Brownfield Grant Guidelines Frequently Asked Questions (FAQ)

EPA prepared these frequently asked questions and answers to assist potential applicants for Brownfields grants. Please review the fiscal year 2005 grant application guidelines published in September 2004 when preparing your application. If there is a conflict between the answer to a question and the statute, regulation, or the guidelines, the statute, regulation, or the guidelines take precedence.

I. Definitions and Grant Eligibility

A. Definitions

Q.1 What is a Brownfields Site?

A. For the purposes of EPA's Brownfields grant program, a "Brownfields Site" is: "...real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." In order to be eligible for Brownfields grant funding, the site(s) covered by your application must meet the definition of a Brownfield site.

Brownfields sites also include, but are not limited to, three specific types of properties eligible for funding:

sites contaminated by petroleum or a petroleum product;
sites contaminated by controlled substances; and,
mine-scarred lands.

Some sites are excluded from the definition of a Brownfield site unless EPA makes a "property- specific funding determination" that allows grant funds to be used at that site. This process is explained in Appendix 4 of the Brownfields grant application guidelines.

For a more detailed discussion of Brownfields sites eligible for funding, please refer to the Appendices of the Proposal Guidelines for Brownfields Assessment, Revolving Loan Fund and Cleanup Grants on the EPA website at: http://www.epa.gov/brownfields/proposal_guides/fy05guidelines_final.pdf (18 pp, 1.18M, about PDF )

Q2. How does EPA interpret "non-profit organization" and how can such organizations participate in brownfields revitalization under the new amendments?

A2. For the purposes of the brownfields grant program, EPA will use the definition of non-profit organizations contained in Section 4(6) of the Federal Financial Assistance Management Improvement Act of 1999, Public Law 106-107, 31 USC 6101, Note. This law defines non-profit organizations to mean "any corporation, trust, association, cooperative, or other organization that-

EPA will accept documentation from the U.S. Internal Revenue Service (e.g. 501(c)(3) tax exempt status) or from a State or tribal government that has authority under its laws to grant non-profit status to an organization.

Non-profit organizations, with the exception of organizations subject to section 501(c)(4) of the Internal Revenue Code that lobby, are eligible to receive cleanup grants and subgrants under Revolving Loan Fund (RLF) capitalization grants. Non-profit organizations are also eligible to receive job training grants. See the Proposal Guidelines for Brownfields Job Training Grants for further information (www.epa.gov/brownfields).

Non-profit organizations are not eligible to receive brownfields assessment or RLF grants under 104(k)(2) and 104(k)(3), respectively .

B. Eligibility and Ineligibility

Q3. Who is eligible to apply for the grants?

A3. The Brownfields law defines entities eligible to receive grants, based on the type of grant requested:

assessment and revolving loan fund grants - state, local, and tribal governments, with the exception of Indian tribes in Alaska, as well as a range of government entities, including a general purpose unit of local government or land clearance authority or other quasi-governmental entity operating under the control, supervision, or as an agent of a local government, a governmental entity or redevelopment agency created or sanctioned by a State, or a regional council of governments, are eligible. An Alaska Native Regional Corporation and an Alaska Native Village Corporation as those terms are defined in the Alaska Native Claims Settlement Act, and the Metlakatla Indian community are eligible

cleanup grants - include those eligible governmental entities identified above as well as non-profit organizations and non-profit educational institutions. (Please see another Question and Answer for EPA's definition of a non-profit organization that applies to this program). All eligible entities, including non-profit organizations, must own the site and provide documentation to demonstrate ownership (e.g. copy of the fee simple title) prior to the award of the cleanup cooperative agreement and no later than Sept. 30, 2005.

job training grants -include those eligible governmental entities identified above as well as non-profit organizations, including non-profit educational institutions.

For-profit organizations are not eligible for Brownfields grant funding from EPA

Q4. What sites are not eligible for property-specific funding determinations for Brownfields grants?

A4. The Brownfields Law excludes the following three types of properties from funding eligibility and prohibits EPA from making property-specific determinations on these properties:

Facilities listed (or proposed for listing) on the National Priorities List (NPL);
Facilities subject to unilateral administrative orders, court orders, administrative orders on consent or judicial consent decrees issued to or entered into by parties under CERCLA; and
Facilities that are subject to the jurisdiction, custody or control, of the United States government. (Note: Land held in trust by the United States government for an Indian tribe is eligible for brownfields funding.)

Q5. Are properties on lands held in trust by the Federal government for Indian tribes eligible for brownfields grant funding?

A5. Generally, properties on lands held in trust by the Federal government for Indian tribes are eligible for brownfields grant funding. You should contact your Brownfields coordinator for further information.

Q6. What happens if I accidentally include an ineligible site in my application or I didn't realize I needed a property-specific funding determination?

A6. EPA may provide applicants a limited opportunity to clarify site eligibility issues during the proposal application process. If EPA has reason to believe a site that falls in the "excluded" category is eligible for a property-specific funding determination, EPA may seek clarification. EPA strongly encourages applicants to evaluate their site against the information provided in Appendix 4 of the guidelines. In addition, applicants should contact their Regional Brownfields Coordinators for pre-application assistance on site eligibility.

Applicants may not substitute sites if EPA determines a site is not eligible.

Q7. How do I know if I need to apply for a property-specific funding determination?

A7. A list of the types of sites that only are eligible for Brownfields funding via a property- specific determination is provided in Appendix 4 of the Brownfields grant proposal guidelines. Grant applicants must determine if any properties, or facilities, included in their proposal require a property-specific funding determination, and then provide EPA with the information necessary to make this determination.

EPA makes property-specific funding determinations based on whether the grant will protect human health and the environment, and either promote economic development or enable the creation, preservation or addition of parks, green ways, undeveloped property, recreational property, or other property used for non-profit purposes.

Applicants should review the list of sites eligible for a property-specific determination in Appendix 4 of the Guidelines (http://www.epa.gov/brownfields/) and contact your EPA Regional Brownfields Coordinator if you have further questions regarding property-specific funding determinations.

Q8. Are RCRA sites eligible for Brownfields grant funding?

A8. Some RCRA sites may be eligible. RCRA facilities that may be eligible for Brownfields funding, (subject to meeting all other Brownfields grant eligibility requirements), include:

RCRA interim status facilities that are not subject to any administrative or judicial order or consent decree;
RCRA interim status facilities that are subject to administrative or judicial orders or consent decrees that do not include corrective action requirements or any other cleanup provisions (e.g., RCRA §3008(a) orders without provisions requiring the owner/operator to address contamination); and
Parcels of RCRA facilities that are not under the scope of a RCRA permit or administrative or judicial order to conduct corrective action.

Facilities with permits issued under the authorities of the Resource Conservation and Recovery Act (RCRA), Toxic Substances and Control Act (TSCA), and the Safe Drinking Water Act (SDWA), as well as facilities with permits issued under section 1321 of the Clean Water Act (the oil and hazardous substance liability provisions) are excluded from the definition of brownfield site but may be eligible for funding if the EPA makes a property-specific funding determination. Without a property-specific funding determination provided for in §101(39)(C), these specified RCRA facilities can not receive grant or loan funding.

When making this determination, EPA assesses if Brownfields funding for assessment or cleanup activities will:

ensure protection of human health and the environment; and either
promote economic development, or
promote the creation, preservation, or addition to parks, green ways, undeveloped facility, other recreational facility, or other property used for non-profit purposes.

Q9. Are former military installations that have been closed and subsequently turned over to local and/or state governments or non-profit organizations eligible for funding under the FY04 guidelines?

A9. Yes. Generally, former military installations that are no longer owned or under the custody of the U.S. government, including properties that have been closed and subsequently turned over to governments or non-profit organization may be eligible for brownfields funding. For example, the following types of facilities may be eligible for brownfields funding:

Privately-owned, Formerly Used Defense Sites (FUDS)
Privately-owned, Formerly Utilized Sites Remedial Action Program (FUSRAP) properties.
Other former federal properties that have been disposed of by the U.S. government.

Facilities owned by, or under the custody or control of the federal government are not eligible for brownfields funding with the exception of land held in trust for an Indian tribe. Applicants should contact their Regional Brownfields Coordinator for additional information.

II. General Application Information

Q10. How has the application process for Brownfields assessment, revolving loan fund and cleanup grants changed in FY 2005?

A10. EPA was pleased to receive over 700 proposals for Brownfields grants in FY 2004. Continued national interest in the new law resulted in a highly competitive selection process, with a total of 265 grants announced nationwide in FY 2004.

EPA estimates that $80 million will be available to award approximately 200 grant awards, contingent upon the availability of funds in FY 2005.

Criteria and prohibitions, which are statutorily based, remain the same in FY 2005. However, the application process has changed for FY 05, based upon feedback received on the FY 2004 process, including the following:

The proposal application process will be one step.
Applicants must submit their proposal(s) by November 12, 2004. To submit a proposal, applicants must send an original proposal to Don West, Environmental Management Support, Inc., 8601 Georgia Avenue, Suite 500, Silver Spring, MD 20910, phone 301-589-5318, and a copy to their Regional Brownfields Coordinator at the addresses shown in Appendix 1. Refer to the section, What Are the General Proposal Requirements?, for instructions on preparing proposals. Proposals must be postmarked or sent via registered or tracked mail to Environmental Management Support, Inc. and the appropriate Regional representative by November 12, 2004.
Applicants submitting proposals for cleanup grants must explain the site assessment activities that have been completed to date. At a minimum, an applicant must have completed a Phase I site assessment in order to apply for a cleanup grant.
Applicants must provide a cover letter that briefly describes the overall Brownfields project and how funding this proposal will advance project goals. The letter must be prepared on the applicant's letterhead and signed by an official of the organization.
Applicants for grants to assess or cleanup petroleum contaminated sites must pay particular attention to the changes that have been made to specific site eligibility information under the guidelines for each grant type and Appendix .
The guidelines now provide that EPA will not consider applications that fail to comply with certain mandatory provisions of the guidelines. The Agency strongly urges applicants to carefully read the guidelines.

Q11. What is the grant application process in Fiscal Year 2005

A11.EPA has prepared guidelines on the application process for three types of grants: assessment; revolving loan fund; and cleanup. The process for applying for assessment, revolving loan fund and cleanup grants is a one step process as discussed in the new guidelines (http://www.epa.gov/brownfields/). Applicants may also wish to consult the Grants.gov website established as one of the Office of Management and Budget's e-Government initiatives (http://www.grants.gov/).

To submit original proposal applications for assessment, revolving loan fund and cleanup grants, applicants must send an original proposal to Don West, Environmental Management Support, Inc., 8601 Georgia Avenue, Suite 500, Silver Spring, MD 20910, phone 301-589-5318, and a copy to their Regional Brownfields Coordinator at the addresses shown in Appendix 1. Refer to the section, What Are the General Proposal Requirements?, for instructions on preparing proposals. Proposals must be postmarked or sent via registered or tracked mail to Environmental Management Support, Inc. and the appropriate Regional representative by November 12, 2004.

Prior to November 12, 2004, if resources permit, EPA Regions may conduct open meetings with potential applicants. Please check with your regional office for date and location information. EPA Regions will also respond to questions from individual applicants about any of the threshold criteria, including site eligibility and property ownership. Upon request, Regional staff may review pertinent documents relating to these threshold criteria. However, in accordance with EPA's Competition Policy, EPA staff will not meet with individual applicants to discuss draft proposals, provide informal comments on draft proposals, or provide advice to applicants on how to respond to ranking criteria.

Proposals will be evaluated and ranked by evaluation panels. These panels will evaluate responses to threshold criteria on a pass/fail basis and will evaluate responses to ranking criteria on a numerical scoring basis. If a proposal fails to meet a threshold requirement, it will receive no further consideration. However, EPA may seek clarification from an applicant regarding its response to the threshold criteria. (Note: EPA will not seek clarification on an applicant's response to the Cover Letter and Applicant Information section or the ranking criteria.) Scores on each ranking criterion will be totaled to determine proposal rankings.

Funding requests for each grant type will be evaluated and ranked separately.

Final selections will be made by EPA senior management based upon the recommended ranking of proposals by National Evaluation Panels. EPA decisions may take into account other statutory and policy considerations (see below).

Successful proposal applicants will be informed in writing of their selection.

Funding will be awarded as a cooperative agreement. EPA anticipates substantial involvement with the cooperative agreement recipient. The applicants whose proposals are selected will be asked to submit a cooperative agreement application package to their EPA Regional office. This package will include an EPA-approved work plan, a final budget, and required forms. Cooperative agreements approved under this final selection step will include terms and conditions. These terms and conditions will be binding on the grant recipient and cover areas such as complying with all applicable federal and state laws and ensuring that cleanups protect human health and the environment. Applicants also will be required to submit progress reports in accordance with grant regulations found in 40 CFR 30.51 or 40 CFR 31.40. In addition, successful grant applicants will be required to provide a Dun and Bradstreet Data Universal Numbering System (DUNS) number, which is required when applying for federal grants or cooperative agreements on or after October 2003. For more information, please go to www.grants.gov. EPA will work closely with the applicant to complete and process the cooperative agreement package.

Any disputes regarding proposals or applications submitted in response to these guidelines will be resolved in accordance with 40 CFR 30.63 and Part 31, Subpart F.

In accordance with Executive Order 12372, EPA encourages applicants to contact their State Intergovernmental Review Office early so that the required intergovernmental review process may begin immediately upon selection by EPA. If the state does not have an Intergovernmental Review Office, the successful applicant must provide notice of the proposed agreement directly to affected state, area-wide, regional, and local entities. Contact your Regional Brownfields Contact for assistance, if needed.

EPA reserves the right to reject any or all proposals or applications and make no awards.

EPA anticipates that successful applicants will be notified in the Spring 2005.

For additional information regarding the FY 2005 grant application process for brownfields assessment, revolving loan fund and cleanup grants, contact your EPA Regional Brownfield Coordinator.

Q12. How do I get help in understanding and responding to the new grant proposal guidelines?

A12. EPA urges applicants to review the grant proposal guidelines carefully and any supplemental information on the EPA brownfields website. EPA may add to additional questions to this list, if necessary.

In addition, if resources permit, EPA Regions may conduct open meetings with potential applicants. Please check with your regional office for date and location information. EPA Regions will also respond to questions from individual applicants about any of the threshold criteria, including site eligibility and property ownership. Upon request, Regional staff may review pertinent documents relating to these threshold criteria. However, in accordance with EPA's Competition Policy, EPA staff will not meet with individual applicants to discuss draft proposals, provide informal comments on draft proposals, or provide advice to applicants on how to respond to ranking criteria.

Applicants may contact their EPA Regional Brownfields Coordinator for general information or questions regarding the threshold criteria, including eligibility. A list of EPA Regional Brownfields Coordinators and their mailing addresses can be found in Appendix 1 of the guidelines (http://www.epa.gov/brownfields/proposal_guides/fy05guidelines_final.pdf (18 pp, 1.18M, about PDF )).

All applications will be reviewed and evaluated objectively against the criteria identified in the grant guidelines and ranked based upon their written response. Applicants are responsible for making decisions on the content of their proposals.

Q13. How much money is available through individual grants?

A13. Under the new Brownfields law, an eligible entity may apply for:

Assessment Grants. An eligible entity may apply for up to $200,000 to assess a site contaminated by hazardous substances, pollutants, or contaminants (including hazardous substances co-mingled with petroleum) and up to $200,000 to address a site contaminated by petroleum. For site specific proposals, applicants may seek a waiver of the $200,000 limit and request up to $350,000 for a site contaminated by hazardous substances, pollutants, or contaminants and up to $350,000 to assess a site contaminated by petroleum. Such waivers must be based on the anticipated level of hazardous substances, pollutants, or contaminants (including hazardous substances co-mingled with petroleum) or petroleum at a single site. Total grant fund requests should not exceed a total of $400,000 unless such a waiver is requested. Due to budget limitations, no entity may apply for more than $700,000 in assessment funding. The performance period for an Assessment Grant is 2 years.
Revolving Loan Fund Grants. Grants may be awarded up to $1 million for an initial revolving loan fund (RLF) grant. A coalition of eligible entities may apply together under one application for up to $1 million per eligible entity. The performance period for a Revolving Loan Fund Grant is 5 years.
Cleanup Grants. Grants may be awarded up to $200,000 per site for cleanup. Due to budget limitations, no entity may submit more than five applications which apply for funding cleanup activities at more than five sites. The performance period for a Cleanup Grant is 2 years.

Q14. Must I 'own' the site, when I apply for a Cleanup grant?

A14. No. However, by statute, cleanup grant recipients and revolving loan fund subgrant recipients must own these sites at the time of grant award. For budget purposes, EPA has established a policy that, for cleanup grants, the site must be owned by September 30, 2005 for this FY 05 grant cycle. If an applicant does not own the property by that date, EPA will deem that site ineligible for funding under the Fiscal Year 2005 grant cycle, and the applicant may reapply in future years. The ownership requirement can be met through fee simple title. Other arrangements may be considered on a case-by-case basis. For example, applicants that do not yet "own" the site, may apply if the applicant has an irrevocable agreement to sell or donate the land to the applicant prior to award of the grant, even if the sale or donation agreement is contingent on the applicant being selected to receive a grant. As noted above, the applicant must obtain ownership of the site by September 30, 2005 to be eligible for the award of the grant

Q15. Do tribes "own" tribal trust lands for purposes of brownfields cleanup grants and RLF cleanup subgrants?

A15. Generally, EPA believes tribes have a sufficient ownership interest in tribal trust lands to "own" such lands for purposes of brownfields cleanup grants and RLF cleanup subgrants. Applicants should contact their Regional Brownfields Coordinator for additional information

Q16. Do applicants for brownfields grants (assessment, revolving loan fund or cleanup grant) need to inform their State regarding the submission of a grant proposal to EPA?

A16. Yes. Applicants (other than a State or tribal environmental authority) must provide a letter from a State or Tribal environmental authority that acknowledges the applicant's planned activities in their grant proposal and where specific sites are identified, eligibility determination on those sites, where appropriate. Only one letter reflecting all proposed activities is needed if the applicant applies for multiple grant types or multiple grants.

Q17. What is meant by community notification?

A17. The grant guidelines require the applicant to notify the community about the preparation and submission of the brownfields grant proposal(s) for FY 05 grant funding prior to the submission. The applicant is responsible for providing community notification and providing an opportunity for public comment about the proposal(s). EPA must determine that the applicant has adequately notified the community regarding the proposal to pass this threshold requirement.

Community notification has been an important facet of the brownfields program since its inception and remains an important element under the new amendments. The applicant must describe how the community was notified. Some examples of community notification include:

discussing a brownfields proposal during a government (e.g. city council sessions) meeting;
holding a public meeting;
placing a public notice in a local newspaper or community bulletin board;
notifying affected residents door-to-door; and,
soliciting public comment.

Applicants may describe other methods used to notify the community.

III. Use of Brownfield Grant Funding

A. General Brownfield Grant Information

Q18. Can I use brownfields grant funds to purchase environmental insurance?

A18. Yes. Applicants that receive grants or loans to perform characterization, assessment or cleanup of a brownfields site may use a portion of their brownfields grant or loan funds to purchase environmental insurance. Purchases must be consistent with the applicable OMB Cost Circulars: A-21 is applicable to universities and educational institutions, A-87 is applicable to governmental units, and A-122 is applicable to non-profit organizations.

Q19. As a local government applicant, what program activities can be funded under the 10% provision of the new amendments?

A19. Under the Brownfields Law, a local government (as defined in 40 CFR Part 31.3, Local Government) may use up to 10 percent of its grant funds for monitoring the health of populations exposed to one or more hazardous substances, pollutants, or contaminants from a brownfield site and monitoring and enforcement of any institutional control used to prevent human exposure to any hazardous substance, pollutant, or contaminant from a brownfield site. The term local government does not include state or tribal governments but may include, among others, public housing authorities, school districts and councils of governments. To effectively oversee assessments and cleanups, local governments may use grant funds (within the overall 10 percent limit) for other related program development and implementation activities (e.g., writing local brownfield-related ordinances) described in their EPA approved scope of work.

B. Assessment Grants

Q20. Can I apply for assessment supplemental funds on a non-competitive basis under the new amendments?

A20. No. There are no provisions for non-competitive supplemental funding for brownfields assessment grants. However, existing assessment grant recipients can compete for new grants and receive funding within the limits established by the Brownfields law (see earlier question).

C. Revolving Loan Fund Grants

Q21. What does an existing revolving loan fund (RLF) pilot do to "transition" under the new Law?

A21. A Brownfields Cleanup Revolving Loan Fund (BCRLF) pilot established prior to January 11, 2002 may "transition" under the new Brownfields Law. The EPA has published guidelines on how to transition that can be found on the EPA website. (http://www.epa.gov/brownfields/proposal_guides/bcrlf_0.pdf (51 pp, 452K, about PDF)) These guidelines were sent directly to all the current BCRLF pilots in October 2002. The transition process will be managed through EPA Regional offices. Requests for transition may be made at any time but to manage the work load, EPA Regions may only be able to process them during a specified "open season." EPA has determined that the next open season will be between October 2004 and March 2005. In subsequent years, BCRLF pilots that choose to do so may transition during an 'open season' and should contact their EPA Regional Coordinator to discuss this option.

Q22. Who can apply for RLF non-competitive supplemental funds under the Brownfields Law, and how do they apply?

A22. Only RLF recipients awarded grants since passage of the 2002 Brownfields law, and existing BCRLF pilots who "transition" to the new program, that have made at least one loan can apply for non-competitive supplemental funding. The EPA will consider supplemental funding based on the following statutory considerations:

the number of sites and the number of communities addressed;
the demand for funding by eligible entities that have not previously received a grant under the new amendments;
the demonstrated ability of the eligible entity to use the revolving loan fund (RLF) to enhance remediation and provide funds on a continuing basis; and,
such other factors as the Agency considers appropriate to carry out the RLF.

RLF recipients interested in non-competitive supplemental funding must apply through their EPA Regional office. You should contact your Regional Brownfields coordinator for details. Funding selection will be made by the EPA on a "rolling basis" to the extent funds are available.

Q23. As an RLF grant recipient, will intra-governmental loans (i.e. loans between parts of the same governmental entity) be allowed under the Brownfields law?

Q23. Yes. RLF recipients may make intra-governmental loans under the new Brownfields law.

Q24. As an RLF recipient, will intra-governmental cleanup subgrants be allowed under the Brownfields law?

A24. No. Cleanup subgrants, unlike loans, may not be made by the RLF recipients within the same governmental entity that receives the RLF grant (e.g. one department of a city government "subgrants" to another department of the same governmental entity). However, RLF recipients may choose to apply to EPA separately for a cleanup grant. RLF recipients may also make subgrants to different eligible governmental entities as well as non-profit organizations.

IV. Brownfields Liability Issues

Q25. Are tribes considered "potentially responsible parties" (PRPs) and therefore prohibited from using Brownfields grant funds to pay for response costs at a site for which the recipient is potentially liable under CERCLA § 107?

A25. Generally, EPA has not considered tribes to be liable as PRPs under CERCLA and, therefore, they are not subject to the statutory prohibition (however, the other prohibitions on uses of Brownfields funds may still apply). Applicants should contact their Regional Brownfields Coordinator for additional information.

Q26. What are the Interim Standards for conducting "All Appropriate Inquiry"?

A26. The Brownfields Law set two different interim standards for conducting "all appropriate inquiry" that apply depending on the date the property was purchased.

EPA's Proposed Rule: Standards and Practices for All Appropriate Inquiries was signed by the EPA Administrator and published in the Federal Register on August 26, 2004. EPA will accept public comments on the proposed rule through November 30, 2004. Until final federal standards are promulgated by EPA, these standards will remain in effect.

Q27. What is "All Appropriate Inquiry" and who conducts "All Appropriate Inquiry" under the Brownfields law?

A27. The Brownfields Law establishes that site characterizations or assessments conducted by entities with the use of brownfields grants awarded under CERCLA Section104(k)(2)(B)(kk) must be conducted in accordance with the "all appropriate inquiry" standards established under the law and anyone asserting a liability exemption must all conduct site assessments in accordance with "all appropriate inquiry" standards.

All appropriate inquiry also refers to the requirements for assessing the environmental conditions of a property prior to its acquisition, for purposes of establishing a landowner liability protection under subtitle B of Title II of the Brownfields Law. These landowner liability protections require that a person perform "all appropriate inquiry" into the previous ownership and uses before acquiring the property.

Depending on the date of purchase, the Brownfields Law (§ 101(35)(B) of CERCLA) specifies the elements of the all appropriate inquiry to be applied.

Through a negotiated rulemaking process, EPA has developed a proposed rule regarding all appropriate inquiry. EPA's Proposed Rule: Standards and Practices for All Appropriate Inquiries was signed by the EPA Administrator and published in the Federal Register on August 26, 2004. The proposed rule would establish specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. EPA developed the proposed rule using a Negotiated Rulemaking process. The proposed rule retains the regulatory language developed by the Negotiated Rulemaking Committee. The text of the proposed rule and preamble is provided below. EPA will accept public comments on the proposed rule through November 30, 2004. The preamble provides detailed instructions on how to submit public comments to EPA on the proposed rule. To learn more about the final committee language, review the proposed rule or to provide comments, please refer to the EPA brownfields website link to all appropriate inquiry (http://www.epa.gov/brownfields/regneg.htm#finaldraft).

Q28. What are the statutory criteria for conducting "All Appropriate Inquiry"?

A28. Congress directed EPA to establish, by regulation, standards and practices for conducting all appropriate inquiry. This will be accomplished through the process of regulatory negotiation. In the Brownfields Law, Congress directed EPA to include, within the standards for all appropriate inquiry, the ten criteria shown below:

The results of an inquiry by an environmental professional;
Interviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility;

Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land-use records, to determine previous uses and occupancies of the real property since the property was first developed;

Searches for recorded environmental clean-up liens against the facility that are filed under Federal, State, or local law;

Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records concerning contamination at or near the facility;

Visual inspections of the facility and adjoining properties;

Specialized knowledge or experience on the part of the defendant;

The relationship of the purchase price to the value of the property if the property was not contaminated;

Commonly known or reasonably ascertainable information about the property; and

The degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination by appropriate investigation.

Through a negotiated rulemaking process, EPA has developed a proposed rule regarding all appropriate inquiry. EPA's Proposed Rule: Standards and Practices for All Appropriate Inquiries was signed by the EPA Administrator and published in the Federal Register on August 26, 2004. The proposed rule would establish specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. EPA developed the proposed rule using a Negotiated Rulemaking process. The proposed rule retains the regulatory language developed by the Negotiated Rulemaking Committee. The text of the proposed rule and preamble is provided below. EPA will accept public comments on the proposed rule for a period of 60 days. The preamble provides detailed instructions on how to submit public comments to EPA on the proposed rule. To learn more about the final committee language, review the proposed rule or to provide comments, please refer to the EPA brownfields website link to all appropriate inquiry (http://www.epa.gov/brownfields/regneg.htm#finaldraft).

V. Petroleum Brownfields

Q29. Can a petroleum brownfields grant be used for the assessment and/or cleanup of hazardous substances?

A29. No. As a general rule, a petroleum brownfields grant should be used to assess or cleanup sites contaminated with petroleum. However, if the 'principal purpose' of the assessment grant is to assess a site potentially contaminated with petroleum or to clean up a petroleum contaminated site, a petroleum brownfields grant may be used for the incidental assessment and/or cleanup of hazardous substances.

Q30. What information should I provide to a state or EPA so that my petroleum contaminated site is eligible for grant funding?

A30. The Brownfields Law allows certain sites contaminated with petroleum or petroleum product to be eligible for brownfields grant funding. Eligibility will be determined by EPA or the state, as appropriate (See Appendix 3, part 3.3.2 Contamination by Petroleum or Petroleum Product for a description of the eligibility requirements).

Non-Tribal applicants must provide the information requested below to your state, so that the state can make the necessary determinations on petroleum site eligibility in Appendix 3, part 3.3.2. Include any response to your request received from your state regarding site eligibility with this proposal. If you do not receive a response from your state by the deadline for filing proposals, please indicate this in your proposal cover letter. (Note: You must provide EPA with the date you requested your state to make the petroleum site determinations. EPA will make the petroleum site eligibility determination if a state is unable to do so following a request from an applicant.)

Tribal applicants must submit the following information with their proposal to EPA. EPA will make the petroleum site eligibility determinations for Tribes.

Provide the following information to your state and to EPA:

Identify the current and immediate past owner of the site.
Acquisition of Site. Identify when and by what method the current owner acquired the property (e.g., purchase, tax foreclosure, donation, eminent domain).
No Responsible Party for the Site. Identify whether the current and immediate past owner dispensed or disposed of petroleum or petroleum product, or exacerbated the existing petroleum-contamination at the site, and whether the current and immediate past owner took reasonable steps with regard to the contamination at the site.
Cleaned Up by a Person Not Potentially Liable. Identify whether you (the applicant) dispensed or disposed of petroleum or petroleum product, or exacerbated the existing petroleum-contamination at the site, and whether you took reasonable steps with regard to the contamination at the site.
Relatively Low Risk. Identify whether the site is of "relatively low risk" compared to other petroleum or petroleum product-only contaminated sites in the state in which the site is located, including whether the site is receiving or using Leaking Underground Storage Tank (LUST) Trust Fund monies.
Judgments, Orders, or Third Party Suits. Provide information that no responsible party is identified for the site through, either:
1. a judgment rendered in a court of law or an administrative order that would require any person to assess, investigate, or clean up the site; or
2. an enforcement action by federal or state authorities against any party that would require any person to assess, investigate, or clean up the site; or
3. a citizen suit, contribution action or other third party claim brought against the current or immediate past owner, that would, if successful, require the assessment, investigation, or cleanup of the site.
Subject to RCRA. Identify whether the site is subject to any order under section 9003(h) of the Solid Waste Disposal Act.
Financial Viability of Responsible Parties. For any current or immediate past owners identified as responsible for the contamination at the site, provide information regarding whether they have the financial capability to satisfy their obligations under federal or state law to assess, investigate or clean up the site. Note: If no responsible party is identified in (c) or (f) above, then the petroleum-contaminated site may be eligible for funding. If a responsible party is identified above, EPA or the state must next determine whether that party is viable. If any such party is determined to be viable, then the petroleum-contaminated site may not be eligible for funding.

Your request to a state or EPA for the determination on site eligibility also must include a brief explanation as to why the information requested above is not available.

Q31. Based on the information I provided (see Question 30 above), what statutory determinations must my state (or EPA) make to assure that petroleum-contaminated sites (or portions of properties contaminated with petroleum) are eligible for brownfields funding.

A31. For a petroleum contaminated site(s) that otherwise meets the definition of a brownfields site to be eligible for funding, EPA or the state must determine:

the site is of 'relatively low risk' compared with other 'petroleum-only' sites in the state; and
there is no viable responsible party; and
funding will be used by a party that is not potentially liable for the petroleum contamination to assess, investigate, or clean up the site.

In addition, petroleum-contaminated sites must not be subject to a corrective action order under the Resource Conservation and Recovery Act (RCRA) '9003(h).

With the exception of Tribes, applicants must first request that their state make these determinations. If the state is unable to make the determinations , the applicant may request that EPA make the determinations. For further information see Guidelines Appendix 3, part 3.3.2 Contamination by Petroleum or Petroleum Product.

VI. Additional Brownfield Questions

Q32. Can brownfields grant funds be used to assess or clean up sites contaminated with PCBs?

A32. Yes. All portions of properties potentially contaminated with PCBs may be eligible for brownfields site assessment, cleanup and revolving loan fund grants (without a property-specific determination), except where EPA has initiated an involuntary action to address PCB contamination at the facility or a portion of a facility. In cases where EPA has initiated an action under the Toxic Substances and Control Act against a property owner to address the illegal disposal of PCBs, the property still may be eligible for brownfields funding if an applicant can demonstrate that the funding will ensure protection of human health and the environment and promote either economic development or the creation or preservation of greenspace.

Please email comments on this website to:Brownfields-Web-Comments@epamail.epa.gov