ARRA

Programmatic Terms and Conditions for
LUST Recovery Act Assistance Agreements

1.  Compliance with expeditious use of LUST Recovery Act Funds

The recipient shall obligate funds for contracts, subgrants, or similar transactions for at least 35 percent of funds, and expend at least 15 percent of funds within nine months of this award. EPA will consider the recipient's failure to comply with this requirement as a material failure to perform, which may warrant appropriate enforcement action under 40 CFR 31.43.

Note: The term obligate means that a state has entered into a legally binding contract, subgrant, or other transaction that requires a state to pay or reimburse another organization for service or products necessary to carry out the LUST Recovery Act assistance agreement. For example, if a state has a contract that is structured for incremental work, the obligation occurs when the work is actually ordered. The term expend means an actual outlay of funds to liquidate obligations or to compensate state personnel.

2.  Utilization of Cost Recovery Funds

If the recipient receives Recovery Act cost recovered funds after its Recovery Act assistance agreement is closed, the recipient must use the recovered funds for activities authorized in its non-Recovery Act LUST program cleanup assistance agreement.

3.  Compliance with Energy Policy Act Provisions

The recipient understands that it is subject to requirements described in current EPA guidelines implementing Subtitle B, Underground Storage Tank Compliance Act, of Title XV of the Energy Policy Act that are effective as of the date of this award.

Note: The Energy Policy Act of 2005 (EPAct) required any state receiving LUST funding to conduct certain activities. That requirement applies to LUST Recovery Act funds as well. To remain eligible for LUST funding, states must follow all EPAct assistance agreement related provisions. These provisions include states' certifying compliance/progress as part of their assistance agreement application, and Regions consulting with OUST on states' EPAct implementation status before issuing assistance agreements.

4.  Recovery Act Performance Measures

To the maximum extent practicable the State has linked this cooperative agreement to the structure of U.S. EPA's Strategic Plan and GPRA goals. U.S. EPA's structure outlines certain outcomes and outputs that must be appropriately addressed. In accordance with 40 CFR §31.40, the State agrees to submit performance reports that include brief information on each of the following areas: a) a comparison of actual accomplishments to the outputs/outcomes established in the assistance agreement work plan for the period; b) the reasons for slippage if established outputs/outcomes were not met; and c) additional pertinent information, including, when appropriate, analysis and information of cost overruns or high unit costs.

In addition, recipients will report on the following 8 measures outlined in the Guidance To Regions For Implementing The LUST Provision Of The American Recovery And Reinvestment Act Of 2009, EPA-510-R-09-003, June 2009.:

In accordance with 40 C.F.R. § 31.40 (d), the recipient agrees to inform EPA as soon as problems, delays or adverse conditions become known which will materially impair the ability to meet the outputs/outcomes specified in the assistance agreement work plan. Quarterly reports shall be due 10 days after the reporting period. The recipient shall submit a final performance report to the EPA Project Officer (PO) within ninety (90) days after the expiration of the project period.

5.  Assurances

In accordance with 40 CFR §31.11(c), the State assures that it will comply with all applicable federal statutes and regulations in effect during the project period of the Cooperative Agreement.

In the event that the State requests and receives approval to extend the project/budget period of this Cooperative Agreement, the State agrees to continue reporting on activities that are being conducted with funds from this Cooperative Agreement until the Cooperative Agreement is closed.

6.  EPA's Substantial Involvement in Cooperative Agreement

In accordance with the Federal Grant and Cooperative Agreement Act of 1977 (FGCAA), the use of cooperative agreements entails substantial federal involvement with recipients during performance of work plan activities. Pursuant to EPA Order 5700.1, Policy for Distinguishing Between Assistance and Acquisition, March 22, 1994, EPA's substantial involvement in this Cooperative Agreement will include monitoring of the State's implementation of an effective UST program and progress toward meeting all applicable provisions of the Energy Policy Act of 2005. In addition, EPA will monitor the State's enforcement, corrective action, and cost recovery policies and procedures for responding to releases from federally regulated USTs. EPA will utilize the information provided in the Consolidated Budget portion of the work plan to monitor progress of the State's activities at specific sites receiving LUST Trust Fund monies. EPA will also collaborate with the State to determine the most effective uses of LUST Trust Fund monies at specific sites.

7.  Site-Specific Cost Accounting

The State agrees to organize and maintain site-specific information consistent with accounting thresholds and policies described in the Cost Recovery Policy for the Leaking Underground Storage Tank Trust Fund (OSWER Directive 9610.10A, May 1994), where Trust Fund monies are used.

Prior to making expenditures of Trust Fund monies for corrective and enforcement actions, a system must be in place to record these types of costs on a site-specific basis. When site-specific accounting is required, all costs that can be identified to a particular site should be charged accordingly and State contractors must bill costs on a site-specific basis for corrective action and enforcement work performed at those sites.

8.  Program Income

The State acknowledges that expenditures from the LUST Trust Fund constitute a liability of the owner/operator to the United States and agrees to retain recoveries of any LUST Trust Fund expenditures as program income, as described in OMB Directive A-102 and 40 CFR §31.25(g)(2), to be used for additional eligible LUST Trust Fund activities.

9.  Cost Recovery Records and Documentation

The State shall maintain supporting documentation and appropriate records in support of any future cost recovery efforts. The State shall adhere to the principles of documentation and records retention specified in OSWER Directive 9610.10A. On topics not addressed by the directive, the State agrees to adhere to the principles of documentation and record retention specified in the Leaking Underground Storage Tank Trust Fund State Financial Management Handbook, EPA/510/R-89/001, March 1989. The State agrees to make these records available to the federal government, as needed, on a case-by-case basis.

10.  Financial Accounting Draw-downs

The State shall identify ASAP draw-downs under EPA's three major activity codes: "7"--General Support and Management, "E"--Site Cleanup Actions, and "4"--Enforcement.