[Federal Register Volume 68, Number 236 (Tuesday, December 9, 2003)]
[Notices]
[Pages 68619-68624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30519]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7597-7]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept 
requests, from December 1, 2003, through January 31, 2004, 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.
    Since 1997, the EPA Brownfields program has funded State and tribal 
response programs including Superfund Core funding for State and tribal 
voluntary cleanup programs and pre-remedial site assessment funding for 
State- and tribal-conducted Targeted Brownfields Assessments (TBA). 
Through section 128(a), Congress built upon these activities and 
provided EPA with expanded authority to fund other activities that 
establish and enhance capacity for State and tribal response programs 
as well as authority to grant funds to States and tribes to capitalize 
revolving loan funds and support insurance mechanisms.
    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 another is to provide funding for other activities 
that increase the number of response actions

[[Page 68620]]

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 2004, EPA will consider funding requests up to a 
maximum of $1.5 million per State or tribe. EPA will target funding of 
at least $3 million for tribal response programs to ensure adequate 
funding for tribal response programs.
    Subject to the availability of funds, EPA regional enforcement and 
program staff 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, 2003. EPA expects to 
make non-competitive grant awards to States and tribes which apply 
during fiscal year 2004.

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

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

SUPPLEMENTARY INFORMATION: The Small Business Liability Relief and 
Brownfields Revitalization Act (SBLRBRA) was signed into law on January 
11, 2002. The Act amends the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), as amended, by adding section 
128(a). Section 128(a) authorizes a $50 million grant program \1\ to 
establish and enhance State \2\ and tribal \3\ response programs. 
Generally, these response programs address the assessment, cleanup and 
redevelopment of brownfields sites and other contaminated sites. 
Section 128(a) grants will be awarded and administered by U.S. 
Environmental Protection Agency (EPA) regional offices. This document 
provides guidance that will enable States and tribes to apply for and 
use section 128(a) funds in Fiscal Year 2004.
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    \1\ The Catalogue of Federal Domestic Assistance entry for the 
section 128(a) State and Tribal Response Programs grant program is 
66.817.
    \2\ The term ``State'' is defined in this document as defined in 
CERCLA section 101(27).
    \3\ 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, are also 
eligible for funding under CERCLA 128(a).
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    State and tribal response programs oversee assessment and cleanup 
activities at the majority of brownfield sites across the country. The 
depth and breadth of State and tribal response programs vary. Some 
focus solely on CERCLA related activities, while others are multi-
faceted, for example, addressing sites regulated by 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 response programs in cleaning up and 
redeveloping brownfield sites. Section 128(a) also provides EPA with an 
opportunity to strengthen its partnership with States and tribes.
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    \4\ The Small Business Liability Relief and Brownfields 
Revitalization Act (SBLRBRA) was signed into law on January 11, 
2002. The Act amends the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), as amended, by adding 
section 128(a).
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    Since 1997, the EPA Brownfields program has been funding State and 
tribal response programs including Superfund Core funding for State and 
tribal voluntary cleanup programs and pre-remedial site assessment 
funding for State- and tribal-conducted Targeted Brownfields 
Assessments (TBA). Both activities were financed with Superfund 
appropriations and funded under CERCLA section 104(d) cooperative 
agreement authority. Through section 128(a), Congress built upon these 
activities and provided EPA with expanded authority to fund other 
activities that build capacity for State and tribal response programs 
as well as authority to grant funds to States and Indian tribes to 
capitalize revolving loan funds and support insurance mechanisms. 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 another 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 cleanup 
capacity.
    Subject to the availability of funds, EPA regional enforcement and 
program staff will be available to provide technical assistance to 
States and Indian tribes as they apply for and carry out section 128(a) 
grants.

Eligibility for Funding

    To be eligible for funding under CERCLA section 128(a), a State or 
tribe must:
    [sbull] Demonstrate that their response program includes, or is 
taking reasonable steps to include, the four elements of a response 
program, described below; or be a party to voluntary response program 
Memorandum of Agreement (MOA)\5\ with EPA;
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    \5\ The legislative history of SBLRBRA 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 
voluntary response program MOAs are automatically eligible for 
section 128(a) funding. A list of States that have signed CERCLA VCP 
MOAs with EPA can be found at www.epa.gov/brownfields/gdc.htm#vc.

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and

    [sbull] 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).

    Note: Failure to meet these requirement will result in a denial 
of funding for FY04).

    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), States and tribes are not required to provide matching funds 
for grants awarded under section 128(a).

The Four Elements--Section 128(a)

    Section 128(a) requires States or tribes to demonstrate that their 
response program includes, or is taking reasonable steps to include, 
four elements. Section 128(a) also authorizes funding for activities 
necessary to establish and enhance the four elements and to establish 
and maintain the public record requirement. Generally, the four 
elements are:
    Timely survey and inventory of brownfield sites in State or tribal 
land. States and tribes must include, or be taking reasonable steps to 
include, in their response programs a system or process to identify the 
universe of brownfield sites in their 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 brownfield sites in their State or tribal lands. 
Given funding limitations, EPA will negotiate work plans with States 
and tribes to achieve this goal efficiently, effectively and within a 
realistic time frame. For example, many

[[Page 68621]]

of EPA's Brownfields Assessment grantees conduct inventories of 
brownfield sites in their communities or jurisdictions. EPA encourages 
States and tribes to work with these grantees to obtain the information 
that they have gathered and include it in their survey and inventory.
    Oversight and enforcement authorities or other mechanisms and 
resources. State and tribal response programs must include, or be 
taking reasonable steps to include, oversight and enforcement 
authorities or other mechanisms, and resources that are adequate to 
ensure that:
    [sbull] A response action will protect human health and the 
environment and be conducted in accordance with applicable Federal and 
State law; and
    [sbull] The necessary response activities are completed if the 
person conducting the response activities fails to complete the 
necessary response activities (this includes operation and maintenance 
or long-term monitoring activities).
    Mechanisms and resources to provide meaningful opportunities for 
public participation.\6\ States and tribes must include, or be taking 
reasonable steps to include, in their response program mechanisms and 
resources for public participation, 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 http://www.epa.gov/superfund/action/community/index.htm.
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    [sbull] 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;
    [sbull] Prior notice and opportunity for public comment on cleanup 
plans and site activity; and
    [sbull] A mechanism by which a person who is, or may be, affected 
by a release or threatened release of a hazardous substance, pollutant, 
or contaminant at a brownfields site--located in the community in which 
the person works or resides--may request that a site assessment be 
conducted. The appropriate State or tribal official must consider this 
request and appropriately respond.
    Mechanisms for approval of a cleanup plan and verification and 
certification that cleanup is complete. States and tribes must include, 
or be taking reasonable steps to include, in their response programs 
mechanisms to approve cleanup plans. In addition States and tribes must 
include, or be taking reasonable steps to include, in their response 
programs a requirement for verification by and certification or similar 
documentation from the State, the tribe, or a licensed site 
professional to the person conducting a response action indicating that 
the response action is complete. Written approval by a State or tribal 
response program official of a proposed cleanup plan is an example of 
an approval mechanism.

Public Record Requirement

    States and tribes (including those with MOAs) that received section 
128(a) funding in FY03 must have established and maintained a public 
record system, described below, in order to receive funds in FY04. 
Failure to comply with this statutory requirement will result in a 
denial of funding for FY04 (this includes funding through an 
incremental grant funding mechanism). Recipients receiving section 
128(a) funding for the first time in FY04 must demonstrate, to be 
eligible for funding in FY05, that they established and maintained the 
public record, as described below.
    Specifically, under section 128(b)(1)(C), States and tribes must:
    [sbull] 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;
    [sbull] 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
    [sbull] Identify in the public record whether or not the site, upon 
completion of the response action, will be suitable for unrestricted 
use. If not, the public record must identify the institutional controls 
relied on in the remedy.
    Section 128(a) funds may be used to maintain and make available a 
public record system that meets the requirements discussed above.
    Distinguishing the ``survey and inventory'' element from the 
``public record.'' It is important to note that the public record 
requirement differs from the ``timely survey and inventory'' element 
described in the ``Four Elements'' section above. The public record 
addresses sites at which response actions have been completed in the 
previous year and are planned to be addressed in the upcoming year. In 
contrast, the ``timely survey and inventory'' element, described above, 
refers to a general approach to identifying brownfield sites.
    Making the public record easily accessible. EPA's goal is to enable 
States and tribes to make the public record and other information, such 
as information from the ``survey and inventory'' element, easily 
accessible. For this reason, EPA will allow States and tribes to use 
section 128(a) funding to make the public record, as well as other 
information, such as information from the ``survey and inventory'' 
element, available to the public via the internet or other means. For 
example, the Agency would support funding State and tribal efforts to 
include detailed location information in the public record such as the 
street address and latitude and longitude information for each site.\7\ 
A State or tribe may also choose to use the section 128(a) funds to 
make their survey and inventory information available on the Internet 
as well.
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    \7\ For further information on latitude and longitude 
information, please see EPA's data standards Web site available at 
http://oaspub.epa.gov/edr/epastd$.startup.
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    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 
http://www.epa.gov/superfund/action/ic/index.htm.
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Use of Funding

Overview

    Section 128(a)(1)(B) describes the eligible uses of grants funding 
by States and tribes. In general, a State or tribe may use a grant to 
``establish or enhance'' their response programs, including elements of 
the response program that include activities related to responses at 
brownfield sites with petroleum contamination. States and tribes may 
use section 128(a) funding to, among other things:
    [sbull] Develop legislation, regulations, procedures, guidance, 
etc. that would establish or enhance the administrative and legal 
structure of their response programs;
    [sbull] 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 grant 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

[[Page 68622]]

the RLF, a prohibition on using EPA grant 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;
    [sbull] Purchase 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;
    [sbull] Establish and maintain the required public record described 
in section B above. EPA considers activities related to maintaining and 
monitoring institutional controls to be eligible costs under section 
128(a); or
    [sbull] Conduct limited site-specific activities, such as 
assessment or cleanup, provided such activities are secondary to the 
primary use of the funds, i.e., to establish and enhance the response 
program, and are tied to the four elements.

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, procedures, or guidance. For more developed State 
or tribal response programs, establish may also include activities that 
keep their program at a level that meets the four elements and 
maintains a public record required as a condition of funding under 
CERCLA section 128(b)(1)(C).

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

    Under CERCLA section 128(a), ``enhance'' is related to activities 
that add to or improve a State or tribal response program or increase 
the number of sites at which response actions are conducted under a 
State or tribal response program. The legislative history of the 
provision also makes this clear:

The vast majority of contaminated sites across the nation will not 
be cleaned up by the Superfund program. Instead, most sites will be 
cleaned up under State authority. * * * In recognition of this fact, 
and the need to create and improve State cleanup capacity, new 
[Section 128(a)] provides financial assistance to states and tribes 
to establish or enhance voluntary response programs.

Senate Report 107-2, March 12, 2001, p. 15.
    The exact ``enhancement'' uses that may be allowable depend upon 
the work plan negotiated between the EPA regional office and the State 
or tribe. For example, regional offices and States or tribes may agree 
that section 128(a) funds may be used for outreach and training 
directly related to increasing awareness of its response program, and 
improving the skills of program staff. It may also include developing 
better coordination and understanding of other State response programs, 
e.g., RCRA or USTs. Other ``enhancement'' uses may be allowable as 
well.

Uses Related to Site-Specific Activities

    States and tribes may use section 128(a) funds for activities that 
improve State or tribal capacity to increase the number of sites at 
which response actions are conducted under the State or tribal response 
program. Eligible uses of funds include limited site-specific related 
activities such as conducting assessments or cleanups at brownfields 
sites. Site-specific activities should be secondary to the primary use 
of the funds, i.e., to establish and enhance the response program, and 
tied to the elements.
    Site-specific assessments and cleanups must comply with all 
applicable Federal and State laws and are subject to the following 
restrictions:
    [sbull] No more than $200,000 per site can be funded for 
assessments, and no more than $200,000 per site can be funded for 
cleanups.
    [sbull] Absent EPA approval, the recipient may not use funds 
awarded under this agreement to assess and clean up sites owned by the 
recipient.
    [sbull] Assessments and cleanups cannot be conducted at sites where 
the recipient itself is a potentially responsible party pursuant to 
CERCLA section 107, except for at brownfields sites contaminated by a 
controlled substance as defined in CERCLA section 101(39)(D)(ii)(I).
    [sbull] 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.
    [sbull] Section 128(a) funds cannot be used for assessments or 
cleanups at sites that do not meet the definition of a brownfield site 
at CERCLA 101(39).
    However, costs incurred for oversight of cleanups at other than 
brownfields sites may be eligible and allowable costs if such 
activities are included in the State's or tribe's work plan. For 
example, auditing of completed site cleanups in States or tribes that 
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.

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 limited 
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) RLF 
program.

Grant Mechanism and Process for Awarding Funding

    Funding authorized under CERCLA section 128(a) will be awarded 
through a cooperative agreement \9\ with a State or tribe. The program 
will be 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 grantee for section 128(a) grant program is:

    \9\ A cooperative agreement is a grant 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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    The government to which a grant is awarded and which is 
accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the 
entity is designated in the grant award document.

40 CFR 31.3 Grantee
    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

[[Page 68623]]

one application from each eligible State or tribe. States and tribes 
must define the ``section 128(a) response program,'' and may designate 
a component of the State or tribe that will be EPA's primary point of 
contact for negotiations on their proposed work plan. When EPA funds 
the section 128(a) cooperative agreement, States and tribes may 
distribute these funds among the appropriate State and tribal agencies 
that are part of the section 128(a) response program. This distribution 
must be clearly outlined in their annual work plan.
    Separate cooperative agreements for the capitalization of RLFs 
using section 128(a) funds. If a portion of the128(a) grant funds 
requested will be used to capitalize a revolving loan fund for cleanup, 
pursuant to 104(k)(3), two separate cooperative agreements must be 
awarded, i.e., one for the RLF and one for non-RLF uses. States and 
tribes may, however, submit one initial request for funding, 
delineating the RLF as a proposed use.
    Authority to Manage a Revolving Loan Fund Program. If a State or 
tribes 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) grant does not have this authority, it 
must be able to demonstrate that another State or tribal agency does 
have the authority to manage the RLF and is willing to do so.
    Section 128(a) grants are eligible for inclusion in the Performance 
Partnership Grant (PPG). EPA is considering a pilot project that will 
allow an appropriate number of States and tribes to include section 
128(a) grants in the PPG in FY 2004. For FY 2004, no more than one 
State and one tribe or Intertribal Consortium per Region, absent 
approval from the Assistant Administrator, Office of Solid Waste and 
Emergency Response (OSWER) and the Associate Administrator, Office of 
Congressional and Intergovernmental Relations (OCIR), will be permitted 
to include their 128(a) grant funds in the PPG. EPA will establish a 
process and criteria for determining, in consultation with the States 
and tribes, whether PPGs are an efficient and effective means of 
carrying out the section 128(a) program on a long-term national basis. 
Section 128(a) funds used to capitalize an RLF will not be eligible for 
inclusion in the PPG.
    Project Period. EPA regional offices will determine the project 
period for each cooperative agreement. These may be for multiple years 
depending on the regional office's grants policies. Each cooperative 
agreement must have an annual budget period tied to an annual work 
plan.
    Demonstrating the Four Elements. As part of the annual work plan 
negotiation process, States or tribes that do not have MOAs must 
demonstrate that their program includes, or is taking reasonable steps 
to include, the four elements described above. EPA will not fund, in 
future years, State or tribal response program annual work plans if EPA 
determines that these requirements are not met or reasonable progress 
is not being made. EPA may base this determination on the information 
the State or tribe provides to support its work plan, or on EPA's 
review of the State or tribal response program.
    Establishing and Maintaining the Public Record. Prior to funding a 
State's or tribe's annual work plan, EPA regional offices will verify 
that a public record as described above exists, and is being 
maintained. Recipients receiving funds for the first time in FY04 will 
have one year to meet this requirement and may utilize the 128(a) grant 
funds to do so.
    Demonstration of Need to Receive Funds above the FY03 Funding 
Distribution. Due to the limited amount of funding available, 
recipients must demonstrate a specific need when requesting an amount 
above the FY03 allocation. Regions also will review the recipient's 
utilization rates from the previous fiscal years to determine need in 
FY04.

Allocation System for Distribution of Funding

    EPA regional offices will work with interested States and tribes to 
develop their annual work plans and funding requests. For Fiscal Year 
2004, EPA will consider funding requests up to a maximum of $1.5 
million per State or tribe. This limit may be changed in future years 
based on appropriation amounts and demand for funding. The EPA regional 
offices will forward each of the funding request amounts and a short 
summary of the work plan activities to EPA Headquarters. Based on the 
availability of funds, EPA Headquarters will compile the requested 
amounts and develop the annual allocation based on State and tribal 
response program needs described in the work plan summaries.
    When EPA Regions negotiate individual State and tribal work plans, 
it is anticipated that funding will be prioritized as follows:
    [sbull] Funding for program development activities to establish or 
enhance the four elements of a State or tribal response program and to 
enable States and tribes to comply with the public record requirement, 
including activities related to institutional controls. (States and 
tribes that have established one or more of the four elements will not 
be prejudiced in funding distributions if their work plan includes 
activities that enhance the four elements. States with MOA's will not 
be prejudiced in funding distributions if their work plan does not 
include tasks related to establishing or enhancing the four elements.)
    [sbull] Funding for program development activities to enhance the 
response program or the cleanup capacity of a State or tribal response 
program.
    [sbull] Funding for limited site-specific activities at eligible 
brownfields sites.
    [sbull] Funding for environmental insurance mechanisms.
    [sbull] Funding to capitalize brownfields cleanup revolving loan 
funds.
    States and tribes must break their work plans down into these 
prioritization categories.
    EPA will target funding of at least $3 million per year for tribal 
response programs. If this funding is not used, it will be carried over 
and added to at least $3 million in the next fiscal year. It is 
expected that the funding demand from tribes will increase through the 
life of this grant program (authorized by Congress through FY2006), and 
this funding allocation system should ensure that adequate funding for 
tribal response programs is available in future years.

Terms and Reporting

    Cooperative agreements for State and tribal response programs will 
include programmatic and administrative terms and conditions. These 
terms and conditions will describe EPA's substantial involvement 
including technical assistance and collaboration on program development 
and site-specific activities.
    Progress Reports. States and tribes will provide progress reports 
under 40 CFR 31.40, in accordance with 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) grant. 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 
with 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

[[Page 68624]]

relating to establishing and maintaining the public record.
    Reporting Requirements. Depending upon the activities included in 
the State's or tribe's work plan, an EPA regional office may request 
that a progress report include:
    Information related to the public record. All recipients must 
report information related to establishing and maintaining the public 
record, described above. States and tribes can refer to already 
existing public record, e.g., Web site or other public database to meet 
this requirement. For the purposes of grant funding only, and depending 
upon the activities included in the State or tribe's work plan, this 
may include:
    [sbull] A list of sites at which response actions have been 
completed including:
    [sbull] Date the response action was completed;
    [sbull] Site name, the name of owner at time of cleanup, and the 
type of brownfields site (e.g., petroleum, methamphetamine laboratory, 
mine scarred lands);
    [sbull] Location of the site (street address, and latitude and 
longitude);
    [sbull] Whether an institutional control is in place;
    [sbull] Explain the type of the institutional control in place 
(e.g., deed restriction);
    [sbull] Nature of the contamination at the site (e.g., hazardous 
substances, contaminants, or pollutants, petroleum contamination, 
etc.);
    [sbull] Size of the site in acres.

    [sbull] A list of sites planned to be addressed by the state or 
tribal response program including:
    [sbull] Site name, the name of owner at time of cleanup, and the 
type of brownfields site (e.g., petroleum, methamphetamine laboratory, 
mine scarred lands);
    [sbull] Location of the site (street address, and latitude and 
longitude);
    [sbull] To the extent known, whether an institutional control is in 
place;
    [sbull] Explain the type of the institutional control in place 
(e.g., deed restriction);
    [sbull] To the extent known, the nature of the contamination at the 
site (e.g., hazardous substances, contaminants, or pollutants, 
petroleum contamination, etc.);
    [sbull] Size of the site in acres.
    Reporting environmental insurance. Recipients with work plans that 
include funding for environmental insurance must report:
    [sbull] Number and description of insurance policies purchased 
(e.g., type of coverage provided; dollar limits of coverage; category 
and identity of insured persons; premium; first dollar or umbrella; 
site specific or blanket; occurrence or claims made, etc.);
    [sbull] The number of sites covered by the insurance;
    [sbull] 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.
    Reporting for site-specific assessment or cleanup activities. 
Recipients with work plans that include funding for brownfields site 
assessments or cleanup must report a list of sites at which site 
assessments or cleanup have been completed that includes:
    [sbull] Site name;
    [sbull] Location of the site (street address and latitude and 
longitude);
    [sbull] Size of the site in acres;
    [sbull] Date the assessment or cleanup was completed;
    [sbull] Nature of contamination at the site (e.g., hazardous 
substances, contaminants, or pollutants, petroleum contamination, 
etc.).
    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:
    [sbull] Number and frequency of oversight audits of licensed site 
professional certified cleanups;
    [sbull] Number and frequency of State/tribal oversight audits 
conducted;
    [sbull] Number of sites where staff conducted audits, provided 
technical assistance, or conducted other oversight activities;
    [sbull] Number of staff conducting oversight audits, providing 
technical assistance, or conducting other oversight activities.
    Reporting for RLF uses. Recipients with work plans that include 
funding for Revolving Loan Fund (RLF) must include the information 
required by the terms and conditions for progress reporting under 
CERCLA section 104(k)(3) RLF grants.
    Reporting for Non-MOA States and tribes. All recipients without a 
Voluntary Response Program 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:
    [sbull] A narrative description and copies of applicable documents 
developed or under development to enable the response program to 
conduct enforcement and oversight at brownfield sites. For example:
    [sbull] Legal authorities and mechanisms (e.g., statutes, 
regulations, orders, agreements);
    [sbull] Policies and procedures to implement legal authorities; and
    [sbull] Other mechanisms;
    [sbull] A description of the resources and staff allocated/to be 
allocated to the response program to conduct oversight and enforcement 
at brownfield sites as a result of the grant;
    [sbull] A narrative description of how these authorities or other 
mechanisms, and resources, are adequate to ensure that:
    [sbull] A response action will:
    [sbull] Protect human health and the environment; and
    [sbull] Be conducted in accordance with applicable Federal and 
State law; and
    [sbull] 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
    [sbull] A narrative description and copy of appropriate documents 
demonstrating the exercise of oversight and enforcement authorities by 
the response program at a brownfield site.
    Where applicable, EPA may require States/tribes to report specific 
performance measures related to the four elements which can be 
aggregated for national reporting to Congress.
    The regional offices may also request other information be added to 
the progress reports, as appropriate, to properly document activities 
described by the cooperative agreement work plan.
    EPA regions may allow States or tribes to provide performance data 
in appropriate electronic format.
    The regional offices will forward progress reports to EPA 
Headquarters, if requested. This information may be used to develop 
national reports on the outcomes of CERCLA section 128(a) funding to 
States and tribes.

    Dated: November 25, 2003.
Linda Garczynski,
Director, Office of Brownfields Cleanup and Redevelopment, Office of 
Solid Waste and Emergency Response.
[FR Doc. 03-30519 Filed 12-8-03; 8:45 am]
BILLING CODE 6560-50-P