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8. Petroleum Sites. (Disregard this question if you do not have a petroleum site.)

The Brownfields Law allows certain sites contaminated with petroleum or petroleum product to be eligible for brownfields grant funding. Eligibility will be determined by EPA or the state, as appropriate (See Appendix 3, part 3.3.2 Contamination by Petroleum or Petroleum Product for a description of the eligibility requirements).

Non-Tribal applicants must provide the information requested below to your state, so that the state can make the necessary determinations on petroleum site eligibility in Appendix 3, part 3.3.2. Include any response to your request received from your state regarding site eligibility with this proposal. If you do not receive a written response from your state by the deadline for filing proposals, please indicate this in your proposal cover letter. (Note: You must provide EPA with the date you requested your state to make the petroleum site determinations. EPA will make the petroleum site eligibility determination if a state is unable to do so following a request from an applicant.) Also in your letter to the State, please request that the State provide information regarding whether it applied EPA's guidelines in making the petroleum determination or, if not, what standard it applied.

Tribal applicants must submit the following information with their proposal to EPA. EPA will make the petroleum site eligibility determinations for Tribes.

Provide the following information to your state and to EPA:

a) Current and Immediate Past Owners. Identify the current and immediate past owner of the site. For purposes of petroleum eligibility determinations in these Guidelines only, the current owner is the entity that will own the site on June 30, 2008.

b) Acquisition of Site. Identify when and by what method the current owner acquired the property (e.g., purchase, tax foreclosure, donation, eminent domain).

c) No Responsible Party for the Site Identify whether the current and immediate past owner (which includes, if applicable, the applicant) (1) dispensed or disposed of petroleum or petroleum product, or exacerbated the existing petroleum contamination at the site, and (2) took reasonable steps with regard to the contamination at the site.

d) Cleaned Up by a Person Not Potentially Liable Identify whether you (the applicant) dispensed or disposed of petroleum or petroleum product, or exacerbated the existing petroleum contamination at the site, and whether you took reasonable steps with regard to the contamination at the site.

e) Relatively Low Risk Identify whether the site is of "relatively low risk" compared to other petroleum or petroleum product-only contaminated sites in the state in which the site is located, including whether the site is receiving or using Leaking Underground Storage Tank (LUST) Trust Fund monies.

f) Judgments, Orders, or Third Party Suits. Provide information that no responsible party (including the applicant) is identified for the site through, either:

• A judgment rendered in a court of law or an administrative order that would require any person to assess, investigate, or clean up the site; or
• An enforcement action by federal or state authorities against any party that would require any person to assess, investigate, or clean up the site; or
• A citizen suit, contribution action or other third party claim brought against the current or immediate past owner, that would, if successful, require the assessment, investigation, or cleanup of the site.

g) Subject to RCRA Identify whether the site is subject to any order under section 9003(h) of the Solid Waste Disposal Act.

h) Financial Viability of Responsible Parties For any current or immediate past owners identified as responsible for the contamination at the site, provide information regarding whether they have the financial capability to satisfy their obligations under federal or state law to assess, investigate or clean up the site. Note: If no responsible party is identified in (c) or (f) above, then the petroleum-contaminated site may be eligible for funding. If a responsible party is identified above, EPA or the state must next determine whether that party is viable. If any such party is determined to be viable, then the petroleum-contaminated site may not be eligible for funding.

If you are unable to obtain information on any of the above questions, you must include a brief explanation of why the information requested above is not available.

Appendix 3 section 3.3.2 pages 67-70

3.3.2 Contamination by Petroleum or Petroleum Product

Petroleum-contaminated sites (except those sites receiving LUST trust fund monies) may be eligible for brownfields funding if the applicant can provide information that will enable EPA or the state to make certain statutory determinations, as described in Appendix 49. (EPA will make the statutory determinations for tribes). Petroleum-contaminated sites (or portions of properties contaminated with petroleum or petroleum product ) that are eligible for brownfields funding include certain sites that are not underground storage tank (UST) sites as described below. Petroleum is defined under CERCLA as "crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under that section."

Please note that States may, but are not required, to use this guidance to determine whether sites contaminated by petroleum or petroleum products are eligible for brownfields grant funding. States may apply their own laws and regulations if applicable to eligibility determinations under Section 3.3.2.

For a petroleum contaminated site(s) that otherwise meets the definition of a brownfields site to be eligible for funding, EPA or the state must determine:

1. the site is of "relatively low risk" compared with other "petroleum-only" sites in the state; and

2. there is no viable responsible party; and

3. the site will not be assessed, investigated or cleaned up by a person that is potentially liable for cleaning up the site.

In addition, petroleum-contaminated sites must not be subject to a corrective action order under the Resource Conservation and Recovery Act (RCRA) s9003(h).

In the case of proposals that include requests for an assessment or direct cleanup grant to address petroleum-contaminated sites, applicants must provide information in their proposal indicating whether the site meets each of the criteria listed above. If EPA awards an applicant a revolving loan fund grant, the state or EPA must make the same determinations for site(s) that will be cleaned up under a loan or subgrant. These criteria are explained below.

Note: A determination by the EPA or a state under CERCLA section 101(39)(D) for the purpose of brownfields funding does not release any party from obligations under any federal or state law or regulation, or under common law, and does not impact or limit EPA or state enforcement authorities against any party.

"Relatively Low Risk":

Applicants whose brownfield site(s) include properties or portions of properties contaminated with petroleum or petroleum products must provide information in their proposal indicating that the property represents a relatively low risk (compared to other petroleum-only sites). Our view is that the following types of petroleum-contaminated sites are high risk sites, or are not of "relatively low risk."

1. "High risk" sites currently being cleaned up using LUST trust fund monies.

2. Any petroleum-contaminated site that currently is subject to a response under the Oil Pollution Act (OPA).

Note: Any site that does not fall under any of the provisions listed above would be considered to be of relatively low risk for purposes of determining eligibility for a brownfields grant.

"A Site for Which There is No Viable Responsible Party"

EPA or the state is required to determine that there is no viable responsible party that can address the petroleum contamination at the site. If EPA, or the state, identifies a party that is responsible for the site, and that party is financially viable, then the site is not eligible for funding and EPA cannot award the grant. This analysis is twofold -- EPA or the state must first determine whether a responsible party exists and, if a responsible party is identified, then determine whether that party is viable. Applicants must provide information in their proposal to demonstrate that the property or portion of property contaminated with petroleum or petroleum product for which they seek funding has no viable responsible party.

¹⁰ For purposes of determining petroleum brownfield grant eligibility "reasonable steps with regard to contamination at the site" includes, as appropriate: stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental, or natural resource exposure to earlier petroleum or petroleum product releases. Reasonable steps are discussed in more detail on pages 9-12 of EPA's March 6, 2003, "Common Elements" guidance.

A petroleum-contaminated site may be determined to have no responsible party if the site was last acquired (regardless of whether the site is owned by the applicant) through tax foreclosure, abandonment, or equivalent government proceedings, and that site meets the criteria in (1) below. Any petroleum-contaminated site not acquired by a method listed above may be determined to have no responsible party if the site meets the criteria in both (1) and (2) below.

(1) No responsible party has been identified for the site through:

(a) a judgment rendered in a court of law or an administrative order that would require any party (including the applicant) to assess, investigate, or clean up the site,

(b) an enforcement action by federal or state authorities that would require any party (including the applicant) to assess, investigate, or clean up the site, or

(c) a citizen suit, contribution action or other third party claim brought against the current or immediate past owner for the site that would, if successful, require the assessment, investigation, or clean up the site, and

(2) The current and immediate past owner did not dispense or dispose of, or own the subject property during the dispensing or disposal of, any contamination at the site, did not exacerbate the contamination at the site, and took reasonable steps with regard to the contamination at the site.10

*For purposes of the grant program and these guidelines only, the current owner is the entity that will own the property on June 30, 2007. For cleanup grants, the current owner must be the applicant.

If no responsible party is identified above, then the petroleum-contaminated site may be eligible for funding. If a responsible party is identified above, EPA or the state must next determine whether that party is viable. If any such party is determined to be viable, then the petroleum-contaminated site may not be eligible for funding. A party will be considered viable if:

(3) the party is financially capable of satisfying obligations under federal or state law to assess, investigate or clean up the site. For example, a corporation that may be responsible for the cleanup of the site that is insolvent or defunct will generally not have the financial capacity to satisfy its obligations. Resources available to assist in determination of financial viability include Chapter 3 (Business Status and Financial Research) of the EPA PRP Search Manual at http://www.epa.gov/Compliance/resources/publications/cleanup/superfund/prpmanual/

and the EPA economic models for analyzing financial ability to pay at http://www.epa.gov/compliance/civil/programs/econmodels/

"Cleaned Up by a Person Not Potentially Liable":

Brownfields funding may be awarded for the assessment and cleanup of petroleum-contaminated sites provided:

1) the applicant has not dispensed or disposed of petroleum or petroleum-product at the site, and

2) the applicant did not exacerbate the contamination at the site and took reasonable steps with regard to the contamination at the site.

"Is not subject to any order issued under s9003(h) of the Solid Waste Disposal Act":

Proposals that include requests for an assessment or direct cleanup grant to address petroleum-contaminated sites must not be subject to a corrective action order under a Resource Conservation and Recovery Act (RCRA) s9003(h). If EPA awards an applicant a revolving loan fund grant, the State or EPA must make the same determination for site(s) that will be cleaned up under a loan or subgrant.ext