed; and
     A narrative description and copy of appropriate documents 
demonstrating the exercise of oversight and enforcement authorities by 
the response program at a brownfields site.
    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, 2012, a summary of 
the previous federal fiscal year's work (October 1, 2010 through 
September 30, 2011). The following information must be submitted to 
your regional project officer:
     Category(ies) of properties (or sites) that CERCLA 128(a) 
funds are used for capacity building and/or site-specific activities:

--Brownfields

--Underground Storage Tanks/Leaking Underground Storage Tanks

--Federal Facilities

--Solid Waste

--Superfund

--Hazardous Waste Facilities

--VCP (Voluntary Cleanup Program, Independent Cleanup Program, etc.)

--Other----------

     Number of properties (or sites) enrolled in a response 
program during FY11;
     Number of properties (or sites) where documentation 
indicates that cleanup work is complete and all required institutional 
controls (IC's) are in place, or not required;
     Total number of acres associated with properties (or 
sites) in the previous bullet; and
     Number of properties where assistance was provided, but 
the property was not enrolled in the response program (OPTIONAL).
    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 and inventory--estimated number of brownfields 
sites in the state or on tribal land;
    2. Oversight and 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; and
    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, and 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;
     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.); 
and
     Size of the site in acres.

[[Page 73630]]

    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;
     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.); and
     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. Register 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 visiting the D&B Web site at: https://iupdate.dnb.com/iUpdate/companylookup.htm.
    Failure to comply with these requirements will affect the 
applicant's ability to receive any funding.
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
------------------------------------------------------------------------
             Region                      State              Tribal
------------------------------------------------------------------------
                1                 James Byrne, 5      AmyJean McKeown, 5
CT, ME, MA, NH, RI, VT..........   Post Office         Post Office
                                   Square, Suite 100   Square, Suite 100
                                   (OSRR07-2),         (OSRR07-2),
                                   Boston, MA 02109-   Boston, MA 02109-
                                   3912, Phone (617)   3912, Phone (617)
                                   918-1389 Fax        918-1248 Fax
                                   (617) 918-1291.     (617) 918-1291.
                2                 John Struble, 290   John Struble, 290
NJ, NY, PR, VI..................   Broadway, 18th      Broadway, 18th
                                   Floor, New York,    Floor, New York,
                                   NY 10007, Phone     NY 10007, Phone
                                   (212) 637-4291      (212) 637-4291
                                   Fax (212) 637-      Fax (212) 637-
                                   4211.               4211.
                3                 Janice Bartel,
DE, DC, MD, PA, VA, WV..........   1650 Arch Street
                                   (3HS51),
                                   Philadelphia, PA
                                   19103, Phone
                                   (215) 814-5394
                                   Fax (215) 814-
                                   3274.
                4                 Nicole Comick-      Cindy J. Nolan, 61
AL, FL, GA, KY, MS, NC, SC, TN..   Bates, 61 Forsyth   Forsyth Street
                                   Street SW., 10TH    SW., 10TH FL
                                   FL (9T25),          (9T25), Atlanta,
                                   Atlanta, GA 30303-  GA 30303-8909,
                                   8909, Phone (404)   Phone (404) 562-
                                   562-9966 Fax        8425 Fax (404)
                                   (404) 562-8788.     562-8788.
                5                 Jan Pels, 77 West   Jane Neumann, 77
IL, IN, MI, MN, OH, WI..........   Jackson Boulevard   West Jackson
                                   (SE-7J), Chicago,   Boulevard (SE-
                                   IL 60604-3507,      7J), Chicago, IL
                                   Phone (312) 886-    60604-3507, Phone
                                   3009 Fax (312)      (312) 353-0123
                                   692-2161.           Fax (312) 697-
                                                       2649.
                6                 Amber Perry, 1445   Amber Perry, 1445
AR, LA, NM, OK, TX..............   Ross Avenue,        Ross Avenue,
                                   Suite 1200 (6SF),   Suite 1200 (6SF),
                                   Dallas, TX 75202-   Dallas, TX 75202-
                                   2733, Phone (214)   2733, Phone (214)
                                   665-3172 Fax        665-3172 Fax
                                   (214) 665-6660.     (214) 665-6660.
                7                 Susan Klein, 901    Susan Klein, 901
IA, KS, MO, NE..................   N. 5th Street       N. 5th Street
                                   (SUPRSTAR),         (SUPR