E9-9964. American Recovery and Reinvestment Act of 2009 (Recovery Act) Addendum to Supplemental Funding for Brownfields Revolving Loan Fund (RLF) Grantees

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA published a notice on April 10, 2009 regarding plans to make available approximately $40 million in Recovery Act funding to supplement Revolving Loan Fund capitalization grants previously awarded competitively under section 104(k)(3) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The purpose of this notice is to notify eligible RLF grantees that Supplemental Funding for Brownfields RLF grantees provided under the April 10, 2009 notice will be subject to the Buy American provisions for activities defined as infrastructure by the Agency.

DATES:

This action is effective April 30, 2009.

FOR FURTHER INFORMATION CONTACT:

Debi Morey, U.S. EPA, Office of Solid Waste and Emergency Response, Office of Brownfields and Land Revitalization, [phone] or the appropriate Brownfields Regional Contact.

SUPPLEMENTARY INFORMATION:

Background

On February 17, 2009, President Barack Obama signed the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-05) (Recovery Act). EPA received $100 million in Recovery Act appropriations for the CERCLA 104(k) Brownfields Program of which 25% must be used at brownfields sites contaminated with petroleum. The Agency has allocated approximately $40 million of Recovery Act funds for supplemental funding of current RLF grantees as authorized by CERCLA 104(k)(4).

Title XVI, section 1605 of the Recovery Act, (“Buy American”) prohibits the use of Recovery Act funds for projects involving “the construction, alteration, maintenance or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States” unless certain specified exceptions apply. OMB has issued regulations at Subpart B of 2 CFR Part 276 implementing the Recovery Act Buy American provision. It is possible that a limited amount of RLF supplemental funding will be used directly by non-federal governmental entity borrowers or subgrantees for projects that have a principal purpose of installing concrete or asphalt (or similar material) caps to remediate contamination on brownfields on a public building or public work, as defined at 2 CFR 176.140(a), or constructing alternative drinking water systems as part of the remedy at a brownfields site. These caps constitute an engineering control to enclose and protect contamination from migration and the risk of exposure. Construction of alternate drinking water systems by a non-federal governmental entity with RLF supplemental funding would be a public work under 2 CFR 176.140(a). EPA considers loans and subgrants that have a principal purpose of carrying out of these types of activities to be infrastructure investments for the purposes of the certification and reporting requirements of Title XV, sections 1511 and 1512 of the Recovery Act and implementing regulations at 2 CFR 176.50. If an RLF grantee is requesting supplemental funding for a project which requires a Buy American Act determination (i.e., a cap that will be directly incorporated into a public building or public work) and the grantee intends to use other than American steel, iron or manufactured goods, the grantee must request an advance determination or provide the necessary information in their request for RLF supplemental funding.

Please note that in accordance with 2 CFR 176.140(a), remediation activities conducted with RLF supplemental funds by private sector developers, non-profit organizations (except multi-State, regional or interstate entities which have governmental functions) or other non-governmental borrowers or subgrantees, and tribes are not public buildings or public works for the purposes of the Buy American provision of the Recovery Act as implemented at Subpart B of 2 CFR Part 176. EPA does not consider remediation activities conducted with RLF supplemental funds by private sector developers, non-profit organizations (except multi-State, regional or interstate entities which have governmental functions) or other non-governmental borrowers or subgrantees to be infrastructure investments for the purposes of the certification and reporting requirements.

Required Use of American Iron, Steel, and Manufactured Goods—Section 1605 of the American Recovery and Reinvestment Act of 2009

(a) Definitions. “Manufactured good,” “public building and public work,” and “steel,” as used in this notice, are defined in the 2 CFR 176.140.

(b) Requests for determinations of inapplicability. A prospective applicant requesting a determination regarding the inapplicability of section 1605 of the Recovery Act should submit the request to the award official in time to allow a determination before submission of applications or proposals. The prospective applicant shall include the information and applicable supporting data required by paragraphs (c) and (d) of the award term and condition at 2 CFR 176.140 in the request. If an applicant has not requested a determination regarding the inapplicability of 1605 of the Recovery Act before submitting its application or proposal, or has not received a response to a previous request, the applicant shall include the information and supporting data in the application or proposal.

(c) Evaluation of project proposals.

If the Federal government determines that an exception based on unreasonable cost of domestic iron, steel, and/or manufactured goods applies, the Federal Government will evaluate a project requesting exception to the requirements of section 1605 of the Recovery Act by adding to the estimated total cost of the project 25 percent of the project cost, if foreign iron, steel, or manufactured goods are used in the project based on unreasonable cost of comparable manufactured domestic iron, steel, and/or manufactured goods.

(d) Alternate project proposals.

(1) When a project proposal includes foreign iron, steel, and/or manufactured goods not listed by the Federal Government at paragraph (b)(2) of the award term and condition at 2 CFR 176.140, the applicant also may submit an alternate proposal based on use of equivalent domestic iron, steel, and/or manufactured goods.

(2) If an alternate proposal is submitted, the applicant shall submit a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of the award term and condition at 2 CFR 176.140 for the proposal that is based on the use of any foreign iron, steel, and/or manufactured goods for which the Federal Government has not yet determined an exception applies.

(3) If the Federal government determines that a particular exception requested in accordance with paragraph (b) of the award term and condition at 2 CFR 176.140 does not apply, the Federal Government will evaluate only those proposals based on use of the equivalent domestic iron, steel, and/or manufactured goods, and the applicant shall be required to furnish such domestic items.

Notice of Required Use of American Iron, Steel, and Manufactured Goods (Covered Under International Agreements)—Section 1605 of the American Recovery and Reinvestment Act of 2009

(a) Definitions. “Designated country iron, steel, and/or manufactured goods,” “foreign iron, steel, and/or manufactured good,” “manufactured good,” “public building and public work,” and “steel,” as used in this provision, are defined in 2 CFR 176.160(a).

(b) Requests for determinations of inapplicability. A prospective applicant requesting a determination regarding the inapplicability of section 1605 of the Recovery Act should submit the request to the award official in time to allow a determination before submission of applications or proposals. The prospective applicant shall include the information and applicable supporting data required by paragraphs (c) and (d) of the award term and condition at 2 CFR 176.160 in the request. If an applicant has not requested a determination regarding the inapplicability of 1605 of the Recovery Act before submitting its application or proposal, or has not received a response to a previous request, the applicant shall include the information and supporting data in the application or proposal.

(c) Evaluation of project proposals.

If the Federal government determines that an exception based on unreasonable cost of domestic iron, steel, and/or manufactured goods applies, the Federal Government will evaluate a project requesting exception to the requirements of section 1605 of the Recovery Act by adding to the estimated total cost of the project 25 percent of the project cost if foreign iron, steel, or manufactured goods are used based on unreasonable cost of comparable domestic iron, steel, or manufactured goods.

(d) Alternate project proposals.

(1) When a project proposal includes foreign iron, steel, and/or manufactured goods, other than designated country iron, steel, and/or manufactured goods, that are not listed by the Federal Government in this Buy American notice in the request for applications or proposals, the applicant may submit an alternate proposal based on use of equivalent domestic or designated country iron, steel, and/or manufactured goods.

(2) If an alternate proposal is submitted, the applicant shall submit a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of the award term and condition at 2 CFR 176.160 for the proposal that is based on the use of any foreign iron, steel, and/or manufactured goods for which the Federal Government has not yet determined an exception applies.

(3) If the Federal government determines that a particular exception requested in accordance with paragraph (b) of the award term and condition at 2 CFR 176.160 does not apply, the Federal Government will evaluate only those proposals based on use of the equivalent domestic or designated country iron, steel, and/or manufactured goods, and the applicant shall be required to furnish such domestic or designated country items.

Statutory and Executive Order Reviews: Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to OMB review. Because this grant action is not subject to notice and comment requirements under the Administrative Procedures Act or any other statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments. Although this action does not generally create new binding legal requirements, where it does, such requirements do not substantially and directly affect Tribes under Executive Order 13175 (63 FR 67249, November 9, 2000). Although this grant action does not have significant Federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted with states in the development of these grant guidelines. This action is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. Since this grant action, when finalized, will contain legally binding requirements, it is subject to the Congressional Review Act, and EPA will submit its final action in its report to Congress under the Act.

Dated: April 24, 2009.

Myra Blakely,

Acting Director, Office of Brownfields and Land Revitalization, Office of Solid Waste and Emergency Response.