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Eligibility determinations

Site Eligibility and Property Ownership Eligibility questions for hazardous substances sites for revolving loan fund (RLF) grantees

Site Eligibility

  1. Basic Site Information. Identify
    1. the name of the site;
    2. the address of the site; and
    3. the current owner of the site.

  2. Status and History of Contamination at the Site Identify
    1. whether this site is contaminated by petroleum or hazardous substances;
    2. the operational history and current uses(s) of the site;
    3. environmental concerns, if known, at the site; and
    4. how the site became contaminated and, to the extent possible, describe the nature and extent of the contamination.

  3. Sites Ineligible for Funding. Affirm that the site is
    1. not listed or proposed for listing on the National Priorities List;
    2. 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
    3. not subject to the jurisdiction, custody, or control of the United States government.

  4. Sites Requiring a Property-Specific Determination. Certain types of sites require a property-specific determination in order to be eligible for funding. Please refer to Appendix 3, Section 3.4, to determine whether your site requires a property-specific determination. If your site requires a property-specific determination, then you must provide the information requested in Appendix 4, Section 4.1.

  5. Definition of a Brownfields Site. Please explain the expansion, redevelopment or reuse that has been complicated by the presence of a hazardous substance, pollutant or contaminant.

  6. National Historic Preservation Act issues – Provide information on whether the Borrower or Grantee has consulted with the State Historic Preservation Office and, if so, what discussions have occurred to date.

Property Ownership Eligibility (CERCLA Section 107 Prohibition/Petroleum Site Eligibility)

EPA grant funding may not be used to pay for response costs at a brownfield site for which the recipient of the grant or loan is potentially liable under CERCLA § 107. The following questions are intended to help EPA ensure that you are not liable under CERCLA for response costs at the site designated in your proposal, or determine, if necessary, that your site is eligible for funding as a petroleum site. Please answer the following questions fully and in the order that they appear (note that based on your responses, EPA may need to obtain additional information to make this determination).

  1. Affirm that you are not potentially liable for contamination at the site under CERCLA § 107 (e.g., as a current owner or operator of a facility, an owner or operator of a facility at the time of disposal of a hazardous substance, a party that arranged for the treatment or disposal of hazardous substances, or a party that accepted hazardous substances for transport to disposal or treatment facilities at the site) and explain why.

  2. Enforcement Actions. Identify known ongoing or anticipated environmental enforcement actions related to the brownfield site for which funding is sought. Describe any inquiries or orders from federal, state, or local government entities that the borrower is aware of regarding the responsibility of any party (including the borrower) for the contamination or hazardous waste at the site.

  3. Information on Liability and Defenses/Protections Where the RLF Grantee Does NOT
    Own the Site. If you, the CAR, do not own the site, 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/borrower and the owner's/borrower's role in the work to be performed.

    The following questions should be answered by the borrower and/or the CAR when the CAR owns the site:

  4. Information on Liability and Defenses/Protections Where Borrower Owns the Site or Will Own the Site During the Performance of the Loan. Please respond to the following:
    1. Information on the Property Acquisition. Describe
      1. How you acquired or will acquire ownership (e.g., by negotiated purchase from a private individual, by purchase or transfer from another governmental unit, by foreclosure of real property taxes, by eminent domain, or other (describe));

      2. The date you acquired or will acquire the property;

      3. The name and identity of the party from whom you acquired ownership (i.e., the transferor);

      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. Timing of Hazardous Substance 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

    3. 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 in your description the types of site assessments performed (e.g., ASTM E1527-05 Phase I or equivalent), the dates of each assessment (see note in box), 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); and who performed the assessments and identify his/her qualifications to perform such work;

      NOTE - Please note that if the assessment was performed more than 180 days before the purchase date, you must demonstrate that the assessment was updated in accordance with the ASTM standard or the AAI rule prior to the purchase date.

    4. Post-Acquisition Uses Describe all uses to which the property has been put 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.

    5. Continuing Obligations
      1. Describe in detail the specific appropriate care that you exercised (or if you've yet to acquire the property, that you will exercise upon acquiring the property) with respect to hazardous substances found at the facility by taking reasonable steps to: stop any continuing releases; prevent any threatened future release; prevent or limit exposure to any previously released hazardous substance.

      2. Please confirm your commitment to: comply with all land use restrictions and institutional controls; assist and cooperate with those performing the cleanup and to provide access to the property; comply with all information requests and administrative subpoenas that have or may be issued in connection with the property; and provide all legally required notices.

    If neither the CAR or the Borrower owns the site, then the Borrower should answer the following questions:

    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/borrower and the owner's/borrower's role in the work to be performed.

    3. c. Explain how you will obtain access to the site.

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