Thursday, April 12, 2012

Is your site eligible for EPA Brownfield Grant funding?

EPA Region 4 has created the following list of questions that you should answer to determine site eligibility.


EPA R4 BROWNFIELD GRANT
SITE ELIGIBILITY DETERMINATION OUTLINE

To be used for determining site eligibility for Phase II Environmental Site Assessments and Cleanups.

A.  GENERAL INFORMATION

1. Grantee/Applicant Name:

2. If Grant:
Grant Number:
Grant Type (104(k) Assessment, 104(k) RLF):

3. Work to be conducted (Phase II Assessment, Phase III Assessment, Cleanup):

4. How much funding do you anticipate spending on the site?  Please note that there are funding limitations for site-specific activities.  For assessments, no more than $200,000 per site, with the possibility of a waiver for up to $350,000.  For cleanups, no more than $200,000 per site.

5. Date of proposed work:

6. Date of this document:


B.  BASIC SITE INFORMATION

1.  Site Name:

2.  Site Address (and County): 

3.  Who is the current owner of the site?

4. Describe grantee’s or applicants relationship with the owner, and the owner’s role in the work to be performed:

5. Known or Suspected Contaminant(s) (check one):
□ Hazardous Substances
□ Mine Scarred Lands
□ Controlled Substances
□ Hazardous Substances Commingled with Petroleum   
□ Petroleum Only

6. Identify when and how the site became contaminated; describe previous known uses.  If the land has been vacant for many years, why does the grantee think that it is contaminated?

7.  Does the site meet the definition of a Brownfield Site?  (Is the site “real property, the expansion, redevelopment or reuse of which is complicated by the presence or potential presence of hazardous substances, pollutants or contaminants”?)
□ YES  □ NO


C.  SITES NOT ELIGIBLE FOR FUNDING BY STATUTE

The grantee must supply the following information to the best of their knowledge:

1.  Is the facility listed (or proposed for listing) on the National Priorities List?  □ YES  □ NO

2.  Is the facility subject to unilateral administrative orders, court orders, administrative orders on consent, or judicial consent decrees issued to or entered into by parties under CERCLA?
□ YES  □ NO


3.  Is the facility subject to the jurisdiction, custody, or control of the US government. (Land held in trust by the US government for an Indian tribe is eligible.)  □ YES  □ NO

Note: If the answer is YES to any of the above (C.1-3) the property is not eligible. 


D.  SITES ONLY ELIGIBLE FOR FUNDING WITH A PROPERTY SPECIFIC DETERMINATION BY EPA:

Certain properties can only be approved with a Property Specific Determination by EPA.  The grantee must provide answers to the following questions to the best of their knowledge:

1.  Is the site/facility subject to a planned or ongoing CERCLA removal action?  □ YES  □ NO

2.  Has the site/facility been the subject of a unilateral administrative order, court order, an administrative order on consent or judicial consent decree that has been issued to or entered into by the parties, or been issued a permit by the U.S. or an authorized state under the Solid Waste Disposal Act (as amended by the Resource Conservation and Recovery Act (RCRA)), the Federal Water Pollution Control Act (FWPCA), the Toxic Substances Control Act (TSCA), or the Safe Drinking Water Act (SWDA)?  □ YES  □ NO

3.  Is the site/facility subject to corrective action orders under RCRA (sections 3004(u) or 3008(h)) and has there been a corrective action permit or order issued or modified to require corrective measures?  □ YES  □ NO

4.  Is the site/facility a land disposal unit that has submitted a RCRA closure notification under subtitle C of RCRA and is subject to closure requirements specified in a closure plan or permit?  □ YES  □ NO

5.  Has the site/facility had a release of polychlorinated biphenyls (PCBs) that is subject to remediation under TSCA?  □ YES  □ NO

6.  Has the site/facility received funding for remediation from the leaking Underground Storage Tank (LUST) Trust Fund?  □ YES  □ NO

Note: If the answer is YES to any of the above (D. 1-6), a property specific determination is required.  The grantee or TBA applicant must complete the remaining applicable portions of this outline and submit additional information, as outlined in Appendix A to this document.

E. HAZARDOUS SUBSTANCE/COMMINGLED CONTAMINATION SITES (for Petroleum only sites, skip to F.)

1.  Does the grantee own the site?  □ YES  □ NO

2.  Answer the following if the grantee is the current site owner.  (If the grantee is not the current site owner, skip to 3) :
           
a.      Is the owner a  □ Unit of State or Local Government  or  □ Other  

b.     If the owner is a governmental unit, how was the property acquired?  
     Tax Foreclosure    Donation    Eminent Domain    Bought it outright 
            Other (Explain):  
Date acquired:_____________________
             
c.      Do they have a defense to CERCLA liability?  (see FY12 ARC Guidelines)
□ YES – Involuntary Acquisition
            Bankruptcy, tax delinquency, abandonment, or other similar circumstances.
□ YES – Bona Fide Prospective Purchaser (BFPP)
Did the owner conduct Pre-purchase Inquiry (EPA All Appropriate Inquiry,
ASTM standards, or other) prior to acquiring property? 
□ YES  □ NO
Did the owner take reasonable steps with regards to the contamination at the site?
□ YES  □ NO
□ YES – Contiguous Property Owner
□ YES – Third Party or Innocent Land Owner
□ YES – Indian Tribe
□ NO

d.     Are they liable at the site as an □ Operator,  □ Arranger, or □ Transporter
OR  □ None Applicable

e.      Did all disposal of hazardous substances at the site occur before they acquired the property?  □ YES   □ NO

f.       Did they cause or contribute to any release of hazardous substances at the site?
□ YES   □ NO

3.         Answer the following if the grantee is not the site owner:

a.  Is the grantee potentially liable at the site as an □ Operator,  □ Arranger,  □ Transporter
b.  Is the grantee affiliated with the site owner (familial, contractual, financial)
OR  □ None Applicable


F.  PETROLEUM ONLY CONTAMINATION SITES

Petroleum sites need a written site eligibility determination by the state or EPA. 

1. If the state has made the petroleum eligibility determination, the grantee must provide EPA with the letter from the state.  

2.  If the state was unable to make the determination, EPA must make the determination consistent with the Guidelines (note that EPA staff will need to refer to the most recent ARC Guidelines to conduct the petroleum determination).  The grantee must provide information regarding the following:

a. Whether the site is of “relatively low risk” compared with other “petroleum-only” sites in the state.  Two key questions for this determination follow:
1. Have Leaking Underground Storage Tank funds been expended at this site?
□ YES  □ NO

2. Have Federal Oil Pollution Act response funds been expended at this site?
□ YES  □ NO
           
b.  Whether there is a viable responsible party at the site.  Key questions for this determination follow:
1. Was the site last acquired through tax foreclosure, abandonment or equivalent government proceedings? □ YES  □ NO

2. Has a responsible party been identified through:
a) a judgment rendered in a court of law or an administrative order that would require any party to assess, investigate, or cleanup the site; □ YES  □ NO    or
b) a filed enforcement action brought by federal or state authorities that would require any party to assess, investigate, or cleanup the site; □ YES  □ NO    or
c) a citizen suit, contribution action or other third party claim against the current or immediate past owner, that would, if successful, require that party to assess, investigate, or clean up the site.  □ YES  □ NO;
Skip to “b.5” if the site was acquired through tax foreclosure, abandonment or equivalent government proceedings; if not, answer question b.3 and 5.4.

3.  The current owner is: _______________________ [fill in the blank] Has the current owner:
a) dispensed or disposed of petroleum or petroleum product at the site? 
□ YES  □ NO
b) owned the property during the dispensing or disposal of petroleum product at the site? □ YES  □ NO
e) exacerbated the contamination at the site? □ YES  □ NO
d) taken reasonable steps with regard to contamination at the site,
□ YES  □ NO. 

4.  The immediate past owner is: _______________________ [fill in the blank] Has the immediate past owner:
a) dispensed or disposed of petroleum or petroleum product at the site?  □ YES  □ NO
b) owned the property during the dispensing or disposal of petroleum product at the site? □ YES  □ NO
c) exacerbated the contamination at the site? □ YES  □ NO
d) taken reasonable steps with regard to contamination at the site,
□ YES  □ NO

5.  Based on the above, for purposes of Brownfield funding, is there a responsible party?  □ YES  □ NO   If “YES” go on to #6, if “NO” proceed directly to F.2.C.

6.  If there is a responsible party, is that party viable (has adequate financial resources to pay for assessment of the site). □ YES  □ NO  If “NO”, explain the basis for that conclusion:

If there is a viable responsible party, the petroleum site is ineligible. If there is no responsible party, or if there is a responsible party who is not viable, continue. NOTE: States may apply their own laws and regulations to make the petroleum site determination instead of the previous questions; if they do so, the grantee must submit their determination and rationale.

c. Whether the grantee is potentially liable for cleaning up the site.  Key questions for this determination follow:
1. Has the grantee ever:
a) dispensed or disposed of petroleum or petroleum product at the site, or owned the property during the dispensing or disposing of petroleum? 
□ YES  □ NO
b) exacerbated the contamination at the site? □ YES  □ NO

d.  Is the site subject to any order issued under Sec. 9003(h) of the Solid Waste Disposal Act?  □ YES  □ NO


G.  ACCESS
Does grantee have access or an access agreement for this property?    □ YES  □ NO  


H.  SITE ELIGIBILITY DETERMINATION BY EPA PROJECT OFFICER
Please Note:  If there are any questions on eligibility, OR if the grantee owns the site it wishes to work on, the P.O. should consult with the Regional Brownfield Coordinator, and as necessary EPA legal counsel.

Site □ is / □ is not eligible for site assessment activities using EPA Brownfield Funds
-- OR --
□ Site is eligible but requires an EPA Property-Specific Determination, for which additional information was provided.

________________________________________                _______________________
EPA Project Officer                                                                                                                Date:


I.  EPA NOTIFICATION TO APPLICANT OF SITE ELIGIBILITY

 Date Sent :                                               Copy of Notification Attached:    □ YES  □ NO

APPENDIX A:  [IF REQUIRED] INFORMATION TO SUPPORT PROPERTY SPECIFIC DETERMINATION by EPA
Grantee must explain why Brownfield financial assistance is needed and how it will protect human heath and the environment and either promote economic development or enable the creation of, preservation of, or addition to parks, greenways undeveloped property, other recreational property, or other property used for nonprofit purposes.    

Here's a link to the WORD version of this document - LINK