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The Davis-Bacon Act and Brownfields

This fact sheet provides an overview of the Davis-Bacon Act and its applicability to brownfields projects: 

  • The Davis-Bacon Act and Brownfields (pdf) (4.61 MB)

Frequently asked questions about the Davis-Bacon Act and brownfields projects:

1. Do Davis-Bacon prevailing wage requirements apply to construction contracts for the cleanup of brownfield sites when the cleanup is partially funded with Brownfields Grant funds?

Yes, if the contracts are for construction work that takes place in close temporal proximity to the work that is federally funded. Under CERCLA 104(g), Davis-Bacon applies to construction, alteration or repair work that is funded “in whole or in part” with Brownfields CERCLA 104(k) grants, subgrants, and loans. EPA follows the “purpose, time and place” test for determining the applicability of Davis-Bacon prevailing wage requirements when a cleanup is funded with federal and non-federal resources. Applying that test, the construction contracts described in the question would meet the “purpose” and “place” prongs of the test. Whether the “time” prong is met depends on the facts, but if the cleanup work taking place is closely related in time to the federally funded portion of the cleanup, then Davis-Bacon would apply. Parties who intentionally structure the timing of the contracts to avoid Davis-Bacon may be subject to sanctions under applicable regulations.

2. Do Davis-Bacon prevailing wage requirements apply to contracts for post-cleanup redevelopment construction at brownfield sites where EPA-funded remediation is complete?

No. EPA has determined that post-cleanup construction work does not meet the “purpose” prong of the test for Davis-Bacon applicability under CERCLA 104(g). Post-cleanup construction work is not eligible for funding under CERCLA 104(k) and the activities the contractors would perform (e.g., erection or renovation of buildings) would be substantially different than those carried out for site remediation. The purpose of the contracts, therefore, would not be closely related. Additionally, the post-cleanup construction generally does not take place at the same time as site remediation, although as noted above, whether the time prong of the test is met is fact specific.

3. Do Davis-Bacon Terms and Conditions (T&Cs) need to be added to the cleanup activities under Section 128(a)?

Davis-Bacon does not apply to 128(a) cleanups because that program is not subject to the prevailing wage requirements in CERCLA 104(g). However, in rare cases, a state or Tribe may be operating a CERCLA 104(k) RLF Grant with 128(a) funding. In that case, the RLF portion of 128(a) funding has to be awarded as a separate cooperative agreement with RLF Terms and Conditions including Davis-Bacon requirements.

Brownfields

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Contact Us about Brownfields
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Last updated on March 26, 2025
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