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American Recovery and Reinvestment Act of 2009 (Recovery Act) Clarification of April 30, 2009 Addendum to Supplemental Funding for Brownfields Revolving Loan Fund (RLF) Grantees

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

PDF Version (2 pp, 68K, About PDF)

[Federal Register: July 2, 2009 (Volume 74, Number 126)]
[Notices]
[Page 31732-31733]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jy09-51]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8925-6]

American Recovery and Reinvestment Act of 2009 (Recovery Act)
Clarification of April 30, 2009 Addendum to Supplemental Funding for
Brownfields Revolving Loan Fund (RLF) Grantees

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.

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SUMMARY: EPA published a notice on April 30, 2009 concerning the
applicability of Title XVI, section 1605 of the Recovery Act (``Buy
American''), to loans and subgrants that would be made with
approximately $40 million in Recovery Act funding the Agency will use
to supplement Revolving Loan Fund capitalization grants previously
awarded competitively under section 104(k)(3) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). The
April 30, 2009 notice stated that ``remediation activities conducted
with RLF supplemental funds by private sector developers, non-profit
organizations or other non-governmental borrowers or subgrantees, and
tribes, are not public buildings or public works for the purposes of
the Buy American provision of the Recovery Act as implemented at
subpart B of 2 CFR part 176.'' This notice clarifies that statement. If
a non-governmental or tribal borrower or subgrantee uses RLF
supplemental funds to remediate a public building or public work as
defined by the Office of Management and Budget (OMB) regulations, the
Buy American provision of the Recovery Act will apply to that loan or
subgrant.

DATES: This action is effective July 2, 2009.

FOR FURTHER INFORMATION CONTACT: Debi Morey, U.S. EPA, Office of Solid
Waste and Emergency Response, Office of Brownfields and Land Revitalization,
(202) 566-2735 or the appropriate Brownfields Regional Contact.

SUPPLEMENTARY INFORMATION:

Background

    On February 17, 2009, President Barack Obama signed the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-05) (Recovery Act).
Title XVI, section 1605 of the Recovery Act, (``Buy American'')
prohibits the use of Recovery Act funds for projects involving ``the
construction, alteration, maintenance or repair of a public building or
public work unless all of the iron, steel, and manufactured goods used
in the project are produced in the United States'' unless certain
specified exceptions apply. OMB has issued regulations at subpart B of
2 CFR part 176 implementing the Recovery Act Buy American provision.
    EPA received $100 million in Recovery Act appropriations for the
CERCLA 104(k) Brownfields Program of which 25% must be used at
brownfields sites contaminated with petroleum. As indicated in EPA's
April 10, 2009 notice (74 FR 16386), the Agency has allocated
approximately $40 million of Recovery Act funds for supplemental
funding of current RLF grantees as authorized by CERCLA 104(k)(4). On
April 30, 2009, EPA issued a notice (74 FR 19954) regarding the
applicability of the Buy American provision of the Recovery Act to this
supplemental funding. The April 30 notice stated that, ``It is possible
that a limited amount of RLF supplemental funding will be used directly
by non-federal governmental entity borrowers or subgrantees to install
concrete or asphalt (or similar material) caps to remediate
contamination on brownfields on a public building or public work, as
defined at 2 CFR 176.140(a), or to construct alternative drinking water
systems as part of the remedy at a brownfields site * * *. Construction
of alternate drinking water systems by a non-federal governmental
entity with RLF supplemental funding would be a public work under 2 CFR
176.140(a) * * *. Please note that in accordance with 2 CFR 176.140(a),
remediation activities conducted with RLF supplemental funds by private
sector developers, non-profit organizations or other non-governmental
borrowers or subgrantees, and tribes are not public buildings or public
works for the purposes of the Buy American provision of the Recovery
Act as implemented at subpart B of 2 CFR part 176.'' Upon further review,
EPA has determined that when a non-governmental borrower or subgrantee

[[Page 31733]]

uses RLF supplemental funds for remediation activities at a public
building or to carry out a public work, the Buy American provisions of
the Recovery Act apply. For example, if a private sector developer were
to use an RLF loan to install a cap at a public building, the Buy
American provisions of the Recovery Act would apply. Similarly, if a
non-profit RLF subgrantee were to construct an alternate drinking water
system connected to a public system as part of a remedial action at a
brownfield site, the Buy American provisions of the Recovery Act would
apply to the loan or subgrant. There may be other situations in which
the Buy American provisions apply to the use of RLF supplemental funds
by non-governmental borrowers and subgrantees for remediation
activities at public buildings or public works as well.
    Statutory and Executive Order Reviews: Under Executive Order 12866
(58 FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and is therefore not subject to OMB review. Because
this grant action is not subject to notice and comment requirements
under the Administrative Procedures Act or any other statute, it is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or
sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA)
(Pub. L. 104-4). In addition, this action does not significantly or
uniquely affect small governments. Although this action does not
generally create new binding legal requirements, where it does, such
requirements do not substantially and directly affect Tribes under
Executive Order 13175 (63 FR 67249, November 9, 2000). Although this
grant action does not have significant Federalism implications under
Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted
with states in the development of these grant guidelines. This action
is not subject to Executive Order 13211, ``Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001), because it is not a significant
regulatory action under Executive Order 12866. This action does not
involve technical standards; thus, the requirements of section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This action does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act (5
U.S.C. 801 et seq.) generally provides that before certain actions may
take effect, the agency promulgating the action must submit a report,
which includes a copy of the action, to each House of the Congress and
to the Comptroller General of the United States. Since this grant
action, when finalized, will contain legally binding requirements, it
is subject to the Congressional Review Act, and EPA will submit its
final action in its report to Congress under the Act.

    Dated: June 23, 2009.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of
Solid Waste and Emergency Response.
[FR Doc. E9-15688 Filed 7-1-09; 8:45 am]
BILLING CODE 6560-50-P

 
 

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