Proposal Guidelines for Brownfields Assessment, Revolving Loan Fund, and Cleanup Grants - Appendix 4.
Guidance for Requests for Property-Specific Determinations for Funding

Contents

4.1 Overview 56
4.2 Funding Limitations 56
4.3 Criteria for Determining Eligibility for Funding on a Property-Specific Basis 57
4.3.1 Protection of Human Health and the Environment 58
4.3.2 Promote Economic Development 58
4.3.3 Creation of, Preservation of, or Addition to Parks, Greenways, Undeveloped Property, other Recreational Property, or Other Property Used for Nonprofit Purposes 59
4.3.4 Other Documentation 59
4.4 Properties Not Eligible for Brownfields Funding 60
4.5 Additional Information on Potential Funding for Petroleum-contaminated Sites 61
4.6 Additional Information on Potential Funding for Petroleum-contaminated
4.7 Eligible Response Sites/Enforcement Limits 61

4.1 Overview

Grant applicants must determine if any of the properties, or facilities, included in their proposal require a property-specific determination. A list of the categories of facilities that only are eligible for funding via a property-specific determination is provided below.

If an applicant includes within the scope of a grant proposal a facility that requires a property-specific funding determination, the proposal must include, on a separate page, the following information (to the extent this information replicates information requested elsewhere in the proposal, the applicant may directly copy the text to this page):

1. Basic site identification information and eligible entity identification information.

2. The specific circumstance that requires the grantee to request a property-specific determination (from the list in Section 3.4 of Appendix 3).

3. A short explanation of why the site falls within the identified circumstance requiring the property-specific funding determination.

4. An explanation of how providing brownfields funding for the site will meet the criteria necessary for making a property-specific funding determination (see below).

5. The degree to which other funding is or is not available for the assessment or cleanup of the site.

6. A explanation of whether or not the applicant is responsible for the contamination at a site.

The information provided will be used in making a property-specific determination for funding purposes, which will take place during the proposal evaluation process.

4.2 Funding Limitations

Although the statutory definition of "brownfield site" is broad, Congress limited the extent to which brownfields funding may be provided to eligible entities to assess and clean up sites that are being addressed under other federal programs. In addition, the Brownfields Law prohibits the use of grant and loan funds for the payment of response costs at sites for which the funding recipient of the grant or loan is potentially liable under §107 of CERCLA.⁶ (See Appendix 2 for additional prohibitions on the use of brownfields funding.)

The types of facilities that Congress excluded from funding eligibility are listed below. However, certain facilities listed below as excluded from funding eligibility, may still qualify for brownfields funding. The types of facilities marked with an asterisk (*) below are eligible for brownfields funding if a property-specific determination is made that funding for assessment or cleanup activities will meet the criteria set forth in the statute and meet the goals and criteria of the brownfields program.

• Facilities subject to planned or ongoing removal actions under CERCLA.*
• Facilities currently listed, or proposed to be listed, on the NPL.
• Facilities subject to a unilateral administrative order, a court order, an administrative order on consent, or a judicial consent decree under CERCLA.
• Facilities that have been issued or entered into a unilateral administrative order, a court order, an administrative order on consent, or judicial consent decree or to which a permit has been issued by the U.S. or an authorized state under RCRA, FWPCA, TSCA, or SDWA.*
• Facilities subject to RCRA corrective action (§3004(u) or §3008(h)) to which a corrective action permit or order has been issued or modified to require the implementation of corrective measures.*
• Land disposal units that have submitted a RCRA closure notification or that are subject to closure requirements specified in a closure plan or permit.*
• Facilities subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the U.S., except for land held in trust for an Indian tribe.
• Portions of facilities where there has been a release of PCBs and is subject to TSCA remediation.*
• Facilities receiving monies for cleanup from the LUST trust fund.*

* Sites eligible for property-specific funding determinations.

The types of facilities marked with an asterisk above may qualify for brownfields funding if EPA makes a property-specific determination that brownfields funding will protect human health and the environment and will either promote economic development or the creation, preservation, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes. A determination of eligibility for funding will be made by EPA at the time of proposal evaluation.

Grant applicants must determine whether the property or properties that are the subject of their proposal fall within the scope of one or more of the funding exclusions listed above. Actual determinations of eligibility or exclusion will be made by EPA. However, if one or more sites that are the subject of a grant proposal fall within the scope of any of the facility types listed above, the grant proposal should specifically identify the site or sites, identify the applicable funding exclusion from the list above, and describe why each site falls within the exclusion. Descriptions summarizing the scope of each of the funding exclusions listed above are provided in Appendix 3 of these guidelines.

6 Applicants also should note that the Brownfields Law contains other prohibitions on the use of grant and loan monies, including the use of grant and loan monies for paying penalties, administrative costs, federal cost-share requirements, and the cost of complying with any federal law (see Section 101(k)(4)(B)).

4.3 Criteria for Determining Eligibility for Funding on a Property-Specific Basis

Certain sites that are excluded from funding eligibility because the sites fall within the scope of the statutory exclusions from the definition of "brownfield site" may qualify for brownfields funding if a property-specific determination is made that the sites meet the goals and criteria of the brownfields program and the criteria set forth in the statute. The following types of facilities, although excluded from the definition of brownfield site above, are eligible for property-specific determinations for brownfields funding:

1. Facilities subject to planned or ongoing removal action under CERCLA.

2. Facilities to which a permit has been issued by U.S. or authorized state under RCRA, FWPCA, TSCA, or SDWA.

3. Facilities subject to RCRA orders requiring corrective action (§3004(u) or §3008(h)).

4. Land disposal units that have submitted a RCRA closure notification or that are subject to closure requirements specified in a closure plan or permit.

5. Portions of facilities where there has been a release of PCBs and is subject to TSCA remediation.

6. Facilities receiving monies for cleanup from the LUST trust fund.

In the case of each type of facility listed above, the new legislation allows EPA to award financial assistance to an eligible entity for assessment or cleanup activities at the site, if it is found that financial assistance will:

1. Protect human health and the environment, and

2. Either:

-promote economic development, or
-enable the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes.

Grant proposals for brownfields funding that include, within the scope of planned assessment or cleanup activities, sites, properties, or facilities that potentially fall within any of the funding exclusions listed above, should specifically identify such sites and explain, in as much detail as possible, why the availability of brownfields funding will protect human health and the environment and promote economic development or the creation or preservation of greenspace (or other listed objectives). Information provided by the applicant in addressing these criteria will be used in documenting EPA's decision in making property-specific determinations for funding eligibility.

4.3.1 Protection of Human Health and the Environment

Grant applicants must provide a detailed discussion of how financial assistance for brownfields assessment or cleanup activities at each site for which a property-specific determination for funding eligibility must be made will result in the allocation of funding in accordance with legislative intent. Each proposal for financial assistance, including a recipient of a revolving loan fund grant seeking EPA approval of loans, whose proposal includes one or more sites for which a property-specific determination must be made must include a discussion of how brownfields funding will ensure protection of human health and the environment. Documentation supporting a determination that brownfields funding will ensure protection of human health and the environment should include documentation of one or more of the following:

• Specific examples of human health risks that will be mitigated by activities funded under a brownfields grant.
• Specific environmental improvements that can reasonably be expected to result from activities funded under a brownfields grant.
• Specific examples of contamination that will be addressed, including the specific hazardous substances, pollutants, or contaminants of concern and the environmental media that will be addressed.
• Description of how the proposed cleanup and redevelopment of the property will ensure that the property will be protective of human health and the environment and that the remedy will be both protective and consistent with the planned reuse of the property.

4.3.2 Promote Economic Development

Applicants also must provide detail on how financial assistance will promote economic development or the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes. Documentation of economic development activities should include information such as the following:

• A description of economic development activities that can reasonably be expected to occur as a result of brownfields funding (e.g., number of jobs created, estimated increase in the property and/or profits/sales tax base to community, additional business expansion or new business relocation that may occur within the community).
• A description of how the redevelopment of the brownfields property will contribute to community-wide redevelopment and revitalization plans with a specific emphasis on how funding for the brownfields redevelopment is integral to the success of the community-wide plan.
• A description of new businesses or business expansions that are planned for the brownfields property.

4.3.3 Creation of, Preservation of, or Addition to Parks, Greenways, Undeveloped Property, other Recreational Property, or Other Property Used for Nonprofit Purposes

If brownfields funding will be used by the applicant to preserve or create greenspace, recreational areas, undeveloped property, or property to be used for nonprofit purposes, the applicant should provide specific documentation of these activities in the proposal. Grant proposals should provide specific information documenting how brownfields funding will result in the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes should include information such as:

• A description of the proposed park, recreational property, greenspace, undeveloped space, or other type of property to be used for nonprofit purposes, including size, use, and surrounding environment that will be preserved or created as a result of brownfields funding.
• An assessment of how the property will be used and by whom.
• A description of how the property will be integrated with surrounding properties or environments.
• A description of how the property will be maintained or preserved for its continued use as a greenspace, recreational area, etc.

When documenting compliance with these criteria, applicants may copy information provided elsewhere in their proposal, if such information directly addresses the criteria. However, all documentation must be comprehensive and specific to actual events that will be mitigated or can reasonably be expected to occur as a result of federal brownfields funding, should the applicant receive brownfields funding.

4.3.4 Other Documentation

Property-specific brownfields funding determinations will be made based upon the availability of funding and the extent to which applicants can provide documentation that funding for particular sites offers opportunities to protect human health and the environment and enhance economic development or create or preserve greenspace (as the criteria is described above). However, at the same time, Congress explicitly prohibited the use of federal brownfields funding to reimburse liable parties for response costs. The statute prohibits grant and loan monies from being used for the payment of response costs at brownfield sites for which the recipient of a grant or loan is potentially liable (§101(k)(4)(B)(i)(IV)). Applicants are encouraged to address, in the body of the proposal, why federal funding is appropriate for brownfields assessment and/or cleanup at the site, given that brownfields funding cannot be used to reimburse liable property owners for response activity costs.

4.4 Properties Not Eligible for Brownfields Funding

Grant applicants must keep in mind that the legislation excludes certain types of facilities from qualifying for the property-specific funding determinations and therefore from federal brownfields financial assistance. Sites or facilities that may not be included within the scope of a grant proposal and for which brownfields grants and loans cannot be made available regardless of property-specific circumstances include the following types of sites or facilities:

• Facilities listed or proposed for listing on the NPL.
• Facilities subject to a unilateral administrative order, an administrative order, a court order, an administrative order on consent, or a judicial consent decree issued or entered into by parties under CERCLA.
• Facilities that are subject to the jurisdiction, custody, or control of the United States government, except for land held in trust by the U.S. for an Indian Tribe.

Applicants should note that the discussion of property-specific determinations for funding sites that are otherwise excluded from funding eligibility that is provided here only applies to funding determinations. This discussion does not apply to, or have bearing on, any other property-specific determinations or other aspects of the brownfields program. For example, a property-specific determination for funding purposes in no way affects a facility's or an entity's status with regard to EPA's enforcement and cost recovery authorities.

4.5 Additional Information on Potential for Continual Funding at Sites Subject to Removal Actions

Some brownfield sites that receive federal brownfields assessments grants may, as a result of the federally-funded site assessment require a CERCLA removal action. Under the Brownfields Law (§101(39)(B)(i)), sites that are subject to planned or on-going removal actions under CERCLA are excluded from funding eligibility. However, such sites may receive federal brownfields funding if a property-specific determination is made that such funding will meet the property-specific determination criteria. Applicants should follow the procedures listed in the previous section to request a property-specific determination. )Note: If a removal action is required at a site where an assessment grant exists, the grantee does not need to obtain the property-specific determination noted above. However, grant recipients must obtain approval from the EPA removal OSC prior to any onsite work commencing.)

Grant applicants requesting federal brownfields funding and recipients of revolving loan fund grants seeking EPA approval of loans for sites at which a CERCLA removal action is planned or on-going must document in their proposals (or loan approval requests) that the requested funding will be used in accordance with legislative intent. Therefore, proposals must include a discussion of how brownfields grant or loan funds will ensure protection of human health and the environment and provide detail on how financial assistance will promote economic development or the creation of, preservation or, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes. Requests for property-specific determinations for funding for the assessment or cleanup of properties where there is a planned or ongoing removal action will be considered in the following circumstances: 1) when it is clear a follow-on response action will be required to address long-term threats at a site; and 2) in cases where portions of a site are not under the current scope of a planned or ongoing removal action.

In addition to the specific criteria listed above, applicants also should explain in their proposal the extent to which other funding sources are not available for the assessment and/or cleanup of the site or property. Federal brownfields funding cannot be used to reimburse liable parties for response costs. In addition, federal brownfields funding may not be used for an ensuing removal action. Applicants should specifically address, in the body of the proposal, why federal funding is appropriate for brownfields assessment and/or cleanup at the site, given the Congressional intent not to reimburse liable property owners for response activity costs.

4.6 Additional Information on Potential Funding for Petroleum-contaminated Sites

As noted above, portions of facilities receiving assistance for response activities from the LUST trust fund are excluded from eligibility for brownfields funding. However, these facilities are eligible for funding on a property-specific basis. To assist applicants in determining whether their sites are good candidates for property-specific funding determinations, below are examples of "ineligible" sites (i.e., sites receiving LUST trust fund monies) EPA considers to be potentially good candidates to receive brownfields grants or loans under the property-specific determination provisions of the Brownfields Law (i.e., CERCLA §101(39)(C)).

• All USTfields pilots.
• Sites (or portions of properties) where an assessment was completed using LUST trust fund monies and the state has not determined the site to be a "high risk" site and, although an assessment was completed using LUST trust fund monies, the site needs further assistance to conduct a cleanup. Although the site is otherwise a good candidate for economic revitalization, additional LUST money cannot be provided for the cleanup of petroleum contamination.
• Sites (or portions of properties) where LUST money was spent for emergency activities, and are otherwise determined to be ineligible for further LUST trust funds, yet the site needs additional funding for continued assessment and/or cleanup that will contribute to economic revitalization of the site.

4.7 Eligible Response Sites/Enforcement Limits

The Brownfields Law limits EPA's enforcement and cost recovery authorities at "eligible response sites" where a response action is conducted in compliance with a state response program. Section 101(40) defines an "eligible response site" by referencing the general definition of a "brownfield site" in §101(39)(A) and incorporating the exclusions at §101(39)(B). The law places further limitations on the types of sites included within the definition of an eligible response site, but grants EPA the authority to include within the definition of eligible response site, and on a property-specific basis, some facilities that are otherwise excluded from the definition. Such property-specific determinations must be based upon a finding that limits on enforcement will be appropriate, after consultation with state authorities, and will protect human health and the environment and promote economic development or facilitate the creation of, preservation, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes. While the criteria appear similar to those for determining eligibility for funding on a property-specific basis, the determinations are distinct, will be made through a separate process, and may not be based on the same information requested in this document for property-specific funding determinations.

Table of Contents

1. The National Brownfields Program and the New Brownfields Law 3
1.1. Background 3
1.2. The New Brownfields Law 3

2. Summary of Brownfields Grant Programs 5
2.1. Applicant Eligibility 5
2.2. Assessment Grant Program 6
2.3. Revolving Loan Fund Grant Program 6
2.4. Cleanup Grant Program 7

3. Proposal Submission and Selection Process Overview 9
3.1. Step 1–Initial Proposals 10
3.2. Step 2–Final Proposals 11
3.3. Final Selection and Funding Award 11
3.4. Proposal Submission Schedule 12
3.5. General Proposal Requirements 12

4. Initial Proposal Guidelines 15
4.1. Preliminary Information 16
4.2. Assessment Grants 18
4.3. Revolving Loan Fund Grants 20
4.4. Cleanup Grants 24

5. Final Proposal Guidelines 29
5.1. Assessment Grants 29
5.2. Revolving Loan Fund Grants 32
5.3. Cleanup Grants 35

Appendix 1. EPA Regional and Headquarters Contacts 39

Appendix 2. Prohibitions on Use of Funds 41

Appendix 3. Guidance on Sites Eligible for Brownfields Funding Under CERCLA §104(k) 43

Appendix 4. Guidance for Requests for Property-Specific Determinations for Funding 55