Brownfield Grant Application (18-FD-c)
The Brownfields Law created new funding mechanisms for brownfields assistance. “Brownfields” are defined by the Brownfields Law as “…real property, the expansion, redevelopment, or resuse of which may be complicated by the presences or potential presence of a hazardous substances, pollutant, or contaminant.” See 42 USC 9601(39). The EPA Brownfields Program provides funding for three types of brownfields grants:
- Brownfields Assessment Grants - Grants that provide funds to inventory, characterize, assess, and conduct planning (including cleanup planning) and community involvement related to brownfield sites;
- Brownfields Revolving Loan Fund (RLF) Grants – Grants that provide funding for a recipient to capitalize a revolving fund and to make loans and provide subgrants to carry out cleanup activities at brownfield sites; and
- Brownfields Cleanup Grants – Grants used to carry out cleanup activities at a specific brownfield site owned by the applicant.
See the FY14 Guidelines for Brownfields Revolving Loan Fund Grants, page 1.
The EPA is required to publish guidance regarding the preparation of proposals for assessment, cleanup and RLF grants. This section is based on the guidelines for 2014, but the guidance documents may change from year to year, so the developer should refer to the latest version published on the EPA’s Brownfields Application Website. Kansas State University’s Technical Assistance to Brownfields Website (TAB) website is also a good source for information regarding the proposal process.
This section addresses the application process for obtaining assessment, cleanup, and RLF grants. In addition, there is a Brownfields Job Training Grant which provides environmental training for residents of brownfields communities. More information regarding the Brownfields Job Training Grant can be found on the EPA Brownfields and Land Revitalization Website;.
In addition to creating grants for brownfields revitalization, the Brownfields Law provides protection from CERCLA liability to certain PRPs. Under CERCLA, a party can be liable for a release or threatened release of a hazardous substance if the PRP:
- Currently owns or operates the property, or owned or operated the property at the time of disposal of hazardous substances;
- Arranged for hazardous substances to be disposed of or transported to the site for disposal; or
- Transported hazardous substances to the site.
Because CERCLA employs a strict liability scheme, all PRPs may be liable for the entire cleanup. This includes current owners who took no part in the disposal of the hazardous wastes. Consequently, the Brownfields Law created four limitations to CERCLA liability in order to shield certain groups of PRPs. These limitations apply to:
- Bona Fide Prospective Purchasers (BFPPs) – A BFFP is a new landowner who acquired the contaminated property after the disposal of hazardous substances. In order to be protected as a BFPP a PRP must have acquired the property after January 11, 2002 and must satisfy the criteria found in CERCLA Section 101(40) (42 USC 9601(40)). See 42 USC 6601(4); Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”).
- Contiguous Property Owners – A contiguous property owner is a PRP who owns property that is “contiguous,” or otherwise similarly situated to, a facility that is the only source of contamination found on his property. In other words, it protects adjacent landowners who did not know of or cause the pollution and who are not affiliated with the party responsible for the pollution. In order to be protected as a contiguous property owner a PRP must satisfy the criteria found in CERCLA Section 107(q)(1)(A) (42 USC 9607(q)(1)(A)). See Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”).
- Innocent Landowners – The Brownfields Law expanded and elaborated on the definition of innocent landowner found in Section 107(b)(3) of CERCLA. Under the current law, a PRP may be protected as an innocent landowner if:
- The property was purchased without knowledge of the contamination ( Section 101(35)(A)(i));
- The PRP is a government who acquires the property though escheat, condemnation, eminent domain, or an involuntary transfer ( Section 101(35)(A)(ii)), or;
- The PRP inherited the property ( Section 101(35)(A)(iii)).
All of the criteria in both CERCLA Section 107(b)(3) (42 USC 9607(b)(3)) and CERCLA Section 101(35)(A) (42 USC 9601(35)(A)) must be satisfied in order for the PRP to qualify as an innocent landowner. See Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”).
Criteria that are common to all three liability limitations are referred to by the EPA as “common elements.” These common elements include:
- All Appropriate Inquiry (this will often include a Phase I Environmental Site Assessment);
- Affiliation (BFFPs and contiguous property owners must not be affiliated with other PRPs);
- Land Use Restrictions and Institutional Controls;
- Reasonable Steps (to stop continuing releases, prevent future threatened releases, and limit exposure);
- Cooperation, Assistance and Access (to persons authorized to conduct response actions);
- Compliance with Information Requests and Administrative Subpoenas; and
- Providing Legally Required Notices.
For more information regarding common elements and CERCLA liability limitations, see Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”).
PRPs under CERCLA are not eligible for brownfield grants. This includes government entities who are PRPs because they own a contaminated site. Consequently, PRPs who apply for an Assessment, Revolving Loan Fund, or Cleanup (ARC) grant (especially a cleanup grant, where the entity must own the site to apply) must demonstrate that they meet the criteria for one of the liability limitations listed above.
The Federal Brownfields Tax Incentive sunset on December 31, 2011 and was not renewed. Therefore, the incentive cannot be claimed for tax years after 2011.
Brownfield Grant Application Process
18-FD-c.1 – Are Both the Site and Developer Eligible for an ARC Grant?
Both the developer and the site must be eligible to apply for an ARC grant. The following entities are eligible to apply for an ARC grant:
- A General Purpose Unit of Local Government (see 40 CFR 31 for a definition of “local government”);
- A Land Clearance Authority or other quasi-government entity that operates under the supervision and control of, or as an agent of, a general purpose unit of local government;
- A Government Entity Created by the State Legislature;
- A Regional Council or group of General Purpose Unites of Local Government;
- A Redevelopment Agency that is chartered or otherwise sanctioned by a state;
- A State;
- An Indian Tribe other than in Alaska;
- An Alaskan Native Regional Corporation, Alaskan Native Village Corporation, or a Metlakatla Indian Community; and
- Nonprofit Organizations (Cleanup grants only).
Funding may be used to provide subgrants of financial assistance. Subgrants may only be issued to eligible subgrantees. Subrantees generally fall into one of the categories listed above and are co-applicants or members of a coalition that have applied for an ARC grant along with the grantee. When providing subgrants, the grantee must comply with the subgrant or subaward procedures found in 40 CFR 30 and 40 CFR 31. Subgrants must be consistent with the standards for distinguishing between vendor transactions and subgrant assistance under Subpart B Section .210 of OMB Circular A-133, and the definitions of subaward at 40 CFR 30.2(ff) or subgrant at 40 CFR 31.3, as applicable.
It should be noted that for-profit developers cannot be ARC grant recipients. Moreover, recipients generally cannot award subgrants to for-profit developers. See OMB Circular A-133. Recipients must compete procurement and service contracts and perform a price analysis in accordance with 40 CFR 31.36. Recipients may not use subgrants to avoid competitive procurement requirements. See FY14 Guidelines for Brownfields Cleanup Grants, page 27.
The following types of sites are eligible for ARC grants:
- Sites that meet the definition of a brownfield (see above);
- Sites that are contaminated by controlled substances;
- Sites that are contaminated by petroleum or a petroleum product (the site must meet the criteria found in CERCLA Section 101(39)(D)(ii)(II)); or
- Mine-scarred lands.
The following sites are not eligible for brownfields funding, even if they fall within one of the categories listed above:
- 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 the parties under CERCLA; or
- Facilities that are subject to the jurisdiction, custody, or control of the United States government.
The following sites are ineligible for brownfields funding unless the EPA makes a “property-specific determination”:
- Properties subject to planned or ongoing removal actions under CERCLA;
- Properties with facilities that have been issued or entered into a unilateral administrative order, 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 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 form the LUST trust fund.
EPA may only award funds to property-specific determination sites if it finds that financial assistance will “…protect human health 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.” See CERCLA Section 101(39)(C) (42 USC 9601(39)(C)); FY14 Guidelines for Brownfields Cleanup Grants, Appendix 1.
18-FD-c.2 to 18-FD-c.6 – Is the Developer Applying for a Cleanup Grant?; Draft Proposal and Draft Analysis of Brownfield Cleanup Alternatives (ABCA)
Developers who are applying for a cleanup grant must meet community notification requirements before submitting a proposal. The first step in the community notification process is to prepare a draft proposal and a draft ABCA. The draft ABCA must be attached to the draft proposal and should briefly summarize information about the site, contamination issues, cleanup standards, applicable laws, cleanup alternatives considered, and the proposed cleanup.
The developer must notify the community of the availability of the draft proposal and ABCA and invite comments at least two weeks prior to the submission of the proposal. The notice must also specify the date and time of the required public meeting which must be held prior to submission. The draft ABCA, a copy of the notice, copies of the comments received (or a summary) and the developer’s responses to the comments should all be attached to the submitted proposal. See FY14 Guidelines for Brownfields Cleanup Grants, Pages 21-22.
Developers who intend to use RLF grant funds to assist in the cleanup of a brownfield site must also prepare an ABCA, allow the community to comment on it, and respond to comments as part of the programmatic requirements that must be included in the cooperative agreement, addressed below. See FY14 Guidelines for Revolving Loan Fund Grants, Page 37.
18-FD-c.7 – Obtain Letter from the State or Tribal Environmental Authority
Developers must obtain a current letter from the appropriate state or tribal authority acknowledging that the developer plans to apply for an ARC grant. See FY14 Guidelines for Brownfields Cleanup Grants, Page 14; FY14 Guidelines for Brownfields Assessment Grants, Page 16; FY14 Guidelines for Revolving Loan Fund Grants, Page 37.
18-FD-c.8 – Obtain DUNS number and register with the SAM
Unless exempt under OMB regulations at 2 CFR 25, all developers must obtain a Data Universal Numbering System (DUNS) number and register with the System for Award Management (SAM). This process may take a month or more, so it should be completed well in advance of the submission deadline.
18-FD-c.9 – ARC Grant Proposal
A proposal checklist specific to each type of grant can be found in the applicable FY14 guidelines. All ARC grant proposal must contain a transmittal letter (2 page limit),a narrative proposal (15 page limit), and the required attachments.
18-FD-c.10 to 18-FD-c.12 – Review Threshold Criteria
After the proposal package is submitted, the EPA Regional Office reviews it to determine compliance with the applicable threshold criteria. Documentation of all applicable threshold criteria should be included as an attachment to the proposal package. Threshold criteria can be found in section III.C of the applicable FY14 guidelines for cleanup and assessment grants and in section III.B for RLF grants. The threshold criteria include site and applicant eligibility and are pass/fail. Proposals that do not pass all of the threshold criteria will not receive further consideration. Applicants that are deemed ineligible as a result of the threshold criteria review will be notified within 15 calendar days of the ineligibility determination. See FY14 Guidelines for Brownfields Cleanup Grants; FY14 Guidelines for Brownfields Assessment Grants; FY14 Guidelines for Revolving Loan Fund Grants.
18-FD-c.13 to 18-FD-c.17 – Evaluate Proposal Based on Ranking Criteria; Notify Developer of Final Decision
Proposals that pass the threshold criteria review are subsequently evaluated by national evaluation panels composed of EPA staff and, in some cases, other federal agency representatives. The proposals are evaluated based on the developer’s responses to the criteria found in the section V.B of the applicable FY14 guidelines. Responses to the ranking criteria should be included in the narrative proposal.
Each response is assigned a point value. EPA’s Office of Brownfields and Land Revitalization (OBLR) creates one ranked list for cleanup grants and two ranked lists for RLF and assessment grants (one list for first time applicants and another list for existing and former applicants). The list(s) are then referred to the Selection Official. After receiving the lists, the Selection Official selects the grant recipients based on a review of the ranking scores, availability of funds and the consideration of “other factors”. The consideration of “other factors” is generally used to break ties. A checklist of the “other factors” can be found in Appendix 3 of the FY14 guidelines. The developer should address the factors in attachment to the proposal package.
Once the grant recipients have been selected, the EPA notifies both successful and unsuccessful applicants in writing within 15 calendar days. The notification is not an authorization to begin work The developer must still submit an application for a cooperative agreement before the funds may be disbursed.
See FY14 Guidelines for Brownfields Cleanup Grants; FY14 Guidelines for Brownfields Assessment Grants; FY14 Guidelines for Revolving Loan Fund Grants; Frequently Asked Questions (FAQs) for Fiscal Year (FY) 14 Brownfields Assessment, Revolving Loan Fund and Cleanup Grants.
18-FD-c.18 to 18-FD-c.19 – Cooperative Agreement
Grant recipients must enter into a cooperative agreement with the EPA in order to obtain funding through an ARC grant. A cooperative agreement application package must be submitted to the EPA after notice of the award is received. The package must include the application (Standard Form 424), a proposed work plan, a proposed budget, and other required forms.
The EPA reviews the cooperative agreement application package and approves it, if appropriate. Approved cooperative agreements include terms and conditions that are binding on the recipient. The cooperative agreement will include the programmatic requirements listed in the applicable FY14 guidelines. In addition, the cooperative agreement requires recipients to submit progress reports. Failure to comply with the cooperative agreement may result in the cancellation of funds.
See FY14 Guidelines for Brownfields Cleanup Grants, Page 43. For a list and description of general EPA regulations applicable to the award of assistance agreements, see EPA's Applicable Brownfields Regulations Website.
18-FD-c.20 – Award Notice
The cooperative agreement must be approved by the EPA before the grant can be officially awarded. Once the cooperative agreement has been approved, the EPA Grants Officer signs the awards notice, which is the authorizing document, and mails it to the developer. The developer may then proceed with the project. See FY14 Guidelines for Brownfields Cleanup Grants, Pages 42-43.
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- EPA’s Brownfields Application Website
- Applicable Brownfields Regulations Website
- Technical Assistance to Brownfields Website
- EPA Brownfields and Land Revitalization Website
- FY14 Guidelines for Brownfields Revolving Loan Fund Grants
- FY14 Guidelines for Brownfields Cleanup Grants
- FY14 Guidelines for Brownfields Assessment Grants
- Frequently Asked Questions (FAQs) for Fiscal Year (FY) 14 Brownfields Assessment, Revolving Loan Fund and Cleanup Grants
- Interim Guidance Regarding Limitations on CERCLA Liability
- OMB Circular A-133