[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Notices]
[Pages 60512-60519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20823]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7984-5]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept 
requests, from December 1, 2005 through January 31, 2006, 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

[[Page 60513]]

response programs. Instead, it is to supplement their funding to 
increase their response capacity.
    For fiscal year 2006, EPA will consider funding requests up to a 
maximum of $1.5 million per state or tribe. Subject to the availability 
of funds, EPA regional personnel will be available to provide technical 
assistance to states and tribes as they apply for and carry out these 
grants.

DATES: This action is effective as of December 1, 2005. EPA expects to 
make non-competitive grant awards to states and tribes which apply 
during fiscal year 2006.

ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA 
Headquarters are as follows:

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            Region                    States          Mailing address
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EPA Region 1; Diane Kelley....  CT, ME, MA, NH,    One Congress Street,
                                 RI, VT.            Boston, MA 02114-
                                                    2023.
EPA Region 2; Larry D'Andrea..  NJ, NY, PR, VI...  290 Broadway, 18th
                                                    Floor, New York, NY
                                                    10007.
EPA Region 3; Tom Stolle......  DE, DC, MD, PA,    1650 Arch Street,
                                 VA, WV.            Philadelphia, PA
                                                    19103.
EPA Region 4; Rosemary Patton.  AL, FL, GA, KY,    Atlanta Federal
                                 MS, NC, SC, TN.    Center, 61 Forsyth
                                                    Street, Atlanta, GA
                                                    30303.
EPA Region 5; Deborah Orr.....  IL, IN, MI, MN,    77 West Jackson
                                 OH, WI.            Blvd., Chicago, IL
                                                    60604-3507.
EPA Region 6; Stan Hitt.......  AR, LA, NM, OK,    1445 Ross Ave., Suite
                                 TX.                1200, (6SF-PB),
                                                    Dallas, TX 75202-
                                                    2733.
EPA Region 7; Jim Callier.....  IA, KS, MO, NE...  901 N. 5th Street,
                                                    Kansas City, KS
                                                    66101.
EPA Region 8; Kathie Atencio..  CO, MT, ND, SD,    999 18th Street,
                                 UT, WY.            Suite 300 (EPR-B),
                                                    Denver, CO 80202-
                                                    2406.
EPA Region 9; Carolyn Douglas.  AZ, CA, HI, NV,    75 Hawthorne Street,
                                 AS, GU.            SFD 1-1, San
                                                    Francisco, CA 94015.
EPA Region 10; Timothy          AK, ID, OR, WA...  1200 Sixth Avenue
 Brincefield.                                       (ECL-112), Seattle,
                                                    WA 98101.
Headquarters; Jennifer Millett  .................  U.S. EPA, Office of
 Wilbur.                                            Brownfields Cleanup
                                                    & Redevelopment.
                                                    1200 Pennsylvania
                                                    Ave., NW, MC 5105T,
                                                    Washington, DC
                                                    20460.
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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 2006.
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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 section 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 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 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 CERCLA by adding section 128(a).
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    The primary goal of this funding is to ensure that state and tribal 
response programs include, or are taking reasonable steps to include, 
certain elements and a ``public record.'' The secondary goal is to 
provide funding for other activities that increase the number of 
response actions conducted or overseen by a state or tribal response 
program. This funding is not intended to supplant current state or 
tribal funding for their response programs. Instead, it is to 
supplement their funding to increase their response program's capacity.
    Subject to the availability of funds, EPA will be available to 
provide technical assistance to states and 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:
     Demonstrate that their response program includes, or is 
taking reasonable steps to include, the four elements of a response 
program, described below; or (b) be a party to voluntary response 
program Memorandum of Agreement (VRP MOA) \5\ with EPA; AND
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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 
VRP MOAs and that maintain and make available a public record are 
automatically eligible for section 128(a) funding.
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     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).

Matching Funds/Cost-Share

    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), 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) recipients that do not have a VRP MOA with EPA, must

[[Page 60514]]

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. 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.
    EPA recognizes the varied scope of state and tribal response 
programs and will not require states and tribes to develop a ``list'' 
of brownfields sites. However, at a minimum, the state or tribe should 
develop and/or maintain a system or process that can provide a 
reasonable estimate of the number, likely location, and general 
characteristics of brownfields sites within their state or tribal 
lands.
    Given funding limitations, EPA will negotiate work plans with 
states and tribes to achieve this goal efficiently and effectively, and 
within a realistic time frame. For example, many of EPA's Brownfields 
Assessment 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. EPA's goal in funding activities under this element is to 
have state and tribal response programs that include oversight and 
enforcement authorities or other mechanisms, and resources that are 
adequate to ensure that a response action will protect human health and 
the environment and be conducted in accordance with applicable federal 
and state law; and the necessary response activities are completed if 
the person conducting the response activities fails to complete the 
necessary response activities (this includes operation and maintenance 
or long-term monitoring activities).
    Mechanisms and resources to provide meaningful opportunities for 
public participation.\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 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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     Public access to documents and related materials that a 
state, tribe, or party conducting the cleanup is relying on or 
developing in making cleanup decisions or conducting site activities;
     Prior notice and opportunity for public comment on cleanup 
plans and site activity; and
     A mechanism by which a person who is, or may be, affected 
by a release or threatened release of a hazardous substance, pollutant, 
or contaminant at a brownfields site--located in the community in which 
the person works or resides--may request that a site assessment be 
conducted. The appropriate state or tribal official must consider this 
request and appropriately respond.
    Mechanisms for approval of a cleanup plan and verification and 
certification that cleanup is complete. EPA's goal in funding 
activities under this element is to have states and tribes include in 
their response program mechanisms to approve cleanup plans and to 
verify that response actions are complete, including a requirement for 
certification or similar documentation from the state, the tribe, or a 
licensed site professional to the person conducting the response action 
that the response action is complete. Written approval by a state or 
tribal response program official of a proposed cleanup plan is an 
example of an approval mechanism.

Public Record Requirement

    In order to be eligible for section 128(a) funding, states and 
tribes (including those with MOAs) must establish and maintain a public 
record system, described below, in order to receive funds. Recipients 
receiving section 128(a) funding for the first time in FY06 must 
demonstrate that they established and maintained the public record, as 
describe below, to be eligible for funding in FY07.
    Specifically, under section 128(b)(1)(C), states and tribes must:
     Maintain and update, at least annually or more often as 
appropriate, a record of sites that includes the name and location of 
sites at which response actions have been completed during the previous 
year;
     Maintain and update, at least annually or more often as 
appropriate, a record of sites that includes the name and location of 
sites at which response actions are planned to be addressed in the next 
year; and
     Identify in the public record whether or not the site, 
upon completion of the response action, will be suitable for 
unrestricted use. If not, the public record must identify the 
institutional controls relied on in the remedy.
    Section 128(a) funds may be used to maintain and make available a 
public record system that meets the requirements discussed above.
    Distinguishing the ``survey and inventory'' element from the 
``public record.'' It is important to note that the public record 
requirement differs from the ``timely survey and inventory'' element 
described in the ``Four Elements'' section above. The public record 
addresses sites at which response actions have been completed in the 
previous year and are planned to be addressed in the upcoming year. In 
contrast, the ``timely survey and inventory'' element, described above, 
refers to a general approach to identifying 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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    In an effort to reduce grant 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 grant funding only, deem the 
public record reporting requirement met.
    Long-term maintenance of the public record. EPA encourages states 
and tribes to maintain public record information, including data on 
institutional controls, on a long term basis (more than one year) for 
sites at which a response action

[[Page 60515]]

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 grant 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:
     Develop legislation, regulations, procedures, ordinances, 
guidance, etc. that would establish or enhance the administrative and 
legal structure of their response programs;
     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% 
match on the amount of section 128(a) funds used for 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;
     Purchase environmental insurance or develop a risk-sharing 
pool, indemnity pool, or insurance mechanism to provide financing for 
response actions under a state or tribal response program;
     Establish and maintain the required public record 
described above. EPA considers activities related to maintaining and 
monitoring institutional controls to be eligible costs under section 
128(a); or
     Conduct limited site-specific activities, such as 
assessment or cleanup, provided such activities establish and/or 
enhance the response program and are tied to the four elements.

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

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

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

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

Uses Related to Site-Specific Activities

    States and tribes may use section 128(a) funds for activities that 
improve state or tribal capacity to increase the number of sites at 
which response actions are conducted under the state or tribal response 
program.
    Eligible uses of funds include, but are not limited to, site-
specific activities such as: oversight of response action; technical 
assistance to federal brownfields grant recipients; development and/or 
review of site-specific quality assurance project plans (QAPPs); 
preparation and submission of Property Profile Forms; auditing site 
cleanups to verify the completion of the cleanup; conducting 
assessments or cleanups at brownfields sites.

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 
federal and state laws and are subject to the following restrictions:
     Section 128(a) funds can only be used for assessments or 
cleanups at sites that meet the definition of a brownfield site at 
CERCLA section 101(39).
     No more than $200,000 per site can be funded for 
assessments with section 128(a) funds, and no more than $200,000 per 
site can be funded for cleanups with section 128(a) funds.
     Absent EPA approval, the state/tribe may not use funds 
awarded under this agreement to assess and clean up sites owned by the 
recipient.
     Assessments and cleanups cannot be conducted at sites 
where the state/tribe is a potentially responsible party pursuant to 
CERCLA section 107, except at brownfields sites contaminated by a 
controlled substance as defined in CERCLA section 101(39)(D)(ii)(I).
     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.

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

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

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

[[Page 60516]]

allowable if the activity is included in the work plan negotiated 
between the EPA regional office and the state or tribe. Section 128(a) 
funds used to capitalize a Brownfields RLF may be used at brownfields 
sites contaminated by petroleum to the extent allowed under the CERCLA 
section 104(k)(3) RLF program.

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. Under these regulations, the 
grantee for section 128(a) grant program is: ``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.
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    \9\ A cooperative agreement is a grant to a state or a tribe 
includes substantial involvement of EPA regional enforcement and 
program staff during performance of activities described in the 
cooperative agreement work plan. Examples of this involvement 
include technical assistance and collaboration on program 
development and site-specific activities.
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    One application per state or tribe. Subject to the availability of 
funds, EPA regional offices will negotiate and enter into section 
128(a) cooperative agreements with eligible and interested states or 
tribes. EPA will accept only one application from each eligible state 
or tribe.
    Define the State or Tribal Response Program. States and tribes must 
define in their work plan the ``section 128(a) response program(s)'' to 
which the funds will be applied, and may designate a component of the 
state or tribe that will be EPA's primary point of contact for 
negotiations on their proposed work plan. When EPA funds the section 
128(a) cooperative agreement, states and tribes may distribute these 
funds among the appropriate state and tribal agencies that are part of 
the section 128(a) response program. This distribution must be clearly 
outlined in their annual work plan.
    Separate cooperative agreements for the capitalization of RLFs 
using section 128(a) funds. If a portion of 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).
    Authority to Manage a Revolving Loan Fund Program. If a state or 
tribes 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) 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). States and tribes may include section 128(a) 
grants in their PPG. (69 FR 51756 (2004)) Section 128(a) funds used to 
capitalize an RLF are not eligible for inclusion in the PPG.
    Project Period. EPA regional offices will determine the project 
period for each cooperative agreement. These may be for multiple years 
depending on the regional office's 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 
and document that a public record, as described above, exists and is 
being maintained.\10\
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    \10\ For purposes of grant 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 in FY03 and 
FY04: FY06 requests will not be accepted from states or tribes that 
fail to demonstrate, by the January 31, 2006 request deadline, that 
they established and maintaining a public record. (Note, this would 
potentially impact any state or tribe that had a term and condition 
placed on their FY05 grant award that prohibited drawdown of FY05 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 FY06 funding.
     States or Tribes that received initial funding in FY05: By 
the time of the actual FY06 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 FY06 grant that prevents the drawdown of FY06 
funds until the public record requirement is met).
     Recipients receiving funds for the first time in FY06: 
These recipients have one year to meet this requirement and may utilize 
the section 128(a) grant funds to do so.

Demonstration of Significant Utilization of Prior Years Funding

    During the allocation process, EPA headquarters places significant 
emphasis on the utilization of prior years' funding. When submitting 
your FY06 request, the following information must be submitted:
     For those states and tribes with active Superfund VCP Core 
or Targeted Brownfields Assessment cooperative agreements awarded under 
CERCLA section 104(d), you must provide, by agreement number, the 
amount of funds that have not been requested for reimbursement (i.e., 
those funds that remain in EPA's Financial Data Warehouse) and must 
provide a detailed explanation and justification for why such funds 
should not be considered in the funding allocation process.
     For those states and tribes that received section 128 
funds in FY03 and 04, you must provide the amount of FY03 and FY04 
funds that have not been requested for reimbursement (i.e, those funds 
that remain in EPA's Financial Data Warehouse) and must provide a 
detailed explanation and justification for why such funds should not be 
considered in the funding allocation process.

    Note: EPA Regional staff will review EPA's Financial Database 
Warehouse to confirm the amount of outstanding funds reported. It is 
strongly recommended that you work with your regional counterpart to 
determine the

[[Page 60517]]

amount of funds ``outstanding.'' In making this determination, EPA 
will take into account those funds that have been committed through 
an appropriate state or tribal contract, inter-agency agreement, or 
similar type of binding agreement, but have not been requested for 
reimbursement, i.e., that are not showing as ``drawn down'' in EPA's 
Data Warehouse.

Demonstration of Need To Receive Funds above the FY05 Funding 
Distribution

    Due to the limited amount of funding available, recipients must 
demonstrate a specific need when requesting an amount above the amount 
allocated to the state or tribe in FY05.

Allocation System and Process for Distribution of Fund

    EPA regional offices will work with interested states and tribes to 
develop their annual work plans and funding requests. For Fiscal Year 
2006, 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.
    After the January 31, 2006 deadline, regional offices will submit 
summaries of state and tribal requests to EPA headquarters. Before 
submitting requests to EPA headquarters, Regional offices may take into 
account additional factors when determining recommended allocation 
amounts. Such factors include, but are not limited to, the depth and 
breadth of the state or tribal program; scope of the perceived need for 
the funding, e.g., size of state or tribal jurisdiction or the proposed 
work plan balanced against capacity of the program, amount of prior 
funding, and funds remaining from prior years, etc.
    After receipt of the Regional recommendations, EPA headquarters 
will consolidate requests and allocate funds accordingly.

Information To Be Submitted With the Funding Request

    States and tribes requesting section 128 funds for FY06 must submit 
the following information, as applicable, to their regional contact on 
or before January 31, 2006 (Regions may requests additional 
information, as needed):
     For those states and tribes with prior Superfund VCP Core 
or Targeted Brownfields funding awarded under CERCLA section 104(d), 
provide, by agreement number, the amount of funds that have not been 
requested for reimbursement (i.e., those funds that remain in EPA's 
Financial Data Warehouse) and a detailed explanation and justification 
for why such funds should not be considered in the funding allocation 
process.
     For those states and tribes that received an FY03 and/or 
FY04 128 allocation, provide the amount of FY03 and/or FY04 funds that 
have not been requested for reimbursement (i.e, those funds that remain 
in EPA's Financial Data Warehouse) and a detailed explanation and 
justification for why such funds should not be considered in the 
funding allocation process.
     For those states and tribes requesting amounts above their 
FY05 allocation, provide an explanation of the specific need(s) that 
triggered the request for increased funding.
     All states and tribes requesting funds for FY06 must 
submit a summary of the planned use of the funds with associated dollar 
amounts. Please provide it in the following format, if possible:

----------------------------------------------------------------------------------------------------------------
                                                                              Summary of intended use (example
                 Funding use                        Requested amount                        uses)
----------------------------------------------------------------------------------------------------------------
``Establish or Enhance'' the four elements..                       $XX,XXX  --Develop a community involvement
                                                                             process.
                                                                            --Fund an outreach coordinator.
                                                                            --Develop/enhance ordinances,
                                                                             regulations, procedures for
                                                                             response programs.
                                                                            --Issue public notices of site
                                                                             activities.
                                                                            --Review cleanup plans and verify
                                                                             completed actions.
Establish and Maintain the Public Record....                        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 or Cleanup                           XX,XXX  --Hire additional staff for
 Capacity''.                                                                 oversight of brownfields cleanups.
                                                                            --Attend training and conferences on
                                                                             brownfields cleanup technologies
                                                                             and other brownfields topics.
                                                                            --Perform program management
                                                                             activities.
                                                                            --Negotiate/manage contracts for
                                                                             response programs.
                                                                            --Enhance program management and
                                                                             tracking systems.
Site-specific Activities....................                        XX,XXX  --Perform 10 site assessments in
                                                                             rural communities.
                                                                            --Negotiate brownfields agreements/
                                                                             voluntary cleanup contracts.
                                                                            --Provide technical assistance to
                                                                             federal brownfields grant
                                                                             recipients.
                                                                            --Develop and/or review QAPPs.
                                                                            --Conduct cleanup activities at
                                                                             brownfields sites.
                                                                            --Prepare Property Profile Forms.
Environmental Insurance.....................                        XX,XXX  --Review potential uses of
                                                                             environmental insurance.
Revolving Loan Fund.........................                        XX,XXX  --Create a cleanup revolving loan
                                                                             fund.
                                             ------------------------------
    Total Funding Requested.................                       XXX,XXX  ....................................
----------------------------------------------------------------------------------------------------------------

General Funding Priorities

    When EPA Regions negotiate individual state and tribal work plans, 
it is anticipated that funding will be prioritized as follows:
     Funding of program activities that establish and/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 MOAs will not be 
prejudiced in funding distributions if their work plan does not include 
tasks related to establishing or enhancing the four elements.)
     Activities that develop and maintain the public record.
     Program development and implementation activities that 
enhance the response program or the cleanup capacity of a state or 
tribal response program.

[[Page 60518]]

     Site-specific activities, as negotiated and approved by 
EPA.
     Funding for environmental insurance mechanisms.
     Funding to capitalize brownfields cleanup revolving loan 
funds.
    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. 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) 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 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.
    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 or, if already established, 
maintaining the public record, described above. States and tribes can 
refer to an already existing public record, e.g., website 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:
    A list of sites at which response actions have been completed 
including:
     Date the response action was completed.
     Site name.
     The name of owner at time of cleanup, if known.
     Location of the site (street address, and latitude and 
longitude).
     Whether an institutional control is in place;
     Explain the type of the institutional control in place 
(e.g., deed restriction, zoning restriction, local ordinance, state 
registries of contaminated property, deed notices, advisories, etc.)
     Nature of the contamination at the site (e.g., hazardous 
substances, contaminants, or pollutants, petroleum contamination, etc.)
     Size of the site in acres.
    A list of sites planned to be addressed by the state or tribal 
response program including:
     Site name and the name of owner at time of cleanup, if 
known.
     Location of the site (street address, and latitude and 
longitude).
     To the extent known, whether an institutional control is 
in place;
     Explain the type of the institutional control in place 
(e.g., deed restriction, zoning restriction, local ordinance, state 
registries of contaminated property, deed notices, advisories, etc.)
     To the extent known, the nature of the contamination at 
the site (e.g., hazardous substances, contaminants, or pollutants, 
petroleum contamination, etc.)
     Size of the site in acres.
    Reporting environmental insurance. Recipients with work plans that 
include funding for environmental insurance must report:
     Number and description of insurance policies purchased 
(e.g., type of coverage provided; dollar limits of coverage; 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.
    Reporting for site-specific assessment or cleanup activities. 
Recipients with work plans that include funding for brownfields site 
assessment or cleanup must complete the OMB-approved Property Profile 
Form for each completed site assessment and cleanup.
    Reporting for other site-specific activities. Recipients with work 
plans that include funding for other site-specific related activities 
must include a description of the site-specific activities and the 
number of sites at which the activity was conducted. For example:
     Number and frequency of oversight audits of licensed site 
professional certified cleanups.
     Number and frequency of state/tribal oversight audits 
conducted.
     Number of sites where staff conducted audits, provided 
technical assistance, or conducted other oversight activities.
     Number of staff conducting oversight audits, providing 
technical assistance, or conducting other oversight activities.
    Reporting for RLF uses. Recipients with work plans that include 
funding for Revolving Loan Fund (RLF) must include the information 
required by the terms and conditions for progress reporting under 
CERCLA section 104(k)(3) RLF 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:
     A narrative description and copies of applicable documents 
developed or under development to enable the response program to 
conduct enforcement and oversight at sites. For example: legal 
authorities and mechanisms (e.g., statutes, regulations, orders, 
agreements); 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 grant;
     A narrative description of how these authorities or other 
mechanisms, and resources, are adequate to ensure that: a response 
action will protect human health and the environment; and be conducted 
in accordance with applicable Federal and State law; and if the person 
conducting the response action fails to complete the necessary

[[Page 60519]]

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 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: September 15, 2005.
Linda Garczynski,
Director, Office of Brownfields Cleanup and Redevelopment, Office of 
Solid Waste and Emergency Response.
[FR Doc. 05-20823 Filed 10-17-05; 8:45 am]
BILLING CODE 6560-50-P