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USTfields Qs & As: Eligibility Requirements
Q1: Heating oil tanks do not qualify for USTfields Pilots, right?
A: Right. Only federally-regulated underground storage tanks are eligible for USTfields Pilots.
Q2: What is a federally-regulated underground storage tank?
A: The definition of a federally-regulated underground storage tank can be found on this home page as well as the types of storage tanks that are exempt from federal regulation.
Q3: If a state currently has an USTfields Pilot, can the state apply during this round?
A: Yes. The state can partner with local areas other than the existing pilot community named in the original USTfield Pilots (PDF) (2 pp, 38K, About PDF) 2000 USTfields announcement and develop three new pilot proposals for submission by November 19, 2001. All states may submit proposals.
Q4: How many proposals can each state submit?
A: A state can submit up to three (3) proposals. (For further information, see question 5 below).
Q5: There can be only three (3) sites per state, right?
A: No. States can submit proposals for three (3) USTfields Pilots, not three sites. A pilot can have several sites.
Q6: Do the states have to share in the cost of the pilot? Can the partnering municipality provide the cost share ("match") on behalf of the state?
A: As required by the statute authorizing these cooperative agreements, States must pay ten percent of the cost of the cooperative agreement. States may use third parties (e.g., municipalities) to help them meet the cost share requirement in accordance with the regulations at 40 CFR 31.24 ("Matching or cost sharing").
Q7: If a state can demonstrate its economic need, will that be factored into the selection of USTfields Pilots?
A: The eligibility requirements and evaluation criteria are those described in the Proposal Guidelines for USTfields Pilots(PDF) (28 pp, 2MB, About PDF) pilot proposal guidelines [pages 4 and 19 through 24]. A state's economic need is neither an eligibility requirement nor an evaluation criteria for USTfields Pilots.
Q9: Are pre-1974 tanks eligible for USTfields Pilots?
A: Yes.
Q10: Under eligible activities, I don't see removal of tanks. Can we remove tanks with this money?
A: Yes. USTfields Pilot funds are LUST Trust funds and so are subject to the same requirements. An October 15, 1999, Memorandum on use of Trust Funds (PDF) (1 pg, 55K, About PDF) memo from OUST entitled "Use of LUST Trust Fund Appropriations at Abandoned Sites With Underground Storage Tanks", states: "Tank removal is an eligible LUST Trust Fund expense only when it is related to corrective action (i.e., when it is necessary to successfully undertake or complete corrective action.)"
Q11: We are finding tanks where we don't know if there's contamination. Is it OK to apply for those?
A: Yes. Under Eligible Properties in the Proposal Guidelines for USTfields Pilots (PDF) (28 pp, 2MB, About PDF) USTfields proposal guidance it states: "For purposes of determining eligibility, the implementing agency may also rely on experience or information on the likelihood of a release from an underground storage tank (e.g., tank type, age, condition)." And later in that section it states: "A property for which the implementing agency anticipates likely contamination but for which a site assessment is needed to confirm the existence and extent of a release is eligible."
Q12: Would it be helpful for a state to name a city as a pilot?
A: Yes. It would be more than helpful-it is essential. On page 2 of the proposal guidance, we define "pilot" as "(1) The city, county, town, or other political subdivision that is partnering with its state,....." The state is the applicant for the funding, but it must partner with a political subdivision on a pilot project to qualify for funding. There is no preference for whether the local partner is a city, county, town, or other political subdivision of the state.
Q13: Must a town have a specific site with an UST to be a pilot?
A: Yes.
Q14: What about sites we don't know about yet? Can we use the funds as we find the sites?
A: No. Only eligible sites clearly listed in the USTfields Pilot proposal are the ones where the pilot LUST Trust funds can be used. On page 10 of the proposal guidelines, under Cover Page, item e, applicants are required to provide of list of proposed properties where the USTfields Pilot LUST funds will be used.
Q15: Can USTfields money be used on an existing LUST Trust cleanup site (area)?
A: Yes.
Q16: Can the pilot application have a number of proposed eligible sites in it, and then we go down the priorities list for as long as the funding lasts?
A: Yes. [Also, see Q17 below.]
Q17: If you have a list of sites in your pilot and then you can't get to all of those sites with the USTfields funds, are we still OK?
A: It depends. If the pilot proposal is accepted by EPA, the scope of work for the pilot will include a list of properties where USTfields Pilot funds will be used, and the applicant must perform the activities specified in the scope of work for those sites. Otherwise, the state recipient would not be in compliance with a material term of the cooperative agreement. If the recipient cannot get to all of the sites listed, the recipient may request that EPA amend the cooperative agreement to remove the sites that could not be addressed with the pilot funds from the scope of work. EPA must approve the amendment to change the scope of work.
Q18: Can an "eligible property" include a property that has impacts from a release from a federally-regulated UST on a neighboring property?
A: If you mean where there is third-party impact, then yes, this property could be an eligible property.
Q19: Under "Eligible Properties" in the eligibility requirements, it states "No person can be found within 90 days or less, who is an owner or operator of the underground storage tank...." It is difficult for us to determine this-what should we do?
A: States should handle potential USTfields Pilot sites the same way they handle LUST sites now, including those sites with owners and operators who cannot be found. States may vary in terms of how they handle LUST, and now USTfields Pilot, sites. As long as a state adheres to its established cost recovery policy (e.g., identification of owner/operator) outlined or referenced in its LUST cooperative agreement with EPA then this should not present a problem.
Q20: Can USTfields money be used on activities other than corrective action and oversight activities, such as: preparation of an economic development plan and/or revitalization plan for a pilot area?
A: No. USTfields Pilot funds are LUST Trust funds and thus cannot be used for preparation of an economic development plan and/or revitalization plan for a pilot area.
Q21: Can USTfields money be used to conduct a health-risk assessment for residents and employees located in buildings within the proposed pilot area?
A: EPA, in OSWER Directive 9650.10A, "LUST Trust Fund Cooperative Agreement Guidelines," May 24, 1994, states that exposure assessments to determine potential health effects of a leak and the establishment of corrective action priorities are an allowable activity for use of the LUST Trust Fund (and thus, USTfields money). If a health-risk assessment can satisfy this description, then USTfields money can be used.
Q22: What do you mean by "chemicals of concern"?
A: The term "chemicals of concern" means the chemical constituents one typically finds in petroleum (e.g., BTEX and MTBE).
Q23: Can states spend USTfields money on properties that have been impacted by a commingled plume (e.g., petroleum from USTs commingled with petroleum from ASTs, petroleum from USTs commingled with hazardous substances from USTs, petroleum from USTs commingled with hazardous substances from ASTs)?
A: The states' use of the LUST Trust funds (and thus, USTfields money) is limited to addressing releases of petroleum from underground storage tanks. States, in addressing releases of petroleum from underground tanks, may also incidentally end up addressing other chemicals or petroleum from ASTs that are commingled with the petroleum from USTs.
Q24: Can we use the USTfields funds to provide a temporary water supply to a community of 25 whose water supply has been contaminated by petroleum from an UST?
A: Yes, RCRA § 9003(h)(5) authorizes states to spend LUST Trust Fund money (and thus, USTfields funds) on corrective actions that include providing alternative household water supplies. However, it should be noted that the USTfields Pilot program is a competitive program, and, as stated in the proposal guidance, EPA would prefer the use of USTfields Pilot funds for assessment.
Q25: What is the significance of the August 23, 2001 date for depositing and dispensing petroleum in USTs, as mentioned in the USTfields Pilot Federal Register (FR) notice?
A: We wanted to have a bright line date to determine the universe of USTs that EPA would consider for this current round of the USTfields pilots. We used the date of the USTfields Pilot Federal Register (FR) notice [August 23, 2001] so that if a new tank came online (i.e., if one deposited petroleum into or dispensed petroleum from an UST for the first time) after the FR notice was published it would not qualify for a pilot.
Q26: With a commingled plume, would Brownfields assume control of that? Or can they do the assessment only?
A: EPA's Brownfields program addresses the assessment and cleanup of hazardous substances. The Brownfields Assessment Pilots provide funding for the assessment of contaminated or potentially contaminated property. The Brownfields Cleanup Revolving Loan Fund (BCRLF) Pilots provide funding to capitalize the cleanup of contaminated property. Assessment and BCRLF pilots may not be used for the cleanup of petroleum products, unless they are believed to be commingled with a hazardous substance, pollutant, or contaminant (e.g., used oil). For example, a service station is a likely candidate for commingled waste. Over the years the service station may have leaked both petroleum and hazardous substances (e.g., cleaning solvents) into the ground. This mixing of petroleum and hazardous substances could create a "commingled" scenario where the use of EPA Brownfields funds may be appropriate. If there is a site that has commingled petroleum and hazardous substance, it is recommended that both Brownfields and USTfields personnel coordinate their efforts.
Q27: If a proposal doesn't involve a high-priority site, should the Regional office submit the proposal to Headquarters?
A: It depends. If the site has already been assessed and the implementing agency has determined that the site is not high priority, then as stated in the proposal guidelines on page 5, "USTfields LUST Trust funds can no longer be used for activities at that property." This is an eligibility requirement and makes costs for other activities at the site other than assessment costs ineligible. As indicated on page 19 of the proposal guidelines, two "threshold" evaluation criteria are whether the proposal meets the eligibility requirements on page 5 and whether the budget for the proposal contains only eligible costs. Applicants are allowed 5 days to resolve ineligibility issues. If the applicant resolves the matter satisfactorily (e.g., by revising the proposal to eliminate the ineligible activities), then the proposal can be evaluated by the Regional Review panel and submitted to Headquarters for consideration. Otherwise, the proposal should not be forwarded because it has failed to meet a threshold legal requirement.
Q28: Must you suspect a leak from the UST before you can use the money?
A: Yes. For guidance on this issue, see Q10 above.
Q29: Can the money be used to reimburse a partner for LUST expenditures?
A: It depends upon what you mean by "reimburse" and "partner." A state may provide a local government partner with a subgrant to reimburse it for eligible costs, and the subgrantee would be accountable to the state for those expenditures. [40 CFR 31.4 Subgrantee; 40 CFR 31.37(a)] If the "partner" is an environmental consulting, engineering, or construction firm that provides services to the state at the site then the state must follow its procurement process to provide reimbursement for costs. [40 CFR 31.36] If the cleanup work occurred before the pilot award, details of the cleanup would have to be included in the pilot proposal for the cleanup to be eligible for pre-award costs (see page 6 of the proposal guidance). States incur pre-award costs at their own risk.
Q30: What is the transferability of funds from one site within a project to another site? Let's say the costs to accomplish the scope of work at Site A end up being $5,000 less than budgeted for-can those $ be moved to Site B?
A: Yes, as long as Site B is part of your approved USTfields Pilot award or you obtain an amendment to the scope of work for the approved award to add Site B.
Q31: Can sites that are not currently owned by the municipality but that are expected to be purchased by it be included in the application?
A: They could be, but details of the ownership of the property and the timing of this action would have to be clearly spelled out in the pilot proposal in order for EPA to evaluate the merits of this proposal relative to other proposals received.
Q32: Is a site eligible as an USTfields pilot if the property owner is planning to develop, or redevelop, the site in the future as a gas station with either new USTs or ASTs?
A: There is nothing in the proposal guidance that would prohibit this site as ineligible. The proposal guidance does not limit the future installation and use of new USTs or ASTs at an USTfields pilot. The proposal guidance states, " ... only properties on which petroleum will no longer be deposited in or dispensed from any federally-regulated underground storage tank after the date of the Federal Register Notice, "Leaking Underground Storage Tank (LUST) Trust Fund Cooperative Agreements -- USTfields Pilots; Announcement of Proposal Deadline for Request for Proposals for the Competition for USTfields Pilots, are eligible." This language from the proposal guidance is intended to mean that only properties on which petroleum was not deposited or dispensed from any existing federally-regulated UST after August 23, 2001 (the date of the Federal Register notice for the USTfields proposal guidance) are eligible for the current round of USTfields pilots. The guidance is not intended to mean that the future installation and use of any new USTs or ASTs would render the affected property ineligible as an USTfields pilot. (With respect to ASTs, please note that the USTfields pilot program does not cover ASTs. The important factor in determining whether a site would be eligible for the USTfields pilot program in the first instance is whether the property contains an abandoned UST.)