Information on Sites Eligible for Brownfields Funding under CERCLA § 104(k)

1.1 Introduction

EPA will use the information below to determine if sites are eligible for Brownfield Grant funding under the Comprehensive Environmental Response, Compensation, and Liability Act § 104(k).

Applicants requesting funding for a specific site(s) (i.e., applying for Cleanup Grants) may use the information below in developing responses to the threshold eligibility criteria outlined in the Guidelines.

Current Brownfield Grant recipients managing Assessment Grants (including Community-wide Assessment Grants, Assessment Coalition Grants, and Community-wide Assessment Grants for States and Tribes), RLF Grants, or Multipurpose Grants will submit site-specific eligibility determination requests during the cooperative agreement period of performance. EPA will use the information below to determine if the site is eligible for funding. See Section 2.1 for information recipients should expect to provide for EPA to determine if a proposed site is eligible for Assessment Grant funding.

This information is used by EPA solely to make applicant and site eligibility determinations for Brownfield Grants and is not legally binding for other purposes including federal, state, or Tribal enforcement actions.

1.2 General Definition of Brownfield Site

CERCLA1 defines a “Brownfield Site” as “...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.” Brownfield sites include residential, commercial, and industrial properties.

1.3 Additional Areas Specifically Eligible for Funding

CERCLA also identifies three additional types of properties that are specifically eligible for funding:

  1. Sites contaminated by controlled substances (Section 1.3.1).
  2. Sites contaminated by petroleum or a petroleum product (Section 1.3.2).
  3. Mine-scarred lands (Section 1.3.3).

See the corresponding sections for guidance on determining the scope of each of these three types of sites.

1.3.1 Contamination by Controlled Substance

Sites eligible for funding include real property, including residential property, that is contaminated by a controlled substance. A “controlled substance” is defined under the Controlled Substances Act as “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V of Part B of this title (21 USC § 812). The term does not include distilled spirits, wine, malt beverages, or tobacco...” For example, sites eligible for Brownfield Grant funding may include private residences formerly used for the manufacture and/or distribution of methamphetamines or other illegal drugs where there is a presence or potential presence of controlled substances or pollutants, contaminants, or hazardous substances (e.g., red phosphorous, kerosene, acids).

1.3.2 Contamination by Petroleum or Petroleum Product

Petroleum-contaminated sites must meet certain requirements to be eligible for Brownfield Grant funding. Petroleum is defined under CERCLA as “crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under that section.”

For a petroleum-contaminated site that otherwise meets the definition of a brownfield site to be eligible for funding, EPA or the state must determine:

  1. There is no viable responsible party.
  2. The site will not be assessed, investigated, or cleaned up by a person that is potentially liable for cleaning up the site.
  3. The site must not be subject to a corrective action order under the Resource Conservation and Recovery Act § 9003(h).

Applicants applying for a Cleanup Grant to address petroleum-contaminated sites must provide information in their proposal indicating whether the site meets each of the criteria listed above and respond to the threshold criteria outlined in the Guidelines.

For current recipients managing an Assessment Grant, RLF Grant, or Multipurpose Grant, the state or EPA must make the same determinations for site(s) that will be addressed. These criteria are explained below.

Please note that states may, but are not required to, use this guidance to determine whether sites contaminated by petroleum or petroleum products are eligible for Brownfield Grant funding. States may apply their own laws and regulations, if applicable, to eligibility determinations under this section.

Note: A petroleum eligibility determination by EPA or a state under CERCLA § 101(39)(D) for the purpose of Brownfield Grant funding does not release any party from obligations under any federal or state law or regulation, or under common law, and does not impact or limit EPA or state enforcement authorities against any party.

“A Site for Which There is No Viable Responsible Party”

EPA or the state is required to determine that there is no viable responsible party that can address the petroleum contamination at the site. If EPA, or the state, identifies a party that is responsible for the activities proposed in the grant proposal/submitted for a site eligibility determination, and that party is financially viable, then the site is not eligible for funding and EPA cannot award the grant/approve the site for funding. This analysis is twofold - EPA or the state must first determine whether a responsible party exists and, if a responsible party is identified, then determine whether that party is viable for the activities identified in the grant proposal/submitted as part of a site eligibility determination. Applicants/recipients are responsible for providing information that demonstrates that the activities for which they seek funding have no viable responsible party.

A petroleum-contaminated site may be determined to have no responsible party if the site was last acquired (regardless of whether the site is owned by the applicant/recipient) through tax foreclosure, abandonment, or equivalent government proceedings, and that the site meets the criteria in (1) below. Any petroleum-contaminated site not acquired by a method listed above will be determined to have a responsible party if the site fails to meet the criteria in both (1) and (2) below.

  1. No responsible party has been identified for the site through:
    1. an unresolved judgment rendered in a court of law or an administrative order that would require any party (including the applicant/recipient) to conduct the activities (including assessment, investigation or cleanup) proposed in the grant proposal/submitted as part of a site eligibility determination;
    2. an unresolved enforcement action by federal or state authorities that would require any party (including the applicant/recipient) to conduct the activities (including assessment, investigation, or cleanup) proposed in the grant proposal/submitted as part of a site eligibility determination; or
    3. an unresolved citizen suit, contribution action, or other third-party claim brought against the current or immediate past owner for the site that would, if successful, require the activities (including assessment, investigation, or cleanup) proposed in the grant proposal to be conducted/submitted as part of a site eligibility determination.
  2. The current and immediate past owner did not dispense or dispose of, or own the subject property during the dispensing or disposal of, any contamination at the site, did not exacerbate the contamination at the site, and took reasonable steps with regard to the contamination at the site2. For purposes of the Brownfields Program, the current owner is the entity that will own the property at the time of proposal submission/submission of the site eligibility determination. (For Cleanup Grants, the current owner must be the applicant/recipient.)

If no responsible party is identified 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 is not eligible for funding.

If there is a responsible party for the site, the applicant/recipients should explain what steps it took to determine a responsible party’s financial status, and why the information presented indicates that the responsible party is not viable. A state making the “viable responsible party” determination for the applicant/recipient may use the standards contained in this document or its own standard. If a state is not making the determination or a Tribe is the applicant/recipient, EPA will follow the standard set forth in this document. Note that any viability determination made by EPA is for purposes of the CERCLA § 104(k) grant program only.

EPA will consider a party to be viable if the party is financially capable of conducting the activity (i.e., assessment, investigation, or cleanup) identified in the grant proposal.

Generally, EPA will consider ongoing businesses or companies (corporations, LLCs, partnerships, etc.) and government entities to be viable. EPA will generally deem a defunct or insolvent company and an individual responsible party to be not viable. EPA will apply these assumptions to its petroleum grant viability determinations, unless there is information suggesting that the assumption is not appropriate in a particular case (e.g., if there is information that an individual has adequate financial resources to address contamination at a site, or if there is information indicating an ongoing business is not, in fact, viable). An applicant/recipient should indicate if one of the above assumptions applies and provide support for the assertion. In circumstances not covered by one of the above assumptions, the applicant/recipient should explain why the responsible party is not viable.

An applicant/recipient seeking to determine the financial status (i.e., the viability) of a responsible party should consider consulting the following resources and any other resources it may deem to be useful to make this determination:

  1. Responsible Party: Ask the responsible party for its financial information (tax returns, bank statements, financial statements, insurance policies designed to address environmental liabilities, etc.), especially if the responsible party is still associated with the site or is the applicant/recipient, and, therefore, will receive the benefit of the grant. An applicant/recipient that is a responsible party and claiming it is not viable should provide conclusive information, such as an INDIPAY or MUNIPAY analysis, on its inability to pay for the assessment or cleanup.
  2. Federal, State, and Local Records: Federal, state, and local (i.e., county and city) records often provide information on the status of a business. An applicant/recipient that is a state or local government should at the very least search its own records for information on a responsible party. Examples of such resources include regulatory records (e.g., state hazardous waste records), Secretary of State databases, and property/land records.
  3. Public and Commercial Financial Databases: Applicants/recipients also may obtain financial data from publicly available and commercial sources. Listed below are examples of sources for financial data. Please note that some commercial sources may charge fees. EPA does not endorse the use of any specific sources, and EPA will accept reliable data from other sources as part of a proposal for funding.

Examples of sources: Lexis/Nexus, Dun & Bradstreet reports, Hoover’s Business Information, Edgar Database of Corporate Information, Thomas Register of American Manufacturers, The Public Register, Corporate Annual Reports, Internet search engines (e.g. Google, Ask).

“Cleaned Up by a Person Not Potentially Liable”

Brownfield Grant funding may be awarded for the assessment and cleanup of petroleum-contaminated sites provided they meet the requests below.

  1. The applicant/recipient has not dispensed or disposed of or owned the property during the dispensing or disposal of petroleum or petroleum product at the site; and
  2. The applicant/recipient did not exacerbate the contamination at the site and took reasonable steps with regard to the contamination at the site.

“Is not subject to any order issued under Resource Conservation and Recovery Act § 9003(h)”

Proposals from applicants that include requests for an Assessment Grant or Cleanup Grant to address petroleum-contaminated sites must not be subject to a corrective action order under RCRA § 9003(h).

For current recipients managing an Assessment Grant, RLF Grant, or Multipurpose Grant, the state or EPA must make the same determination for site(s) that will be addressed.

1.3.3 Mine-Scarred Lands

Mine-scarred lands are eligible for Brownfield Grant funding. EPA’s view is that “mine-scarred lands” are those lands, associated waters, and surrounding watersheds where extraction, beneficiation, or processing of ores and minerals (including coal) has occurred. For the purposes of this section, the definition of extraction, beneficiation, and processing is the definition found at 40 CFR § 261.4(b)(7).

Mine-scarred lands include abandoned coal mines and lands scarred by strip mining.

Examples of coal mine-scarred lands may include, but are not limited to:

  • abandoned surface coal mine areas;
  • abandoned deep coal mines;
  • abandoned coal processing areas;
  • abandoned coal refuse areas;
  • acid or alkaline mine drainage; and
  • associated waters affected by abandoned coal mine (or acid mine) drainage or runoff, including stream beds and adjacent watersheds.

Examples of non-coal hardrock mine-scarred lands may include, but are not limited to:

  • abandoned surface and deep mines;
  • abandoned waste rock or spent ore piles;
  • abandoned roads constructed wholly or partially of waste rock or spent ore;
  • abandoned tailings, disposal ponds, or piles;
  • abandoned ore concentration mills;
  • abandoned smelters;
  • abandoned cyanide heap leach piles;
  • abandoned dams constructed wholly or partially of waste rock, tailings, or spent ore;
  • abandoned dumps or dump areas used for the disposal of waste rock or spent ore;
  • acid or alkaline rock drainage; and
  • waters affected by abandoned metal mine drainage or runoff, including stream beds and adjacent watersheds.

1.4 Sites Not Eligible for Brownfield Grant Funding

The following three types of properties are not eligible for Brownfield Grant funding under CERCLA, even on a property-specific basis. Applicants/recipients should not propose these types of sites for funding.

  1. Facilities listed or proposed for listing on the National Priorities List.
  2. 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.
  3. Facilities that are subject to the jurisdiction, custody, or control of the U.S. government. Facilities owned by, or under the custody or control of, the federal government are not eligible for Brownfield Grant funding. EPA’s view is that this exclusion may not extend to:
    1. privately-owned, Formerly Used Defense Sites;
    2. privately-owned, Formerly Utilized Sites Remedial Action Program properties; and
    3. other former federal properties that have been disposed of by the U.S. government.

Note that land held in trust by the U.S. government for an Indian Tribe is not excluded from funding eligibility. In addition, eligibility for Brownfield Grant funding does not alter a private owner’s ability to recover costs from the federal government in cases where the previous federal government owner remains liable for environmental damages.

1.5 Particular Classes of Sites Eligible for Brownfield Grant Funding Only with Property-Specific Determinations

The following special classes of property are generally ineligible brownfield sites unless EPA makes a “property-specific determination” and determines they are eligible for funding. These include:

  • properties subject to planned or ongoing removal actions under CERCLA;
  • properties with 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 United States or an authorized state under RCRA, FWPCA, TSCA, or SDWA;
  • properties with 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;
  • properties that are land disposal units that have submitted a RCRA closure notification or that are subject to closure requirements specified in a closure plan or permit.
  • properties where there has been a release of PCBs and all or part of the property is subject to TSCA remediation; and
  • properties that include facilities receiving monies for cleanup from the LUST Trust Fund.

EPA’s approval of property-specific determinations will be based on whether or not awarding/approving the proposed activities will protect human health and the environment and either promote economic development or enable the property to be used for parks, greenways, and similar recreational or nonprofit purposes. See the FAQs for more information on how to prepare and submit a property-specific determination.

1.5.1 Facilities Subject to CERCLA Removal Actions

Properties (including parcels of properties) where there are removal actions may not receive funding, unless EPA makes a property-specific determination of funding eligibility.

EPA’s view is that a removal may be identified by the occurrence of one of the following events, whichever occurs first in time: EPA issues an action memo; EPA issues an Engineering Evaluation/Cost Analysis approval memo; EPA mobilizes onsite; EPA issues a notice of federal interest to one or more potentially responsible parties, which in emergencies may be made verbally; or EPA takes other actions that are consistent with a removal.

Once a removal action is complete, a property is eligible for Brownfield Grant funding without having to obtain a property-specific funding determination. EPA’s view is that, solely for the purposes of eligibility to receive Brownfield Grant funding, a removal is complete when the actions specified in the action memorandum are met, or when the contractor has demobilized and left the site (as documented in the “pollution report” or POLREP). Applicants/recipients proposing sites at which removal actions are complete must include documentation of the action being complete with their funding proposal.

Parcels of facilities not affected by removal action at the same property may apply for Brownfield Grant funding and may be eligible for funding on a property-specific basis. Property-specific funding decisions will be made in coordination with the on-scene coordinator to ensure that all removal and cleanup activities at the property are conducted in safe and protective manners and to ensure that the OSC retains the ability to address all risks and contamination.

Please note that if a federal brownfields-funded site assessment results in identifying the need for a new removal action, the recipient may continue to expend brownfields funds on additional grant-related activities. However, any additional expenditure of federal brownfields funds and any additional site assessment activities should be conducted in coordination with the OSC for the site.

1.5.2 Facilities to which a permit has been issued by the United States or an authorized state under RCRA, FWPCA, TSCA, or SDWA

Generally, in cases where a property or a portion of a property is permitted under the Resource Conservation and Recovery Act, Clean Water Act § 1321, the Safe Drinking Water Act, and/or the Toxic Substances and Control Act, the property, or portion of the property, may not receive funding without a property-specific determination. Therefore, applicants/recipients should review the following guidance regarding which types of permitted facilities may not receive funding unless EPA makes a property-specific determination to provide funding. Applicants/recipients should note that the exclusion for permitted facilities does not extend to facilities with National Pollutant Discharge Elimination System permits issued under the authorities of the Federal Water Pollution Control Act, but is limited to facilities issued permits under the authorities of the Oil Pollution Act (i.e., FWPCA § 1321).

In cases where one or more portions of a property are not eligible for funding, the applicant/recipient should identify the specific permit and situation that causes the property to be excluded. In addition, the applicant/recipient must include documentation that federal Brownfield Grant funding for the assessment or cleanup of the property will further the goals established for property-specific funding determinations as described in the FAQs.

In some cases, a facility may not have a permit or order because it is not in compliance with federal or state environmental laws requiring that it obtain a permit or the facility has failed to notify EPA of its regulatory status. Such facilities are not eligible for Brownfield Grant funding. For example, a RCRA treatment unit operator is required to obtain a permit and/or notify EPA of its operation. An operator that fails to fulfill those obligations will likely not have a permit or order as EPA will be unaware of its existence. Therefore, it is EPA’s view that such facilities are ineligible to receive brownfields funds as a result of their failure to comply with a basic regulatory requirement. Additional guidance on the eligibility of RCRA-permitted facilities, including facilities under administrative or court orders, including corrective action orders, is provided in the FAQs.

1.5.3 RCRA Sites

RCRA Facilities that are Eligible for Funding

EPA’s view is that the following types of RCRA facilities are eligible for Brownfield Grant funding and do not require property-specific determinations:

  1. RCRA interim status facilities that are not subject to any administrative or judicial order or consent decree;
  2. RCRA interim status facilities that are subject to administrative or judicial orders 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
  3. parcels of RCRA facilities that are not under the scope of a RCRA permit or administrative or judicial order.

RCRA Facilities that Require Property-Specific Determinations

EPA’s view is that the following types of RCRA facilities may not receive funding without a property-specific determination:

  1. RCRA-permitted facilities;
  2. RCRA interim status facilities with administrative orders requiring the facility to conduct corrective action or otherwise address contamination, including facilities with orders issued under the authorities of RCRA § 3008(a), § 3008(h), § 3013, and § 7003;
  3. facilities under court order or under an administrative order on consent or judicial consent decree under RCRA or CERCLA that require the facility to conduct corrective action or otherwise address contamination at the facility; and
  4. land disposal units that have notified EPA or an authorized state of their intent to close and have closure requirements specified in closure plans or permits.

1.5.4 RCRA Subtitle C Land disposal units with closure requirements specified in a closure plan or permit

RCRA hazardous waste landfills that have submitted closure notifications, as required under 40 CFR § 264.112(d) or § 265.112(d), generally will not be funded. This may include permitted facilities that have filed notification of closure and for which EPA and/or an authorized state is proceeding with final closure requirements for the facility. For interim status facilities, this is done through approval of a closure plan submitted with closure notification. For permitted facilities, this is routinely done as a modification to the permit, requested by the facility at the time of closure notification.

Please note that RCRA hazardous waste landfills that have submitted closure notifications may be eligible for Brownfield Grant funding with a property-specific determination.

1.5.5 Sites Contaminated with PCBs

CERCLA excludes from funding eligibility portions of facilities where there has been a release of PCBs that are subject to remediation under TSCA.

EPA’s view is that all portions of properties are eligible for brownfield site assessment funding, except where EPA has initiated an involuntary action with any person to address PCB contamination. Also, it is EPA’s view that all portions of properties are eligible for cleanup/remediation funding, except where EPA has an ongoing action against a disposer to address PCB contamination. However, any portion of a property where EPA has initiated an involuntary action with any person to address PCB contamination and portions of properties where EPA has an ongoing action against a disposer to address PCB contamination will require a property-specific determination to be eligible for Brownfield Grant funding, including:

  • there is a release (or disposal) of any waste meeting the definition of “PCB remediation waste” at 40 CFR § 761.3; and
  • at which EPA has initiated an involuntary action with any person to address the PCB contamination. Such involuntary actions could include:
    • enforcement action for illegal disposal;
    • Regional Administrator’s order to characterize or remediate a spill or old disposal (40 CFR § 761.50(b)(3));
    • penalty for violation of TSCA remediation requirements;
    • superfund removal action; or
    • remediation required under RCRA § 3004(u) or § 3004(v).

PCBs may be remediated under any one of the following provisions under TSCA:

  • § 761.50(b)(3), the directed characterization, remediation, or disposal action;
  • § 761.61(a), the self-implementing provision;
  • an approval issued under § 761.61(c), the risk-based provision;
  • § 761.61(b) to the level of PCB quantification (i.e., 1 ppm in soil);
  • an approval issued under § 761.77, the coordinated approval provision;
  • § 761.79, the decontamination provision;
  • an existing EPA PCB Spill Cleanup Policy; or
  • any future policy or guidance addressing PCB spill cleanup or remediation specifically addressing the remediation of PCBs at brownfield sites.

1.5.6 LUST Trust Fund Sites

CERCLA requires a property-specific determination for funding at those sites (or portions of properties) for which assistance for response activity has been obtained under Subtitle I of RCRA from the LUST Trust Fund. EPA’s view is that this provision may exclude UST sites where money is being spent on actual assessment and/or cleanup of UST/petroleum contamination.

However, in cases where the state agency has used LUST Trust Fund money for state program oversight activities on an UST site, but has not expended LUST Trust Funds for specific assessment and/or cleanup activities at the site, the site would be eligible for Brownfield Grant funding and does not need a property-specific determination. Such sites may receive funding on a property-specific basis, if it is determined that funding will protect human health and the environment and the funding will promote economic development or enable the creation of, preservation of, or addition to greenspace (see guidance on documenting eligibility for property-specific funding determinations provided in the FAQs.

Examples of sites receiving LUST Trust Fund monies that EPA would consider to be good candidates to receive Brownfield Grants or loans include:

  • all UST fields pilots (50 pilots);
  • sites (or portions of properties) where an assessment was completed using LUST Trust Fund monies and the state has determined that the site is a low-priority UST site, and therefore, additional LUST Trust Fund money cannot be provided for the cleanup of petroleum contamination, but the site still needs some cleanup and otherwise is a good candidate for economic revitalization; and
  • sites (or portions of properties) where LUST Trust Fund money was spent for emergency activities, but then the site was determined to be ineligible for further expenditures of LUST Trust Funds, yet the site needs additional funding for continued assessment and/or cleanup that will contribute to economic revitalization of the site.

1.6 Eligible Response Sites/Enforcement Issues

CERCLA 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. CERCLA § 101(40) defines an “eligible response site” by referencing the general definition of a “brownfield site” in § 101(39)(A) and incorporating the exclusions in § 101(39)(B). CERCLA places further limitations on the types of properties 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 properties that are otherwise excluded from the definition. Such property-specific determinations must be based upon a finding that limits an 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.

Also, please note that in providing funding for brownfield sites, and given that a limited amount of funding is available for Brownfield Grants, EPA’s goal is to not provide Brownfield Grant funding to sites where EPA has a planned or ongoing enforcement action. While EPA does not intend that the existence of a planned or ongoing enforcement action will necessarily disqualify a site from receipt of Brownfield Grant funding, EPA does believe it is necessary that EPA be aware of the existence of any such action in making funding decisions. As a result, EPA will conduct an investigation to evaluate whether a site is, or will be, subject to an enforcement action under CERCLA or other federal environmental statutes. EPA is requesting that applicants/recipients identify ongoing or anticipated environmental enforcement actions related to the brownfield site for which funding is sought.

2.1 Site-Specific Eligibility Requirements for Assessment Grant Sites 

EPA will determine site eligibility for Assessment Grants after the award of the grant throughout the project period. Assessment Grant recipients should expect to provide the information below for EPA to determine if a site is eligible for funding.

2.1.1 Basic Site Information

Recipients should identify: a) the name of the site; b) the address of the site, including zip code; and c) the current owner of the site.

2.1.2 Status and History of Contamination at the Site

Recipients should identify: a) whether this site is contaminated by hazardous substances or petroleum; b) the operational history and current use(s) of the site; c) environmental concerns, if known, at the site; and d) how the site became contaminated, and to the extent possible, describe the nature and extent of the contamination.

2.1.3 Brownfield Site Definition 

To be eligible for Brownfield Grant funding, sites must meet the definition of a brownfield site under CERCLA § 101(39) as described above. Please refer to Section 1.4 Sites Not Eligible for Brownfield Grant Funding for details. 

Recipients should affirm that the site is: a) not listed or proposed for listing on the National Priorities List; b) not 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 c) not subject to the jurisdiction, custody, or control of the U.S. government. (Please refer to CERCLA § 101(39)(B)(ii), (iii), and (vii) and above.)

2.1.4 Enforcement or Other Actions

Recipients should affirm there are no known ongoing or anticipated environmental enforcement or other actions related to the site.

Alternatively, recipients should identify known ongoing or anticipated environmental enforcement or other actions related to the site. If there are known ongoing or anticipated environmental enforcement or other actions related to the site, provide information on any inquiries, or orders from federal, state, or local government entities that the recipient is aware of regarding the responsibility of any party (including the recipient) for the contamination, or hazardous substances at the site, including any liens. The information provided may be verified, and EPA may conduct an independent review of information related to the recipient’s responsibility for the contamination or hazardous substances at the site, or the site’s eligibility.

2.1.5 Sites Requiring a Property-Specific Determination

Certain types of sites require a property-specific determination to be eligible for Brownfield Grant funding. Please refer to Section 1.5 above to determine whether your site requires a property-specific determination. 

  • If your site requires a property-specific determination, then recipients must provide the information requested in the latest FAQs. 
  • If not required, recipients should affirm that the site does not need a property-specific determination.

2.1.6  CERCLA/Petroleum Liability

Entities potentially liable for contamination on the site(s) are not eligible for Brownfield Grant funding. The following items are intended to help EPA ensure that you are not potentially liable under CERCLA § 107 for response costs at the site(s), or determine, if necessary, that your site(s) is eligible for funding as a petroleum site(s). Please respond to the following items fully and in the order that they appear. Note, based on your responses, EPA may need to obtain additional information to determine eligibility. 

If the site is contaminated with hazardous substances, recipients should respond to all the items under a.

If the site is contaminated with petroleum or petroleum product, recipients should respond to all the items under b., including the requirement to provide a petroleum determination letter.

If the site is comingled with hazardous substances and petroleum contaminants, recipients should determine whether the predominant contaminant is hazardous substances or petroleum, and respond to the corresponding items (as noted above).

If the site is contaminated with hazardous substances and petroleum, and the hazardous substances and petroleum-contaminated areas of the site are distinguishable, recipients should respond to all the items under a. and b., including the requirement to provide a petroleum determination letter.

a. Property Ownership Eligibility – Hazardous Substance Sites

For sites contaminated by hazardous substances, persons, including government entities, who may be found liable for the contamination under CERCLA § 107 are not eligible for grants. Liable parties may include all current owners and operators, former owners and operators of the site at the time of disposal of hazardous substances, and parties that arranged for, or contributed to, the disposal or treatment of hazardous substances on the site. Therefore, even owners who did not cause or contribute to the contamination may be liable.3

To be eligible for a Brownfield Grant to address hazardous substances at a brownfield property, recipients must demonstrate that: 

  • They are exempt from CERCLA liability; or 
  • They qualify for funding because the property is publicly owned; was acquired prior to January 11, 2002; and the recipient has not caused or contributed to a release or threatened release of hazardous substances at the property; or
  • They meet the requirements for asserting an affirmative defense to CERCLA liability through one of the landowner liability protections (e.g., the bona fide prospective purchaser liability protection per CERCLA § 101(40)); or
  • The hazardous substance(s) or pollutant(s) or contaminant(s) at the site is hazardous building material(s) that is not released into the environment per CERCLA §§ 101(22) and 107(a)

Please review sections 1., 2., 3., and 4. below and only provide responses to the section that pertains to your circumstance.

For additional information on the CERCLA liability framework and protections that may apply to local government acquisitions of contaminated property, see EPA’s Guidance: Superfund Liability Protections for Local Government Acquisitions.

  1. Exemptions to CERCLA Liability
    1. Recipient Does NOT/Will Not Own the Site at Time of Assessment

      If you, the recipient, do not own the site to be assessed, please:

      1. affirm that you did not arrange for the disposal of hazardous substances at the site or transport hazardous substances to the site, and that you did not cause or contribute to any releases of hazardous substances at the site;
      2. describe your relationship with the owner and the owner’s role in the work to be performed; and
      3. indicate how you will gain access to the site.
    2. Indian Tribes

      EPA does not consider Indian Tribes to be liable under CERCLA and, therefore, Tribes are exempt from demonstrating that they meet the requirements of a CERCLA liability defense to be eligible for a Brownfield Grant. 

      Affirm the recipient is an Indian Tribe and is therefore exempt from demonstrating that they meet the requirements of a CERCLA liability defense.

    3. Alaska Native Village Corporations and Alaska Native Regional Corporations

      Alaska Native Village Corporations and Alaska Native Regional Corporations that acquired title to property from the U.S. Government under the Alaska Native Claims Settlement Act are excluded from the CERCLA definition of “owner/operator” and are therefore exempt from CERCLA liability for any previous contamination at the property provided that the Alaska Native Village Corporation or Alaska Native Regional Corporation did not cause or contribute to the release or threatened release of a hazardous substance. Entities that satisfy these conditions are eligible for a Brownfield Grant.

      Note, Alaska Native Village Corporations and Alaska Native Regional Corporations that purchased the subject property must respond to section 2., 3., or 4. below as appropriate.

      Provide the following to demonstrate that the Alaska Native Village Corporation or Alaska Native Regional Corporation is exempt from CERCLA liability:

      1. Describe in detail the circumstances of the acquisition.
      2. Provide the date on which the property was acquired.
      3. Identify whether you caused or contributed to any release of hazardous substances at the site.
    4. Property Acquired Under Certain Circumstances by Units of State and Local Government

      Per CERCLA § 101(20)(D), state and local units of government that acquired ownership or control of a property by any of the circumstances listed below and did not cause or contribute to the release or threatened release of a hazardous substance at the property, are exempt from liability for any previous contamination at that property and, therefore, do not have to demonstrate that they meet the requirements of a CERCLA liability defense to be eligible for a Brownfield Grant. Such circumstances include:

      • Seizure or in connection with law enforcement activity;
      • Bankruptcy;
      • Tax delinquency; or
      • Abandonment.

      Further, EPA will treat acquisitions by escheat and inter-governmental transfers through uniquely governmental functions as exempt from liability if the other conditions in CERCLA § 101(20)(D) are met.

      See the latest FAQs for additional information on the types of acquisitions that are not exempt from CERCLA liability.

      Provide the following to demonstrate that the state or local government is exempt from CERCLA liability:

      1. Describe in detail the circumstances (from the list above) under which the property was acquired.
      2. Provide the date on which the property was acquired. 
      3. Identify whether all disposal of hazardous substances at the site occurred before you acquired the property.
      4. Affirm that you have not caused or contributed to any release of hazardous substances at the site. 
      5. Affirm that you have not, at any time, arranged for the disposal of hazardous substances at the site or transported hazardous substances to the site.
  2. Exceptions to Meeting the Requirements for Asserting an Affirmative Defense to CERCLA Liability
    1. Publicly Owned Brownfield Sites Acquired Prior to January 11, 2002

      Per CERCLA § 104(k)(2)(C), if a recipient that is a public entity (such as a state or local government) acquired property prior to January 11, 2002, the recipient is eligible for a Brownfield Grant and may use grant funds to address contamination at the property, even if the entity does not qualify as a bona fide prospective purchaser, provided the recipient did not cause or contribute to the release or threatened release of a hazardous substance at the property.

      Provide the following information to demonstrate that the recipient qualifies for the exception at CERCLA § 104(k)(2)(C): 

      1. Describe in detail the circumstances under which the property was acquired.
      2. Provide the date on which the property was acquired. 
      3. Identify whether all disposal of hazardous substances at the site occurred before you acquired the property.
      4. Affirm that you have not caused or contributed to any release of hazardous substances at the site. 
      5. Affirm that you have not, at any time, arranged for the disposal of hazardous substances at the site or transported hazardous substances to the site.
  3. Landowner Protections from CERCLA Liability

    To be eligible to expend Brownfield Grant funding at a site owned by an eligible entity (including state, local government, nonprofit organizations, etc.), the recipient must establish that it is a bona fide prospective purchaser, contiguous property owner, or innocent landowner, as defined in CERCLA, unless the recipient qualifies for one of the exemptions from liability noted in this section 1., 2., or 4. 

    Recipients asserting that they meet the BFPP, CPO, or ILO liability protection must review EPA’s Landowner Liability Protections webpage and contact their EPA Project Officer to determine which scenario applies. For more comprehensive guidance on the landowner liability protections, see EPA’s Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners ("Common Elements").

    1. Bona Fide Prospective Purchaser Liability Protection

      Recipients that acquired property after January 11, 2002, and are asserting the BFPP liability protection (the most common liability protection) must demonstrate that they complied or are complying with all of the requirements listed below. 

      • The owner must have acquired title to a property after January 11, 2002.
      • The owner must have conducted all appropriate inquiries prior to acquiring the property. AAI, typically met by conducting a Phase I Environmental Site Assessment using the ASTM E1527-21 (or ASTM E2247-16) standard practice, must be conducted or updated within one year prior to the date the property is acquired (i.e., the date on which the entity takes title to the property). In addition, certain aspects of the AAI or Phase I Environmental Site Assessment must be updated, prior to property acquisition, if the activities were conducted more than six months prior to the date of acquisition.
      • The owner must not be liable in any way for contamination at the site or affiliated with any other person potentially liable for the contamination. (Affiliations include familial, contractual, financial, or corporate relationships that are the result of a reorganization of a business entity with potential liability.)
      • All disposal of hazardous substances at the site occurred before the person acquired the site.
      • The owner must exercise appropriate care by taking reasonable steps to address releases, including stopping continuing releases and preventing threatened future releases and exposures to hazardous substances on the site.
      • The owner must comply with any land use restrictions and not impede the effectiveness or integrity of any institutional controls associated with response actions at the site.
      • The owner must provide full cooperation, assistance, and access to authorized persons.
      • The owner must comply with any CERCLA information requests and administrative subpoenas, and provide all legally required notices with respect to the discovery or release of any hazardous substances found at the site.
      • The owner must not impede performance of a response action or natural resource restoration.

      Demonstrate that the recipient meets the requirements for the BFPP CERCLA liability protection.

      1. Information on the Property Acquisition: You may combine responses to the following into one response, though please be sure to answer each item fully. Provide information on:
        1. how you acquired (or will acquire) ownership (e.g., negotiated purchase from a private individual, voluntary purchase or transfer from another governmental unit, donation or gift, inheritance or bequest, eminent domain, or other circumstance (describe));
        2. the date you acquired or will acquire the property; 
        3. the name and identity of the party from whom you acquired or will acquire ownership (i.e., the transferor); and
        4. all familial, contractual, corporate, or financial relationships or affiliations you have or had with all prior owners or operators (or other potentially responsible parties) of the property (including the person or entity from which you acquired the property).
      2. Pre-Purchase Inquiry: Describe any inquiry by you or others into the previous ownership, uses of the property, and environmental conditions conducted prior to taking ownership. Please include the items below in your description. 
        1. The types of site assessments performed (e.g., ASTM E1527-21 Phase I), the dates of each assessment, and the entity for which they were performed (state whether the assessment was performed specifically for you, or if not, the name of the party that had the assessment performed and that party’s relationship to you). 
        2. Affirm the AAI investigation or Phase I environmental site assessment was performed by an Environmental Professional (as defined in s defined in 40 CFR § 312.10) and the required declaration by the environmental professional is included in a written report (per 40 CFR § 312.21(d)). 
        3. If the original AAI investigation or Phase I environmental site assessment was conducted more than 180 days prior to the date you acquired the property, affirm that you conducted the appropriate updates in the original assessment within 180 days prior to your acquisition of the property to take advantage of the bona fide prospective purchaser provision.
      3. Timing and/or Contribution Toward Hazardous Substances Disposal: Identify whether all disposal of hazardous substances at the site occurred before you acquired (or will acquire) the property and whether you caused or contributed to any release of hazardous substances at the site. Affirm that you have not, at any time, arranged for the disposal of hazardous substances at the site or transported hazardous substances to the site.
      4. Post-Acquisition Uses: Describe all uses of the property since you acquired ownership (or the uses that you anticipate once you acquire the property) through the present, including any uses by persons or entities other than you. Please provide a timeline with the names of all current and prior users during the time of your ownership; the dates of all uses; the details of each use, including the rights or other reason pursuant to which the use was claimed or taken (e.g., lease, license, trespass); and your relationship to the current and prior users. Alternatively, indicate if the property has been vacant since acquisition. 

      5. Continuing Obligations: Describe in detail the reasonable steps4 you took with respect to hazardous substances found at the site to:

        1. stop any continuing releases;
        2. prevent any threatened future release; and
        3. prevent or limit exposure to any previously released hazardous substance.

        Please affirm that you are:

        1. complying with any land use restrictions and not impeding the effectiveness or integrity of any institutional controls;
        2. assisting and cooperating with those performing the assessment and providing access to the property;
        3. complying with all information requests and administrative subpoenas that have or may be issued in connection with the property; and 
        4. providing all legally required notices.

      For further information, please see the latest FAQs on All Appropriate Inquiries and the Brownfields All Appropriate Inquiries webpage.

    2. Non-Publicly Owned Sites Acquired Prior to January 11, 2002

      Although the statute limits eligibility for the BFPP liability protection to entities that acquire property after January 11, 2002, a Brownfield Grant recipient that is not a public entity (such as a nonprofit organization), for grant purposes only, is eligible for a grant if it acquired the site prior to January 11, 2002, provided the recipient can demonstrate it performed environmental due diligence that was customary at the time and did not cause or contribute to the release or threatened release of a hazardous substance. (For a site acquired by a public entity prior to January 11, 2002, please review section 2. above.)

      For recipients that are not public entities that acquired property prior to January 11, 2002, provide the information requested below.

      1. Describe in detail the circumstances of the acquisition.
      2. Provide the date on which the property was acquired. 
      3. Discuss the environmental due diligence you performed prior to your acquisition of the site and/or affirm that it was customary at the time of acquisition. 
      4. Identify whether all disposal of hazardous substances at the site occurred before you acquired the property.
      5. Affirm that you have not caused or contributed to any release of hazardous substances at the site. 
      6. Affirm that you have not, at any time, arranged for the disposal of hazardous substances at the site or transported hazardous substances to the site. 
      7. Describe in detail the reasonable steps4 you took with respect to hazardous substances found at the site to:
        1. stop any continuing releases;
        2. prevent any threatened future release; and
        3. prevent or limit exposure to any previously released hazardous substance.

      For more information on the CERCLA landowner liability protections, please refer to Fact Sheet: EPA Brownfields Grants, CERCLA Liability, and All Appropriate Inquiries.

      Recipients may also contact their EPA Project Officer with questions about BFPP, CPO, or ILO eligibility.

  4. Sites with Hazardous Building Material that is Not Released into the Environment

    1. If the brownfield site has a hazardous substance contained in the building materials (e.g., insulation, flooring, caulk, etc.) and the hazardous substance has not been released (and there is no threat of release) into the outdoor environment (i.e., air, groundwater, land surface, etc.), then CERCLA § 107 liability may not apply. The site may be eligible for funding, provided all other site eligibility requirements are met.

      If there has been a release or there is a threatened release of the hazardous substance(s) into the outdoor environment, review sections 1., 2., and 3. above and only provide responses to the section that pertains to your circumstance.

      Affirm that there has been no release and that there is no threat of release of the hazardous substance(s) from building materials into the outdoor environment based on the site conditions.

      For more information on the eligibility analysis for sites with hazardous building materials (e.g., asbestos, lead-based paint) that are not released into the outdoor environment, please refer to the latest FAQs.

b. Property Ownership Eligibility – Petroleum Sites

In addition to the basic Brownfield Grant eligibility criteria, eligibility for petroleum sites is determined by applying the criteria established in the statute: there can be no viable responsible party, the recipient cannot be potentially liable for cleaning up the site, and the site must not be subject to a RCRA corrective action order. If a party is identified as being responsible for contamination at the site and that party is financially viable, then the site is not eligible for Brownfield Grant funding (refer to Section 1.3.2 above for more information). Generally, the state will determine petroleum site eligibility. Where the state is unable to make the eligibility determination, EPA will make the determination. EPA will make the determination for Tribes.

Non-Tribal recipients must provide the information required for a petroleum site eligibility determination (listed below) to your state so that the state can make the necessary determination on petroleum site eligibility. You must provide EPA with a copy of the state determination letter. If the state is unable to make the determination, please attach a copy of the request you sent to the state. (Note: You must provide EPA with the date you submitted your request to the state to make the petroleum site determination. EPA will make the petroleum site eligibility determination if a state is unable to do so following a request from a recipient.) Also, in your letter to the state, please request that the state provide information regarding whether it applied EPA’s guidelines in making the petroleum determination, or if not, what standard it applied. 

Tribal recipients must submit the information required for a petroleum site eligibility determination (listed below). EPA will make the petroleum site eligibility determinations for Tribes.

  1. Information Required for a Petroleum Site Eligibility Determination
    1. Current and Immediate Past Owners: Identify the current and immediate past owner of the site. Alternatively, if one or more underground storage tanks are the source of the petroleum contamination, identify the current and immediate past owner of the UST(s).
    2. Acquisition of Site: Identify when and by what method the current owner acquired the property (e.g., purchase, tax foreclosure, donation, eminent domain).
    3. No Responsible Party for the Site: Identify whether the current and immediate past owner of the real property (or if one or more UST is the source of the petroleum contamination, identify the current and immediate past owner of the UST(s)) : (i) dispensed or disposed of petroleum or petroleum product contamination, or exacerbated the existing petroleum contamination at the site; (ii) owned the site (or in the case of UST-related contamination, owned the UST(s)), when any dispensing or disposal of petroleum (by others) took place; and (iii) took reasonable steps with regard to the contamination at the site.
    4. Assessed by a Person Not Potentially Liable: Identify whether you (the recipient) dispensed or disposed of petroleum or petroleum products, or exacerbated the existing petroleum contamination at the site, and whether you took reasonable steps with regard to the contamination at the site.
    5. Judgments, Orders, or Third-Party Suits: Provide information that no responsible party (including the recipient) is identified as potentially liable for cleaning up 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 of the site (or where a UST(s) is involved, the current or immediate past owner of the UST(s)), that would, if successful, require the assessment, investigation, or cleanup of the site.
    6. Subject to RCRA: Identify whether the site is subject to any order under § 9003(h) of the Solid Waste Disposal Act.

    7. Financial Viability of Responsible Parties: For any current or immediate past landowners (or where appropriate, current or immediate past UST 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 (d) 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. For more information, see Section 1.3.2 above.

2.1.7 Waiver of the $200,000 Site-Specific Activity Limit for Assessment Grants 

Assessment Grant recipients may request a waiver of the $200,000 limit on site-specific activities and request up to $350,000 for a single site based on the anticipated level of contamination, size, or status of ownership of the site. Waiver of this funding limit for a brownfield site must be submitted to and approved by the EPA Project Officer prior to the expenditure of funding exceeding $200,000. In no case may funding for site-specific activities exceed $350,000 on a site receiving a waiver.

1CERCLA as amended by the Small Business Liability Relief and Brownfields Revitalization Act enacted in 2002 and the Brownfields Utilization, Investment, and Local Development Act enacted in 2018.

2For purposes of determining petroleum Brownfield Grant eligibility, “reasonable steps with regard to contamination at the site” includes, as appropriate: stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental, or natural resource exposure to earlier petroleum or petroleum product releases. Reasonable steps are discussed in more detail on pages 9-12 of EPA’s March 6, 2003, “Common Elements” guidance.

3Note that under Section 7 of the BUILD Act, a government entity that acquired property prior to January 11, 2002, is eligible for Brownfield Grant funding even if it does not qualify as a BFPP, so long as the entity did not cause or contribute to the release or threat of release of a hazardous substance at the property.

4Please note that reasonable steps may include actions such as limiting access to the property, monitoring known contaminants, and complying with state and/or local requirements. The steps taken to prevent or limit exposure to previously released hazardous substances may depend, for example, on such things as the location of the site in relation to the public and whether the public has been known to use (or even trespass on) the site.

Brownfields and Land Revitalization

Contact Us about Brownfields and Land Revitalization
Contact Us about Brownfields and Land Revitalization to ask a question, provide feedback, or report a problem.
Last updated on October 8, 2026