HomeMy WebLinkAboutExhibit4Brownfields Assessment Grant Terms and Conditions
-I. GENERAL FEDERAL REQUIREMENTS
NOTE: For the purposes of these Terms and Conditions the term "assessment" includes,
eligible activities under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) 104(k)(2)(A)(i) such as activities involving the inventory,
characterization, assessment, and planning relating to Brownfield sites as described in the
EPA approved workplan.
A. Federal Policy and Guidance
1. a. Cooperative Agreement Recipients: In implementing this agreement, the
cooperative agreement Recipient (Recipient) shall insure that work done with
cooperative agreement funds complies with the requirements of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) 104(k). The Recipient shall also ensure that assessment activities
supported with cooperative agreement funding comply with all applicable Federal
and State laws and regulations.
b. CERCLA 104(g) requires that Recipients comply with the prevailing wage rate
requirements under the Davis -Bacon Act of 1931 for construction, repair or
alteration contracts "funded in whole or in part" with funds provided under this
agreement. If the Recipient uses funds awarded under this agreement to contract
for construction, repair or alteration work, it must obtain recent and applicable
wage rates from the U.S. Department of Labor and incorporate them into the
construction, alteration or repair contract.
c. The Recipient agrees to comply with Executive Order 13202 (Feb. 22, 2001, 66
Fed. Reg. 11225) of February 17, 2001, entitled "Preservation of Open
Competition and Government Neutrality Towards Government Contractors' Labor
Relations on Federal and Federally Funded Construction Projects," as amended by
Executive Order 13208 (April 11, 2001, 66 Fed. Reg. 18717) of April 6, 2001,
entitled "Amendment to Executive. Order 13202, Preservation of Open
Competition and Government Neutrality Towards Government Contractors' Labor
Relations on Federal and Federally Funded Construction Projects.
d. The Recipient must comply with Federal cross -cutting requirements. These
requirements include but are not limited to, MBE/WBE requirements found at 40
CFR 31.36(e) or 40 CFR 30.44(b); OSHA Worker Health & Safety Standard 29
CFR 1910.120; the Uniform Relocation Act; Historic Preservation Act;
Endangered Species Act; and Permits required by Section 404 of the Clean Water
Act; Executive Order 11246, Equal Employment Opportunity, and implementing
regulations at 41 CFR 68-4; Contract Work Hours and Safety Standards Act, as
amended (40 USC 327-333) the Anti Kickback Act (40 USC 276c) and Section
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504 of the Rehabilitation Act of 1973 as implemented by Executive Orders 11914
and 11250.
B. Eligible Brownfields Site Determinations
1. a.
b.
The Recipient must provide information about site -specific work and receive
written EPA approval prior to incurring any costs under this cooperative
agreement for sites that have not already been pre -approved in the Recipient's
work plan by the EPA. The information that must be provided includes whether
or not the site meets the definition of a brownfield as defined in § 101(39) of
CERCLA, the identity of the owner, and the date of acquisition. Failure to
comply with this requirement may result in denial of reimbursement of expenses
for such activities.
If the site is excluded from the general definition of a brownfield, but is
eligible for a property -specific funding determination, then the Recipient
must provide information sufficient for EPA to make a property -specific
funding determination. The Recipient must provide sufficient information
on how 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. The Recipient must not incur costs for assessing sites requiring
a property -specific funding determination by EPA until the EPA Project
Officer has advised the Recipient of the Agency's determination.
2. a. For any petroleum contaminated brownfield site that is not included in the
Recipient's EPA approved work plan, the Recipient shall provide sufficient
documentation to the EPA prior to incurring costs under this cooperative
agreement which includes:
(1) that a State has determined that the petroleum -only site is of relatively
low risk, as compared to other petroleum -only sites in the State,
(2) that the State determines there is "no viable responsible party" for the
site;
(3) that the State determines that the person assessing or investigating the
site is a person who is not potentially liable for cleaning up'the site; and
(4) that the site is not subject to any order issued under section 9003(h) of the
Solid Waste Disposal Act.
This documentation must be prepared by the Recipient or the State following
contact and discussion with the appropriate petroleum program official.
b. Documentation must include the identity of the State program official
contacted, the State official's telephone number, the date of the contact,
and a summary of the discussion relating to the state's determination that
the site is of relatively low risk, that there is no viable responsible party
and that the person assessing or investigating the site is a person who is
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not potentially liable for cleaning up the site. Other documentation
provided by a State to the Recipient relevant to any of the determinations
by the State must also be provided to the EPA Project Officer.
c. If the State chooses not to make the determinations described in 2.a.
above, the Recipient must contact the EPA Project Officer and provide the
information necessary for EPA to make the requisite determinations.
3. Historic Properties
The Recipient agrees to consult with the appropriate State Office in the identification and
evaluation of any pre-1946 structures which maybe impacted by scheduled project
activities, or properties located adjacent to the activities areas. The Recipient agrees to
comply with efforts to identify, evaluate and appropriately design project activities to
avoid or minimize adverse project impacts to any historic properties listed, or which
satisfy the criteria for eligibility for listing (36 CFR 60.4), in the National Register of
Historic Places.
II. GENERAL COOPERATIVE AGREEMENT
ADMINISTRATIVE REQUIREMENTS
A. Term of the Agreement
1. The term of this agreement is two years from the date of award, unless otherwise
extended by EPA at the Recipient's request.
2. If after 1Y2 years from the date of award, EPA determines that the Recipient has not made
sufficient progress in implementing its cooperative agreement, the Agency may terminate
this agreement.
3. Assessment funding for any eligible brownfield site may not exceed $200,000 unless a
waiver has been received and then it is not to exceed $350,000.
B. Substantial Involvement
1. This is a cooperative agreement that will entail substantial involvement by EPA.
Substantial EPA involvement may include:
a. Consultation and collaboration on technical and policy matters at the Recipient's
request. To the extent Agency resources permit, EPA will provide data, advice
and information that will help the Recipient carry out the agreement effectively.
b.
EPA review of the substantive terms of professional services contracts the
Recipient enters into to carry out specific elements of the workplan. ( EPA
approval is not required for contracts for supplies, equipment, information
technology and other administrative support services.)
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c. EPA review of the qualifications of consultants the Recipient hires to carryout
specific elements of the workplan.
d. Monitoring by EPA of the Recipient's performance under the agreement.
e. Review of project and community involvement activities and phases.
f. Substantial EPA involvement also includes brownfields property -specific
funding determinations described in I.B.1. under Eligible Brownfields Site
Determinations above. If the Recipient awards a subgrant for site
assessment, the Recipient may also request technical assistance from EPA
on what sites qualify as a brownfield site and determining whether the
statutory prohibition found in section 104(k)(4)(B)(i)(IV) of CERCLA
applies to potential subgrant Recipients. Generally, this prohibition
prohibits a subgrant Recipient from using grant funds to assess a site if the
subgrant Recipient is potentially liable under §107 of CERCLA for that
site.
g.
Substantial EPA involvement may include reviewing financial and
environmental status reports; and monitoring all reporting, record -keeping,
and other program requirements.
h. EPA may waive or modify its substantial involvement relating to any of
the provisions in term and condition lI.B.1 on any particular matter or
classes of matters through written advice to the Recipient.
2. Effect of EPA's substantial involvement includes:
a. EPA's review of any project phase, document, or cost incurred under this
cooperative agreement (including assessments, see B3 below), will not
have any affect upon CERCLA §128 Eligible Response Site
determinations or for rights, authorities, and actions under CERCLA or
any Federal statute.
b. The Recipient remains responsible for ensuring that all assessments are
protective of human health and the environment and comply with all
applicable Federal and State laws.
c. The Recipient and its sub -Recipients remain responsible for incurring
costs that are allowable under the applicable OMB Circulars.
3. Approval of Workplan
Implementation of the award of this cooperative agreement by the Recipient is contingent
upon EPA approval of the Final Cooperative Agreement Workplan. Unless approved
prior to the award, the Recipient must receive written EPA approval of a Final Workplan
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within 60 calender days following the date of the award. Recipient must receive written
EPA approval of the Workplan prior to expenditure of federal funds under this
cooperative agreement. No financial reimbursement may be made without an EPA
approved workplan.
C. Cooperative Agreement Recipient Roles and Responsibilities
1. The Recipient must acquire the services of a qualified environmental professional(s) or a
qualified federal/state/county agency to coordinate, direct, and oversee the brownfields
assessment activities at, a particular site, if they do not have such a professional on staff.
2. The Recipient is responsible for ensuring that contractors and subgrant Recipients comply
with the terms of their agreements with the Recipient, and that agreements between the
Recipient and subgrant Recipients and contractors are consistent with the terms and
conditions of this agreement.
3. Subgrants are defined at 40 CFR 31.3. The Recipient may not subgrant to for -profit
organizations. The Recipient must obtain commercial services and products necessary to
carry out this agreement under competitive procurement procedures as described in 40
CFR 31.36. In addition, EPA policy encourages awarding subgrants competitively and
the Recipient must consider awarding subgrants through competition.
D. Quarterly Progress Reports
1.
The Recipient must submit progress reports on a quarterly basis (30 days after the end of
each Federal fiscal quarter, i.e., October 30, January 30, April 30, July 30) to the EPA
Project Officer. The progress reports must document incremental progress at achieving
the project goals and milestones. Quarterly progress reports must include:
a. Documentation of progress at meeting the performance objectives, project
narrative and project time line.
b. An update on project milestones.
c. A budget recap summary page with the following headings: Current Approved
Budget; Costs Incurred this Quarter; Costs Incurred to Date; and Total Remaining
Funds.
d. If applicable, quarterly reports must specify costs incurred at petroleum
contaminated brownfields sites separately.
e. Recipient quarterly reports must clearly identify which activities performed during
the reporting period were undertaken with EPA funds, and must relate EPA -
funded activities to the objectives and milestones agreed upon in the work plan
including a list of sites where assessment activities were completed. To the extent
consistent with the EPA approved workplan for this agreement, activities
undertaken with EPA funds to be included in quarterly performance and financial
reporting may include:
1. Acres per property
2. Assessments completed
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3. No cleanup required
4. Types of contaminants assessed
5. Acres of greenspace to be created/preserved
6. Number of properties with one or more engineering/institutional controls
7. Redevelopment. underway
8. Funds leveraged
9. Jobs leveraged
10. Health monitoring studies, insurance, institutional controls funded
2. The Recipient must maintain records that will enable it to report to EPA on the amount of
funds expended on specific sites under this grant.
3. The Recipient must maintain records that will enable it to report to EPA on the amount of
finds expended by the Recipient at petroleum sites identified in the EPA approved
workplan.
4. The Recipient must complete Property Specific Profile Forms (Information Collection
Request form, OMB Number 2050-0192) provided by EPA.
5. One copy of the quarterly report should be submitted to each of the following individuals:
a. EPA Designated Project Officer
U.S. Environmental Protection Agency
Waste Management Division/Brownfields Program
61 Forsyth Street, S. W.
Atlanta, GA 30303-8960
b. ' Brownfields Data Manager
US EPA, Office of Brownfields Cleanup and Redevelopment (MS 5105 T)
1200 Pennsylvania Avenue, NW
Washington, DC 20460
E. Financial Status Report
Recipient shall submit two copies of the Financial Status Report (Standard Form 269)
annually to the EPA Grants Management Office, 61 Forsyth Street, S. W., Atlanta, GA
30303-8960, within 90 days after the end of each project year. A copy must also be
submitted to the Project Officer listed above in II.D.5.
III. FINANCIAL ADMINISTRATION REQUIREMENTS
A. Eligible Uses of the Funds for the Cooperative Agreement Recipient
1.
To the extent allowable under the workplan, cooperative agreement funds may be used
for eligible programmatic expenses to inventory, characterize, assess, and conduct
planning and outreach. Eligible programmatic expenses include activities described in
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Section IV of these Terms and Conditions. In addition, such eligible programmatic
expenses may include:
a. ---Determiningwhether-assessment activities at aparticular-site-are-authorized--by
b.
CERCLA 104(k);
Ensuring that an assessment complies with applicable requirements under Federal
and State laws, as required by CERCLA 104(k);
c. Purchasing environmental insurance if the purchase of such insurance is necessary
to carry out assessment activities;
d.
Any other eligible programmatic costs including costs incurred by the Recipient in
reporting to EPA; procuring and managing contracts; awarding and managing
subgrants; and carrying out outreach pertaining to the assessment activities.
2. Local Governments Only - Program Development and Implementation. No more
than 10% of the funds awarded by this agreement may be used for brownfield program
development and implementation (including monitoring of health and institutional
controls) as described in the EPA approved grant workplan. The Recipient must
maintain records on funds that will be used to carry out these tasks in its EPA approved
grant workplan to ensure that no more than 10% of its funds are used for brownfield
program development and implementation (including monitoring of health and
institutional controls).
B. Ineligible Uses of the Funds for the Cooperative Agreement Recipient
1. Cooperative agreement funds shall not be used by the Recipient for any of the following
activities:
a. Cleanup activities;
b.
Development activities that are not brownfields assessment activities (e.g.,
construction of a new facility);
c. Job training unrelated to performing a specific assessment at a site covered by the
grant;
d. To pay for a penalty or fine;
e. To pay a federal cost share requirement (for example, a cost -share required by
another Federal grant) unless there is specific statutory authority;
f.
To pay for a response cost at a brownfields site for which the Recipient of the
grant or subgrant is potentially liable under CERCLA § 107;
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g•
To pay a cost of compliance with any federal law, excluding the cost of
compliance with laws applicable to the assessment; and
• Unallowable-costs-(e.g-.7-lobbying-and fiend raising) under applicable -OMB
Circulars A-21 (universities), A-87 (state, tribal and local governments), A-122
(non-profit organizations), and Subpart 31.2 of the Federal Acquisition Regulation
(commercial organizations), as applicable.
i. Assessment, identification, characterization or remediation planning from
products which are part of a structure (i.e., lead paint and asbestos) and result in
exposure within residential buildings, or businesses, or community structures.
Activities at any Federally owned or operated facility.
2. Under CERCLA 104(k)(4)(B), administrative costs are prohibited costs under this
agreement. Prohibited administrative costs include all indirect costs under applicable
OMB Circulars.
b.
Ineligible administrative costs include costs incurred in the form of
salaries, benefits, contractual costs, supplies, and data processing charges,
incurred to comply with most provisions of the Uniform Administrative
Requirements for Grants contained in 40 CFR Part 31. Direct costs for
grant administration, with the exception of costs specifically identified as
eligible programmatic costs, are ineligible even if the Recipient is required
to carry out the activity under the grant agreement.
Ineligible grant administration costs include:
(1) Preparation of applications for Brownfields grants;
(2) Record retention required under 40 CFR 31.42;
(3) Record -keeping associated with supplies and equipment purchases required
under 40 CFR 31.32 and 31.33;
(4) Preparing revisions and changes in the budgets, scopes of work, program
plans and other activities required under 40 CFR 31.30;
(5) Maintaining and operating financial management systems required under 40
CFR 31;
(6) Preparing payment requests and handling payments under 40 CFR 31.21;
(7) Non-federal audits required under 40 CFR 31.26 and OMB Circular A-133;
and
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(8) Close out under 40 CFR 31.50.
3. EPA Brownfields Cooperative Agreement funds may not be used for payment of
activities -at -the following -properties; including parcels --of properties, unless, -to the extent - - -
allowable under the law, EPA makes a property specific determination, prior to
expenditure of grant funds:
a.
Properties where there are CERCLA removal actions planned or ongoing;
b. Properties subject to corrective action orders under RCRA (Sections 3004(u) or
3008(h)) and to which a corrective action permit or order has been issued or
modified to require the implementation of corrective measures;
c. Properties that are land disposal units that have filed a closure notification under
RCRA Subtitle C and to which closure requirements have been specified in a
closure plan or permit;
d. Properties where there has been a release of polychlorinated biphenyls (PCBs) are
subject to remediation under TSCA;
e.
f.
h.
Portions of properties for which funding for remediation has been obtained from
the Leaking Underground Storage Tank (LUST) Trust Fund;
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 decree issued to or entered by parties under
CERCLA;
Facilities that are subject to the jurisdiction, custody or control of the United
States government except for land held in trust by the United States government
for an Indian tribe; or
i. A site excluded from the definition of a brownfields site for which EPA
has not made a property -specific funding determination.
C. Interest -Bearing Accounts .and Program Income
1. Any income generated with funds from this Cooperative Agreement from
transactions between the Recipient and owners of privately owned properties will
be subject to the program income provisions of 40 CFR 31.25. In accordance
with 40 CFR 31.25(g)(2) the Recipient is authorized to add this program income
to the funds committed to the Cooperative Agreement by EPA and to use the
income for the same purposes and under the same conditions as those contained in
the Cooperative Agreement. Program income for the assessment Recipient shall
be defined as the gross income received by the Recipient, directly generated by the
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cooperative agreement award or earned during the period of the award. Program
income includes, but is not limited to, fees charged for conducting assessment,
site characterizations, clean up planning or other activities when the costs for the
activity -is --charged to this agreement. — — —
2. The Recipient must deposit advances of grant funds and program income (e.g.,
fees) in an interest bearing account.
a. Interest earned on advances, Recipients are subject to the
provisions of 40 Cl-a §31.21(i) to remitting interest on advances to
EPA on a quarterly basis.
b. Interest earned on program income is considered additional
program income.
IV. ASSESSMENT ENVIRONMENTAL REQUIREMENTS
A. Quality Assurance/Quality Control (QAIQC) Requirements
1. When environmental samples are collected as part of the brownfields assessment, the
Recipient shall comply with 40 CFR Part 31.45 requirements to develop and implement
quality assurance practices sufficient to produce data adequate to meet project objectives
and to minimize data loss. State law may impose additional QA requirements.
2. QMP: Recipient must have an EPA approved Quality Assurance. Management Plan
(QMP) in place before beginning any field work, funded wholly or in part by this
agreement, that includes sampling and analysis of environmental media. One QMP can
be approved for all such work under this agreement. The Recipient should allow EPA
adequate time (generally 45 days) for review and approval. The QMP should be
consistent with the "EPA Requirements for Quality Management Plans; (QA/R-2)."
3. QAPP: Recipient, or its service agent/contractor(s), must have an EPA approved
Quality Assurance Project Plan (QAPP) in place before beginning each property,
specific field work, funded wholly or in part by this agreement, that includes sampling
and analysis of environmental media. The Recipient should allow EPA adequate time
(generally 45 days) for review and approval. The QAPP should be consistent with the
"EPA, Region 4, Standard Operating Procedures and Quality Assurance Manual" and
"Quality Assurance Guidance for Conducting Brownfields Site Assessments EPA 540-R-
038(PB98-963307) September 1998" or "EPA Guidance on Quality Assurance Project
Plans (QA/G-5) (EPA 1998)" and later revisions.
B. Community Relations and Public Involvement in Assessment Activities
1. All assessment activities require a site -specific community relations plan that includes
providing reasonable notice, opportunity for involvement, response to comments, and
administrative records that are available to the public. EPA must approve any changes to
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the activities described in its workplan that the Recipient makes in response to public
comments.
C. Completion --ofAssessment Activities___
1.
The Recipient shall properly document the completion of all activities described in the
EPA approved workplan. This must be done through a final report or letter from a
qualified environmental professional, or other documentation provided by a State or Tribe
that shows assessments are complete. This documentation must be included as part of the
administrative record.
D. All Appropriate Inquiry
1. As required by CERCLA §104(k)(2)(B)(ii) and CERCLA § 101(35)(B) , the Recipient
shall ensure that a `Phase r' site characterization and assessment carried out under this
agreement will be performed in accordance with American Society of Testing and
Materials (ASTM) standard E1527-00, "Standard Practices for Environmental Site
Assessment: Phase I Environmental Site Assessment Process," until EPA promulgates
final federal standards governing the conduct of "all appropriate inquiry." After EPA
promulgates final regulations governing the conduct of all appropriate inquiry, Phase I
site characterizations and assessments will have to be conducted in compliance with the
final regulations. This does not preclude the use of grant funds for additional site
characterization and assessment activities that may be necessary to characterize the
environmental impacts at the site or to comply with. applicable State standards.
E. Publication of Results
EPA encourages the publication of the results of its assistance programs. The Recipient
may publish the material for its own use if it includes the following statement:
"Although the information in this document has been funded wholly or in part by
the United States Environmental Protection Agency under assistance agreement
(number) to, (Recipient), it has not been subjected to the Agency's publications
review process and, therefore, may not necessarily reflect the views of the Agency
and no official endorsement should be inferred."
If the Recipient chooses to publish the results of its assistance program as an "EPA
Product", it must comply with EPA's publication review process. Recipient should
contact the Grants Project Officer listed above for specific details.
V. CONFLICT OF INTEREST: APPEARANCE OF LACK OF IMPARTIALITY
A. Conflict of Interest
1. The Recipient shall establish and enforce conflict of interest provisions that prevent the
award of subgrants that create real or apparent personal conflicts of interest, or the
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Recipient's appearance of lack of impartiality. Such situations include, but are not
limited to, situations in which an employee, official, consultant, contractor, or other
individual associated with the Recipient (affected party) approves or administers a grant
or subgrant to a subgrant Recipient --in which-theaffected party has afinanQial or other
interest. Such a conflict of interest or appearance of lack of impartiality may arise when:
a. The affected party,
b. Any member of his immediate family,
c. His or her partner, or
d. An organization which employs, or is about to employ, any of the above,
has a financial or other interest in the subgrant Recipient.
Affected employees will neither solicit nor accept gratuities, favors, or anything of
monetary value from subgrant Recipients. Recipients may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic
value. To the extent permitted by State or local law or regulations, such standards of
conduct will provide for penalties, sanctions, or other disciplinary actions for violations
of such standards by affected parties.
VI. PAYMENT AND CLOSEOUT
A. Payment Schedule
1. Reimbursements
The Recipient must request reimbursements, not advances, using Standard Form 270
(SF-270), "Request for Advancement or Reimbursement" as costs are incurred on the
assistance agreement, and use the Automated Standard Application for Payment System
(ASAP). The SF-270 should be submitted quarterly, but no more frequently than
monthly. Although not required, it is preferable that requests for reimbursements be
submitted with the quarterly progress report.
The request should be submitted to:
EPA Designated Project Officer
U.S. Environmental Protection Agency
Waste Management DivisionBrownfields Program
61 Forsyth Street, S. W.
Atlanta, GA 30303-8960
Along with the SF-270, the Recipient shall provide sufficient documentation to provide
adequate explanation of the incurred costs. Such documentation may include invoices,
- receipts, narrative or other types of itemization. NOTE: The Project Officer must
approve Recipient's expenditures requested for reimbursement through ASAP prior to
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