U.S. EPA Brownfields Cleanup Cooperative Grant Agreement for 411 E. 15th Street_Blum SiteCopyrighted
November 20, 2017
City of Dubuque Consent Items # 14.
ITEM TITLE: U.S. EPA Brownfields Cleanup Cooperative Grant
Agreement for 411 E. 15th Street Site
SUMMARY: City Manager recommending adoption of a resolution
approving the terms of the Cooperative Agreement with the
U.S. Environmental Protection Agency for the City to
receive Brownfields Cleanup Grant funding for the cleanup
of the Blum Brownfields site as part of the Bee Branch
Watershed Flood Mitigation Project.
RESOLUTION Approving the Brownfields Cleanup
Cooperative Grant Agreement between the U.S.
Environmental Protection Agency and the City of Dubuque,
Iowa for the cleanup of the former Blum Scrap Yard and
Recycling Facility at 411 E. 15th Street for the Bee Branch
Watershed Flood Mitigation Project.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s)
ATTACHMENTS:
Description
Flood Control Maintenance Facility -US EPA
Brownfields Cleanup Cooperative Grant Agreement -
MVM Memo
Staff Memo
Resolution
Cooperative Agreement
Type
City Manager Memo
Staff Memo
Resolutions
Supporting Documentation
THE CITY OF
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Flood Control Maintenance Facility (Phase 9 of the Bee Branch
Watershed Flood Mitigation Project), US EPA Brownfields Cleanup
Cooperative Grant Agreement
DATE: November 14, 2017
Dubuque
klitetri
*America City
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2007.2012
2013.2017
City Engineer Gus Psihoyos is requesting City Council adopt a resolution approving the
terms of the Cooperative Agreement with the U.S. Environmental Protection Agency for
the City to receive $200,000 in Brownfields Cleanup Grant funding for the cleanup of the
Blum Brownfields site as part of the Bee Branch Watershed Flood Mitigation Project.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MicKael C. Van Milligen'
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Gus Psihoyos, City Engineer
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
SUBJECT: Flood Control Maintenance Facility (Phase 9 of the Bee Branch
Watershed Flood Mitigation Project), CIP#7202609 & #3402609
U. S. EPA Brownfields Cleanup Cooperative Grant Agreement
DATE: November 10, 2017
Dubuque
tatitttl
IUI AMeMe� City
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2007.201.2
2013. 2017
INTRODUCTION
The purpose of this memorandum is to seek authorization to enter into an agreement
with the U. S. Environmental Protection Agency in order to utilize the $200,000
Brownfields Cleanup Grant for the Bee Branch Flood Control Maintenance Facility
(Phase 9 of the Bee Branch Watershed Flood Mitigation Project).
BACKGROUND
In June of 2014, the City Council passed Resolution 172-14 approving the acquisition of
411 E. 15th Street for the Bee Branch Watershed Flood Mitigation Project.
Phase I and Phase II Environmental Assessments of the 1.29 -acre Blum Brownfields
site identified high levels of lead, arsenic, PCBs, PAHs, and other pollutants in the soil.
In addition, asbestos was identified within the buildings, as well as, indications that
materials handled throughout the years have been stored within the buildings (i.e.
76 -pound steel flask shipping containers of liquid mercury, empty chemical drums,
batteries, transformers, motors, automobile parts, etc.). Based on the results of the Phase I
and subsequent Phase II, the Blum property is not suitable for future development
without environmental remediation.
In December of 2016, the City submitted an application to the U. S. Environmental
Protection Agency requesting $200,000 in Brownfields Cleanup Grant Program
assistance to help finance the cleanup of the Blum Brownfields site.
DISCUSSION
On September 7, 2017, the U. S. Environmental Protection Agency awarded $200,000
to assist the City with the cleanup of the Blum Brownfields site. They also provided a
Cooperative Agreement outlining the terms and conditions associated with the City's
use of the funding to clean up the Blum Brownfields site.
The first consideration in the cleanup of this site and the focus of the $200,000 grant
funding will be used to address the environmental issues associated with the two larger
buildings present on the property. The western building could be redeveloped for future
use. That decision will be made at a later date. The southeastern building will be
deconstructed/demolished as its structural integrity is suspect. The timeline outlines that
the work associated with this grant funding will be complete by September 30, 2019.
RECOMMENDATION
I recommend that the City agree to the terms of the attached Cooperative Agreement
with the U. S. Environmental Protection Agency in order to secure the use of $200,000
in Brownfields Cleanup grant funding for the Blum Brownfields Site at 411 E. 15th Street
to make full use of the property as necessary for the Bee Branch Watershed Flood
Mitigation Project.
BUDGET IMPACT
The FY2018 CIP budget for the Bee Branch Flood Mitigation Maintenance Facility
Project (#3402609) includes $300,000.00 for clearing the site and thus the required
$40,000.00 in matching funds to perform the cleanup activities outlined in the
environmental assessments and outlined in the Cooperative Agreement.
ACTION TO BE TAKEN
I respectfully request adoption of the attached resolution approving the terms of the
Cooperative Agreement with the U. S. Environmental Protection Agency in order for the
City to receive $200,000 in Brownfields Cleanup Grant funding for the cleanup of the
Blum Brownfields site as part of the Bee Branch Watershed Flood Mitigation Project.
Attach.
Prepared by Deron Muehring
Cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Jenny Larson, Budget Director
Jean Nachtman, Finance Director
Steve Brown, Project Manager
Deron Muehring, Civil Engineer
2
RESOLUTION NO. 367-17
RESOLUTION APPROVING THE BROWNFIELDS CLEANUP COOPERATIVE GRANT
AGREEMENT BETWEEN THE U. S. ENVIRONMENTAL PROTECTION AGENCY AND
THE CITY OF DUBUQUE, IOWA FOR THE CLEANUP OF THE FORMER BLUM
SCRAP YARD AND RECYCLING FACILITY AT 411 E. 15TH STREET FOR THE BEE
BRANCH WATERSHED FLOOD MITIGATION PROJECT
Whereas, the City purchased the Blum Brownfields site, a former scrap yard and
recycling facility located at 411 E. 15th Street as part of the Bee Branch Watershed Flood
Mitigation Project; and
Whereas, Phase I and Phase II Environmental Assessments of the Blum
Brownfields site identified lead, arsenic, PAHs, and other contaminants in the soil and
throughout the buildings such that the remediation or removal of the contaminants is
required to fully utilize the site for its intended purpose; and
Whereas, cleaning up and reinvesting in brownfields, properties that may have
hazardous substances, pollutants or contaminants present, protects human health and
the environment, reduces blight, and takes development pressures off greenspaces and
working lands; and
Whereas, the U. S. Environmental Protection Agency provides grants and
technical assistance to communities, states, tribes and others to assess, safely clean up
and sustainably reuse brownfields properties; and
Whereas, the City of Dubuque submitted an application to the U. S. Environmental
Protection Agency requesting $200,000 in Brownfields Cleanup Grant Program
assistance to help finance the cleanup of the Blum Brownfields site; and
Whereas, on September 7, 2017, the U. S. Environmental Protection Agency
awarded $200,000 to assist the City with the cleanup of the Blum Brownfields site; and
Whereas, the City Council has determined that execution of the Cooperative
Agreement is in the best interests of the City of Dubuque.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA, THAT:
Section 1. The Cooperative Agreement with the U. S. Environmental Protection
Agency is hereby approved.
Section 2. The City Manager is hereby authorized to execute any documents as
are necessary to bind the City and to deliver the Cooperative Agreement and any other
such documents as the U. S. Environmental Protection Agency may reasonably request
and as necessary for the City's receipt of Brownfields Cleanup grant funding for the
Blum Brownfields site at 411 E. 15th Street.
Passed, approved and adopted this 20th day of November 2017.
Attest:
Kevint. Firnstahl, at, City Clerk
oy D. Buol, Mayor
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A( PROS2
HLLIPIENI 1 YPE
Municipal
U.S. ENVIRONMENTAL
PROTECTION AGENCY
Cooperative Agreement
HLtIPIENI
Lily of Dubuque
50 West 13th Street
Dubuque, IA 52001
EIN 42 6004596
PROJECT MANAGER
Steve Sampson Brown
50 West 13th Street
Dubuque, IA 52001
E -Mail wwwcltyofdubuqueorg
Phone 563 589 4272
PROJECT TITLE AND DESCRIPTION
GRANT NUMBER (FAIN)
MODIFICATION NUMBER
PROGRAM CODE
IYPL VH AGI IDN
New
PAYMENT METHOD
ACH
BF 97762001 0 Page 1
97762001
0
BF
DATE OF AWARD
09/07/2017
MAILING BAIL
09/14/2017
ACHIF
77694
Send Payment Request to -
U S Environmental Protection Agency LVFC
4220 S Maryland Pkwy , Bldg C, Room 503
Las Vegas, NV 89119
Phone Contact 702 798 2467, Fax 702 798 2423
Email LVFC grants@epa.gov
PAYEE
Same as Recipient
50 West 13th Street
Dubuque, IA 52001
EPA PROJECT OFFICER
Brad Eaton
11201 Renner Boulevard, SUPR/STAR
Lenexa, KS 66219
Entail eaton brad@epa.gov
Phone 913 551 7265
EPAGRANT SPECIALIST
Jennifer Erickson
Grants Management Office, PLMG/RFMB/GRMS
EMail erlckson lennifel@epa.gov
Phone 913 551 7997
Dubuque Brownfelds Cleanup
Funds are forcleanup of a Brownfebls site which was aformer scrap yard to remove contaminants threatening residents and the environment
BUDGET PEHIDU
10/01/2017 09/30/2019
10/01/2017PE09/30/2019 I $240,00000 EI PEHIUU(.OSI I $24
010I,000 OOJL[.I PERIOD COSI
NOTICE OF AWARD
Based on your Application dated 08/02/2017 including all modifications and amendments, the United States acting byand through the US Environmental
Protection Agency (EPA) hereby awards $200,003 EPA agrees to cost share 80_00% of all approved budget re nod costs incurred, up to and not exceeding
total federal funding of $200,000 Recipient's sgnature is not requited on this agreement The recipient demonstrates its commitment to carry out this award
by either 1) drawing down funds within 21 days after the EPA awardoremandment nailing date, ort) not filing a notice of disagmenmentwith the award terms
and conditions within 21 days after the EPA award or amendment mailing date If the recipientdisagrees with the terms andconditions specified in this award,
the authorized iepiesentatne of the recipent must furnish a notice of disag tee nment to the EPA Award Official within 21 days after the EPA award or
amendment mailing date In case of disagreement, and until the disagreement Is resolved, the recipient should not draw down on the funds provided by this
award/amendment, and any costs incurred by the tecipent are at its own risk This agreement is subject to applicable EPA tegulatoryand statutory provisions,
all to mm s and conditions of this nv ree me nt and any attachments
ISSUING 0F1-H.E (GNANIS MANAGEMENI 01-1-ILE) AWAHU APPROVAL OPELE
ORGANIZATION/ADDRESS ORGANIZATION/ ADDRESS
Grants Management Uffice U S EPA, Region 7
11201 Renner Boulevard Superfund Division
Lenexa, KS 66219 11201 Renner Boulevard
Lenexa, KS 66219
I HE UNI I EU S I Al LS 01- AMEHILA BY I H' U S LNVIHONMENIAL PHO I LC W N AGENLY
Mg 11a1 signature applied by EPA AY/Md OHlcial
Deboraha K Taus - Grants Management Officer
BAIL
09/07/2017
EPA Funding Information
BF -97762001-0 Page2
FUNDS FORMER AWARD THIS ACTION AMENDED TOTAL
EPA Amount This Action $ $ 200,000 $ 200,000
EPA In -Kind Amount $ $ $ 0
Unexpended Prior Year Balance $ $ $ 0
Other Federal Funds $ $ $ 0
Recipient Contribution $ $ 40,000 $ 40,000
State Contribution $ $ $ 0
Local Contribution $ $ $ 0
Other Contribution $ $ $ 0
Allowable Project Cost $ 0 $ 240,000 $ 240,000
Assistance Program (CFDA) Statutory Authority Regulatory Authority
66 818 - Brownfields Assessment and Cleanup CERCLA Sec 101(39) 2 CFR 200
—Cooperative Agreements CERCLA Sec 104(k)(3) 2 CFR 1500 and 40 CFR 33
Site Name
DUBUQUE
Fiscal
Req No FY Approp. Budget PRC Object Site/Project Cost Obligation /
Code Organization Class Organization Deobligation
1707W17057 1 i E4 0700AG7 301D79 4114 G732OQ00 - 200,000
200,000
Budget Summary Page
Table A - Object Class Category
(Non -construction)
BF - 97762001 - 0 Page 3
Total Approved Allowable
Budget Period Cost
1. Personnel $0
2. Fringe Benefits $0
3. Travel $0
4. Equipment $0
5. Supplies $0
6. Contractual $240,000
7. Construction $0
8. Other $0
9. Total Direct Charges $240,000
10. Indirect Costs: % Base $0
11. Total (Share: Recipient 20 00 % Federal 80 00 %.) $240,000
12. Total Approved Assistance Amount $200,000
13. Program Income $0
14. Total EPA Amount Awarded This Action $200,000
15. Total EPA Amount Awarded To Date $200,000
BF - 97762001 - 0 Page 4
Administrative Conditions
1. General Terms and Conditions
The recipient agrees to comply with the current EPA general terms and conditions available at:
https:l/www.epa.gov/grants/epa-general-terms-and-conditions-effective-april-27-2017-or-later. These
terms and conditions are in addition to the assurances and certifications made as a part of the award and
the terms, conditions, or restrictions cited throughout the award.
The EPA repository for the general terms and conditions by year can be found at
http://www.epa.gov/grants/grant-terms-and-conditions.
2. Payment Freauencv
Recipient agrees to submit, at a minimum, a quarterly billing (payment) request(s) to the EPA, for all
eligible, allowable, allocable, necessary and reasonable costs which are incurred for this project/program.
A payment request is not required to be submitted in the event that the recipient has not incurred such
costs during the quarterly period, but more frequent payments may be requested as costs are incurred.
3. DBE Reaortina Reauirements
GENERAL COMPLIANCE , 40 CFR, Part 33
The recipient agrees to comply with the requirements of EPA's Disadvantaged Business Enterprise (DBE)
Program for procurement activities under assistance agreements, contained in 40 CFR, Part 33.
MBE/WBE REPORTING, 40 CFR, Part 33, Subpart E
MBE/WBE reporting is required in annual reports . Reporting is required for assistance agreements
where there are funds budgeted for procuring construction, equipment, services and supplies, including
funds budgeted for direct procurement by the recipient or procurement under subawards or loans in the
"Other" category that exceed the threshold amount of $150,000, including amendments and/or
modifications.
Based on EPA's review of the planned budget, this award meets the conditions above and is subject to the
Disadvantaged Business Enterprise (DBE) Program reporting requirements. However, if recipient believes
this award does not meet these conditions, it must provide the EPA R7 Grants Specialist listed on the
award with a justification and budget detail within 21 days of the award date clearly demonstrating that,
based on the planned budget, this award is not subject to the DBE reporting requirements.
The recipient agrees to complete and submit a "MBENVBE Utilization Under Federal Grants, Cooperative
Agreements and Interagency Agreements" report (EPA Form 5700-52A) on an annual basis. All
procurement actions are reportable, not just that portion which exceeds $150,000.
When completing the annual report , recipients are instructed to check the box titled "annual" in section
1B of the form. For the final report , recipients are instructed to check the box indicated for the "last
report" of the project in section 1B of the form . Annual reports are due by October 30t of each year .
Final reports are due by October 30`h or 90 days after the end of the project period , whichever comes
first.
The reporting requirement is based on total procurements. Recipients with expended and/or budgeted
funds for procurement are required to report annually whether the planned procurements take place
during the reporting period or not. If no budgeted procurements take place during the reporting period, the
recipient should check the box in section 5B when completing the form.
MBENVBE reports should be sent to R7Grants@epa.gov. The current EPA Form 5700-52A can be found
at the EPA Office of Small Business Program's Home Page at httD://www.epa.aov/osbD/dbe repot na.htm
This provision represents an approved deviation from the MBENVBE reporting requirements as described
in 40 CFR, Part 33, Section 33.502; however, the other requirements outlined in 40 CFR Part 33 remain in
effect, including the Good Faith Effort requirements as described in 40 CFR Part 33 Subpart C, and Fair
Share Objectives negotiation as described in 40 CFR Part 33 Subpart D and explained below.
FAIR SHARE OBJECTIVES , 40 CFR, Part 33, Subpart D
A recipient must negotiate with the appropriate EPA award official, or his/her designee, fair share
objectives for MBE and WBE participation in procurement under the financial assistance agreements.
In accordance with 40 CFR, Section 33.411 some recipients may be exempt from the fair share objectives
requirements as described in 40 CFR, Part 33, Subpart D. Recipients should work with their DBE
coordinator, if they think their organization may qualify for an exemption.
ACCEPTING THE FAIR SHARE OBJECTIVES /GOALS OF ANOTHER RECIPIENT
The dollar amount of this assistance agreement, or the total dollar amount of all of the recipient's financial
assistance agreements in the current federal fiscal year from EPA is $250,000, or more. The recipient
accepts the applicable MBE/WBE fair share objectives/goals negotiated with EPA by the IOWA
DEPARTMENT OF NATURAL RESOURCES (IDNR) as follows:
Iowa
MBE WBE
Supplies 0.6% 05.6%
Equipment 2.5% 10.4%
Services 2.5% 11.3%
Construction 1.7% 02.2%
By signing this financial assistance agreement, the recipient is accepting the fair share objectives/goals
stated above and attests to the fact that it is purchasing the same or similar construction , supplies,
services and equipment, in the same or similar relevant geographic buying market as IDNR..
NEGOTIATING FAIR SHARE OBJECTIVES /GOALS, 40 CFR, SECTION 33.404
The recipient has the option to negotiate its own MBE/WBE fair share objectives/goals. If the recipient
wishes to negotiate its own MBE/WBE fair share objectives/goals, the recipient agrees to submit proposed
MBE/WBE objectives/goals based on an availability analysis, or disparity study, of qualified MBEs and
WBEs in their relevant geographic buying market for construction, services, supplies and equipment.
The submission of proposed fair share goals with the supporting analysis or disparity study means that the
recipient is not accepting the fair share objectives/goals of another recipient. The recipient agrees to
submit proposed fair share objectives/goals, together with the supporting availability analysis or disparity
study, to the Regional MBE/WBE Coordinator within 120 days of its acceptance of the financial assistance
award. EPA will respond to the proposed fair share objective/goals within 30 days of receiving the
submission. If proposed fair share objective/goals are not received within the 120 day time frame, the
recipient may not expend its EPA funds for procurements until the proposed fair share objective/goals are
submitted.
SIX GOOD FAITH EFFORTS , 40 CFR, Part 33, Subpart C
Pursuant to 40 CFR, Section 33.301, the recipient agrees to make the following good faith efforts
whenever procuring construction, equipment, services and supplies under an EPA financial assistance
agreement, and to require that sub -recipients, loan recipients, and prime contractors also comply.
Records documenting compliance with the six good faith efforts shall be retained:
(a) Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable
through outreach and recruitment activities. For Indian Tribal, State and Local and Government
recipients, this will include placing DBEs on solicitation lists and soliciting them whenever they
are potential sources.
(b) Make information on forthcoming opportunities available to DBEs and arrange time frames for
contracts and establish delivery schedules, where the requirements permit, in a way that
encourages and facilitates participation by DBEs in the competitive process. This includes,
whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days
before the bid or proposal closing date.
(c) Consider in the contracting process whether firms competing for large contracts could
subcontract with DBEs. For Indian Tribal, State and local Government recipients, this will include
dividing total requirements when economically feasible into smaller tasks or quantities to permit
maximum participation by DBEs in the competitive process.
(d) Encourage contracting with a consortium of DBEs when a contract is too large for one of these
firms to handle individually.
(e) Use the services and assistance of the SBA and the Minority Business Development Agency
of the Department of Commerce.
(f) If the prime contractor awards subcontracts, require the prime contractor to take the steps in
paragraphs (a) through (e) of this section.
CONTRACT ADMINISTRATION PROVISIONS , 40 CFR, Section 33.302
The recipient agrees to comply with the contract administration provisions of 40 CFR, Section 33.302.
BIDDERS LIST, 40 CFR, Section 33.501(b) and (c)
Recipients of a Continuing Environmental Program Grant or other annual reporting grant, agree to create
and maintain a bidders list. Recipients of an EPA financial assistance agreement to capitalize a revolving
loan fund also agree to require entities receiving identified loans to create and maintain a bidders list if the
recipient of the loan is subject to, or chooses to follow, competitive bidding requirements. Please see 40
CFR, Section 33.501 (b) and (c) for specific requirements and exemptions.
Programmatic Conditions
Cleanup Terms and Conditions
Please note that these Terms and Conditions (T&Cs) apply to Brownfields Cleanup Cooperative
Agreements awarded under CERCLA § 104(k).
I. GENERAL FEDERAL REQUIREMENTS
A. Federal Policy and Guidance
1. a. Cooperative Aareement Recipients: By awarding this cooperative agreement, the
Environmental Protection Agency (EPA) has approved the proposal for the Cooperative
Agreement Recipient (CAR) submitted in the Fiscal Year 2017 competition for Brownfields
cleanup cooperative agreements.
By awarding this cooperative agreement, the Environmental Protection Agency (EPA) has not
approved/conditionally approved the proposal for the Cooperative Agreement Recipient
(CAR) submitted in the Fiscal Year 2017 competition for Brownfields assessment cooperative
agreements. The CAR may not expend ("draw down") funds to carry out this agreement until
EPA's award official approves the workplan.
b. In implementing this agreement, the CAR shall ensure that work done with cooperative
agreement funds complies with the requirements of the CERCLA § 104(k). The CAR
shall also ensure that cleanup activities supported with cooperative agreement funding
comply with all applicable federal and state laws and regulations . The CAR must ensure
cleanups are protective of human health and the environment.
c. The CAR must consider whether it is required to conduct cleanups under a State or
Tribal response program. If the CAR chooses not to participate in a State or Tribal
response program, then the CAR is required to consult with EPA to ensure the
proposed cleanup is protective of human health and the environment.
d. If the State or Tribe does not have a promulgated Response Program, then the
CAR is required to consult with EPA to ensure protectiveness of human health
and the environment.
e. A term and condition or other legally binding provision shall be included in all agreements
entered into with the funds, or when funds awarded under this agreement are used in
combination with non-federal sources of funds, to ensure that the CAR complies with all
applicable federal and state laws and requirements. In addition to CERCLA § 104(k),
federal applicable laws and requirements include 2 CFR Part 200.
f. The CAR must comply with federal cross -cutting requirements. These requirements
include, but are not limited to, DBE requirements found at 40 CFR 33; OSHA
Worker Health & Safety Standard 29 CFR 1910.120; the Uniform Relocation Act;
National Historic Preservation Act; Endangered Species Act; and Permits required
by Section 404 of the Clean Water Act; Executive Order 11246, Equal Employment
Opportunity, and implementing regulations at 41 CFR 60-4; Contract Work Hours
and Safety Standards Act, as amended (40 USC § 327-333) the Anti -Kickback Act
(40 USC § 276c) and Section 504 of the Rehabilitation Act of 1973 as implemented
by Executive Orders 11914 and 11250.
g.
The CAR must comply with Davis -Bacon Act prevailing wage requirements and
associated U.S. Department of Labor (DOL) regulations for all construction,
alteration and repair contracts and subcontracts awarded with funds provided under
this agreement. For more detailed information on complying with Davis -Bacon
please see the Davis -Bacon Addendum to these terms and conditions.
II. SITE OWNERSHIP/RECIPIENT ELIGIBILITY REQUIREMENTS
A. Site Ownership
1. The CAR may only clean-up sites /tso%/y owns. The CAR must retain ownership of the site
throughout the period of performance. For the purposes of this agreement, the term "owns" means
fee simple title unless EPA Headquarters previously approved a different ownership arrangement.
B. Obligations for CARs Asserting a Limitation on Liability from CERCLA § 107
EPA awarded this cooperative agreement to the CAR based on information indicating that the CAR would
not use cooperative agreement funds to pay for a response cost at the site for which the CAR was
potentially liable under CERCLA § 107. If the CAR is not potentially liable based on its status as either a
Bona Fide Prospective Purchaser (BFPP), Contiguous Property Owner (CPO), or Innocent Land Owner
(ILO), the CAR must meet certain continuing obligations in order to maintain its status. If the CAR fails to
meet these obligations, EPA may disallow the costs incurred under this cooperative agreement for
cleaning up the site under CERLCA § 104(k)(7)(C). These continuing obligations include:
(1) complying with any land use restrictions established or relied on in connection with the
response action at the vessel or facility and not impeding the effectiveness or integrity of
institutional controls;
(2) taking reasonable steps with respect to hazardous substance releases;
(3) providing full cooperation, assistance, and access to persons that are authorized to
conduct response actions or natural resource restoration; and
(4) complying with information requests and administrative subpoenas and legally required
notices (applies to the criteria for BFPPs and CPOs).
Notwithstanding the CAR's continuing obligations under this agreement, the CAR is subject to the
applicable liability provisions of CERCLA governing its status as a BFPP, CPO, or ILO. CERCLA requires
additional obligations to maintain the liability limitations for BFPP , CPO, and ILO; the relevant provisions
for these obligations include §§ 101(35), 101(40), 107(b), 107(q) and 107(r).
C. Site Substitution and Cleanup Method Changes
1. The CAR must use funds provided by this agreement to clean up the brownfield site in the EPA
approved workplan. The CAR may not substitute a different brownfield site.
2. The CAR may not make substantial changes to the cleanup method described in the workplan,
including changes to the expected cleanup are necessary based on public comment or
other reasons, without prior EPA approval.
III. GENERAL COOPERATIVE AGREEMENT
ADMINISTRATIVE REQUIREMENTS
A. Terms of the Agreement
1. The term of this agreement is three years from the date of award, unless otherwise extended by
EPA at the CAR's request.
If after 18 months from the date of award, EPA determines that the CAR has not made sufficient progress
in implementing its cooperative agreement, the recipient must implement a corrective action plan
approved by the EPA Project Officer. Alternatively, EPA may terminate this agreement under 2 CFR
200.339 for material non-compliance with its terms, or with the consent of the CAR as provided at 2 CFR
200.339. For purposes of cleanup cooperative agreements, "sufficient progress in implementing a
cooperative agreement" means that an appropriate remediation plan is in place, institutional control
development, if necessary, has commenced, initial community involvement activities have taken place,
relevant state or tribal pre -cleanup requirements are being addressed and a solicitation for remediation
services has been issued.
B. Substantial Involvement
1. EPA may be substantially involved in overseeing and monitoring this cooperative agreement.
a. Substantial involvement by the EPA generally includes administrative activities by the
Project Officer such as monitoring, review of project phases, and approving
substantive terms included in professional services contracts.
b. Substantial EPA involvement may include review of financial and program
performance reports and monitoring all reporting, record-keeping, and other
program requirements.
c. EPA may waive any of the provisions in Term and Condition 111.8.1. at its own
initiative or upon request by the CAR. EPA will provide waivers in writing.
2. Effect of EPA's substantial involvement includes:
a. EPA's review of any project phase, document, or cost incurred under this
cooperative agreement, will not have any effect upon CERCLA § 128 Eligible
Response Site determinations or for rights, authorities, and actions under CERCLA
or any federal statute.
b. The CAR remains responsible for ensuring that all cleanups are protective of human
health and the environment and comply with all applicable federal and state laws.
c. The CAR remains responsible for ensuring costs are allowable under 2 CFR 200
Subpart E.
C. Cooperative Agreement Recipient Roles and Responsibilities
1. The CAR must acquire the services of a qualified environmental professional (s) to coordinate,
direct, and oversee the brownfields cleanup activities at a particular site , if they do not have such
a professional on staff.
2. The CAR is responsible for ensuring that contractors and subrecipients comply with the terms of
their agreements with the CAR, and that agreements between the CAR and subrecipients and
contractors are consistent with the terms and conditions of this agreement.
3. Subawards are defined at 2 CFR 200.92. The CAR may not subaward to for-profit organizations.
The CAR must obtain commercial services and products necessary to carry out this
agreement under competitive procurement procedures as described in 2 CFR Part 200.317
through 200.326. In addition, EPA policy encourages awarding subawards competitively
and the CAR must consider awarding subawards through competition.
4. Competency of Organizations Generating Environmental Measurement Data
In accordance with Agency Policy Directive Number FEM -2012-02. Policy to Assure the Competency of
Organizations Generating Environmental Measurement Data under Agencv-Funded Assistance
Agreements. the CAR agrees, by entering into this agreement, that it has demonstrated competency prior
to award, or alternatively, where a pre -award demonstration of competency is not practicable, the CAR
agrees to demonstrate competency prior to carrying out any activities under the award involving the
generation or use of environmental data. The CAR shall maintain competency for the duration of the
project period of this agreement and this will be documented during the annual reporting process . A copy
of the Policy is available online at htto:Ilwww.eoa.govlfem/lab comp.htm or a copy may also be requested
by contacting the EPA Project Officer for this award.
D. Quarterly Progress Reports
1. In accordance with EPA regulations 2 CFR Parts 200 and 1500 (specifically, 200.328 monitoring
and reporting program performance), the CAR agrees to submit quarterly progress reports to the
EPA Project Officer within thirty days after each reporting period. These reports shall cover work
status, work progress, difficulties encountered, preliminary data results and a statement of activity
anticipated during the subsequent reporting period, including a description of equipment,
techniques, and materials to be used or evaluated. A discussion of expenditures and financial
status for each workplan task, along with a comparison of the percentage of the project completed
to the project schedule and an explanation of significant discrepancies shall be included in the
report. The report shall also include any changes of key personnel concerned with the project.
Quarterly progress reports must clearly differentiate which activities were completed with EPA
funds provided under the Brownfield cleanup cooperative agreement, versus any other funding
source used to help accomplish project activities.
In addition, the report shall include brief information on each of the following areas: 1) a
comparison of actual accomplishments to the anticipated outputs/outcomes specified in the
cooperative agreement workplan; 2) reasons why anticipated outputs/outcomes were not met; and
3) other pertinent information, including, when appropriate, analysis and explanation of cost
overruns or high unit costs. The CAR agrees that it will notify EPA of problems, delays, or adverse
conditions which materially impair the ability to meet the outputs/outcomes specified in the
cooperative agreement workplan.
2. The CAR must submit progress report on a quarterly basis to the EPA Project Officer.
quarterly progress report must include:
a. Summary and status of approved activities performed during the reporting quarter; summary
of the performance outputs/outcomes achieved during the reporting quarter; and a description
of problems encountered or difficulties during the reporting quarter that may affect the project
schedule.
b. An update on project schedule and milestones; including an explanation of any discrepancies
from the approved workplan.
c. A budget recap summary table with the following information: current approved project
budget; costs incurred during the reporting quarter; costs incurred to date (cumulative
expenditures); and total remaining funds. The CAR should include an explanation of any
discrepancies in the budget from the approved workplan.
3. If the CAR makes any subawards under this agreement, then it becomes a pass-through entity
under the "Establishing and Managing Subaward" General Term and Condition of this agreement.
As the pass-through entity, the CAR must report to EPA on its subaward monitoring activities
under 2 CFR 200.331(d), including the following information on subawards as part of the CAR'S
quarterly performance reporting:
a. Summaries of results of reviews of financial and programmatic reports.
b. Summaries of findings from site visits and/or desk reviews to ensure effective subrecipient
performance.
c. Environmental results the subrecipient achieved.
d. Summaries of audit findings and related pass-through entity management decisions.
e. Actions the pass-through entity has taken to correct any deficiencies such as those specified
at 2 CFR 200.331(e), 2 CFR 200.207 and the 2 CFR Part 200.338 Remedies for
Noncompliance.
4. The CAR must maintain records that will enable it to report to EPA on the amount of funds
disbursed by the CAR on the specific property under this cooperative agreement.
5. In accordance with 2 CFR 200.328(d)(1), the CAR 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 approved workplan.
E. Property Profile Submission
1. The CAR must report on interim progress (i.e., cleanup started) and any final accomplishments
(i.e., cleanup completed, contaminants removed, Institution Controls, Engineering Controls) by
completing and submitting relevant portions of the Property Profile Form using the Brownfields
Program on-line reporting system, known as Assessment, Cleanup and Redevelopment
Exchange System (ACRES). The CAR must enter the data in ACRES as soon as any interim
action or final accomplishment has occurred, or within 30 days after the end of each reporting
quarter. EPA will provide the CAR with training prior to obtaining access to ACRES . The training
is required to obtain access to ACRES. The CAR must utilize the ACRES system unless approval
is obtained from the regional Project Officer to utilize and submit the Property Profile Form
instead.
F. Final Technical Cooperative Agreement Report with Environmental Results
1. In accordance with EPA regulations 2 CFR Parts 200 and 1500 (specifically, 200.328 monitoring
and reporting program performance), the CAR agrees to submit to the EPA Project Officer within
90 days after the expiration or termination of the approved project period a final technical report
on the cooperative agreement and at least one reproducible copy suitable for printing. The final
technical report shall document project activities over the entire project period and shall include
brief information on each of the following areas: 1) a comparison of actual accomplishments with
the anticipated outputs/outcomes specified in the assistance agreement workplan ; 2) reasons why
anticipated outputs/outcomes were not met; and 3) other pertinent information, including, when
appropriate, analysis and explanation of cost overruns or high unit costs. The CAR agrees that it
will notify EPA of problems, delays, or adverse conditions which materially impair the ability to
meet the outputs/outcomes specified in the cooperative agreement workplan.
G. Conflict of Interest
1. The CAR shall establish and enforce conflict of interest provisions that prevent the award of
subawards that create real or apparent personal conflicts of interest or the appearance of the
CAR's lack of impartiality. Such situations include, but are not limited to, situations in which an
employee, official, consultant, contractor, or other individual associated with the CAR (affected
party) approves or administers a subaward to a subrecipient in which the affected party has a
financial or other interest. Such a conflict of interest or appearance of lack of impartiality may
arise when:
(i) The affected party,
(ii) Any member of his immediate family,
(Hi) His or her partner, or
(iv) An organization which employs, or is about to employ,
any of the above, has a financial or other interest in the subrecipient.
Affected employees will neither solicit nor accept gratuities , favors, or anything of monetary value from
subrecipients. Recipients may set minimum rules where the financial interest is not substantial or the
gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law
or regulations, such standards of conduct will provide for penalties, sanctions, or other disciplinary
actions for violations of such standards by affected parties.
IV. FINANCIAL ADMINISTRATION REQUIREMENTS
A. Cost Share Requirement
1. CERCLA § 104(k) (9)(B)(iii) requires that the recipient of this cooperative agreement pay a cost
share (which may be in the form of a contribution of money, labor, material, or services from a
non-federal source) of at least 20 percent (i.e. 20 percent of the total federal funds awarded). The
cost share contribution must be for costs that are eligible and allowable under the cooperative
agreement and must be supported by adequate documentation.
B. Eligible Uses of the Funds for the Cooperative Agreement Recipient
1. To the extent allowable under the EPA -approved workplan, cooperative agreement funds may be
used for programmatic expenses necessary to clean up sites. Eligible programmatic expenses
include activities described in Section V. of these Terms and Conditions. In addition, eligible
programmatic expenses may include:
a. Ensuring cleanup activities at a particular site are authorized by CERCLA § 104(k)
and the EPA approved workplan;
b. Ensuring that a cleanup complies with applicable requirements under federal and
state laws, as required by CERCLA § 104(k);
c. Using a portion of the cooperative agreement funds to purchase environmental
insurance for the remediation of the site. Funds may not be used to purchase
insurance intended to provide coverage for any of the ineligible uses under Section
IV.C.; and
d. Any other eligible programmatic costs including direct costs incurred by the
recipient in reporting to EPA; procuring and managing contracts; awarding and
managing subawards to the extent allowable in Section IV.C.2.; and carrying out
community involvement pertaining to the cleanup activities.
2. Local Governments Only . No more than 10% of the funds awarded by this agreement may be
used by the CAR itself as a programmatic cost for brownfields program development and
implementation (including monitoring of health and institutional controls ). The CAR must maintain
records on funds that will be used to carry out the approved workplan to ensure compliance with
this requirement.
C. Ineligible Uses of the Funds for the Cooperative Agreement Recipient
1. Cooperative agreement funds shall not be used by the CAR for any of the following activities:
a. Pre -cleanup environmental assessment activities such as site assessment, identification, and
characterization with the exception of site monitoring activities that are reasonable and
necessary during the cleanup process, including determination of the effectiveness of a
cleanup;
b. Monitoring and data collection necessary to apply for, or comply with, environmental permits
under other federal and state laws, unless such a permit is required as a component of the
cleanup action;
c. Construction, demolition, and site development activities that are not cleanup actions
(e.g., marketing of property or construction of a new facility or addressing public or private
drinking water supplies that have deteriorated through ordinary use);
d. Job training unrelated to performing a specific cleanup at a site covered by the cooperative
agreement;
e. To pay for a penalty or fine;
f. To pay a federal cost share requirement (for example, a cost -share required by another
federal grant) unless there is specific statutory authority;
g. To pay for a response cost at a brownfields site for which the CAR is potentially liable under
CERCLA § 107;
h. To pay a cost of compliance with any federal law, excluding the cost of compliance with laws
applicable to the cleanup; and
i. Unallowable costs (e.g., lobbying and fund raising) under 2 CFR 200 Subpart E.
2. Under CERCLA § 104(k)(4)(B), administrative costs are prohibited costs under this agreement.
Prohibited administrative costs include all indirect costs incurred by the CAR under 2 CFR Part
225 (for state, local and tribal governments) or 2 CFR Part 230 (non-profit organizations), as
applicable.
a. Ineligible administrative costs include costs incurred in the form of salaries ,
benefits, contractual costs, supplies, and data processing charges, incurred to
comply with most provisions of the Uniform Administrative Requirements for Cost
Principles and Audit Requirements for Federal Awards at 2 CFR 200 and 1500.
Direct costs for cooperative agreement administration, with the exception of costs
specifically identified as eligible programmatic costs , are ineligible even if the CAR
is required to carry out the activity under the cooperative agreement. Costs incurred
to report quarterly performance to EPA under the cooperative agreement are
eligible.
b. Ineligible cooperative agreement administration costs include direct costs for:
(1) Preparation of applications for brownfields grants;
(2) Record retention required under 2 CFR 1500.6;
(3) Record-keeping associated with equipment purchases required under 2 CFR
200.313;
(4) Preparing revisions and changes in the budgets, scopes of work, program plans
and other activities required under 2 CFR 200.308;
(5) Maintaining and operating financial management systems required under 2 CFR
200.302;
(6) Preparing payment requests and handling payments under 2 CFR 200.305;
(7) Non-federal audits required under 2 CFR 200 Subpart F; and
(8) Close out under 2 CFR 200.343.
3. Cooperative agreement funds may not be used for any of the following properties:
a. Facilities listed, or proposed for listing, on the National Priorities List (NPL);
b. Facilities subject to unilateral administrative orders , court orders, and administrative orders on
consent or judicial consent decree issued to or entered by parties under CERCLA;
c. Facilities that are subject to the jurisdiction , custody or control of the United States
government except for land held in trust by the United States government for an Indian tribe;
or
d. A site excluded from the definition of a brownfields site for which EPA has not made a
property -specific funding determi nation.
D. Interest -Bearing Accounts and Program Income
1. The CAR must deposit advances of cooperative agreement funds and program income (i.e. fees)
in an interest bearing account.
a. For interest earned on advances, CARs are subject to the provisions of 2 CFR
200.305(b)(7)(ii) relating to remitting interest on advances to EPA on a quarterly
basis.
b. Any program income earned by the CAR will be added to the funds EPA has
committed to this agreement and used only for eligible and allowable costs under
the agreement as provided in 2 CFR 200.307 and 2 CFR 1500.7, as applicable.
c. Interest earned on program income is considered additional program income.
d. The CAR must disburse program income (including interest earned on program
income) before requesting additional payments from EPA as required by 2 CFR
1500.8.
V. CLEANUP ENVIRONMENTAL REQUIREMENTS
A. Authorized Cleanup Activities
The CAR shall prepare an analysis of brownfields cleanup alternatives (ABCA) or equivalent state
Brownfields program document which will include information about the site and contamination issues
(i.e., exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws;
alternatives considered; and the proposed cleanup. The evaluation of alternatives must include
effectiveness, ability to implement, and the cost of the response proposed. The evaluation of alternatives
must also consider the resilience of the remedial options in light of reasonably foreseeable changing
climate conditions (e.g., sea level rise, increased frequency and intensity of flooding and/or extreme
weather events, etc.). The alternatives may additionally consider the degree to which they reduce
greenhouse gas discharges, reduce energy use or employ alternative energy sources, reduce volume of
wastewater generated/disposed, reduce volume of materials taken to landfills, and recycle and re -use
materials generated during the cleanup process to the maximum extent practicable. The evaluation will
include an analysis of reasonable alternatives including no action . The cleanup method chosen must be
based on this analysis.
2. Prior to conducting or engaging in any on-site activity with the potential to impact historic
properties (such as invasive sampling or cleanup), the CAR shall consult with EPA regarding
potential applicability of the National Historic Preservation Act (NHPA) and, if applicable, shall
assist EPA in complying with any requirements of the NHPA and implementing regulations.
B. Quality Assurance (QA) Requirements
1. If environmental data are to be collected as part of the brownfields cleanup (e.g., cleanup
verification sampling, post -cleanup confirmation sampling), the CAR shall comply with 2 CFR
1500.11 requirements to develop and implement quality assurance practices sufficient to produce
data adequate to meet project objectives and to minimize data loss. State law may impose
additional QA requirements.
C. Community Relations and Public Involvement in Cleanup Activities
1. All cleanup activities require a site-specific community relations plan that includes providing
reasonable notice, opportunity for involvement, response to comments, and administrative
records that are available to the public.
2. The CAR agrees to clearly reference EPA investments in the project during all phases of
community outreach outlined in the EPA -approved workplan, which may include the development
of any post -project summary or success materials that highlight achievements to which this
project contributed. Specifically:
a. If any document, fact sheet, and/or web material are developed as part of this cooperative
agreement, then they shall include the following statement: "Though this project has been
funded, wholly or in part, by EPA, the contents of this document do not necessarily reflect the
views and policies of EPA."
b. If a sign is developed, as part of a project funded by this cooperative agreement, then the sign
shall include either a statement (e.g., this project has been funded, wholly or in part, by
EPA) and/or EPA's logo acknowledging that EPA is a source of funding for the project.
The EPA logo may be used on project signage when the sign can be placed in a
visible location with direct linkage to site activities . Use of the EPA logo must follow
the sign specifications available at: htto://www.ena.aovload/tc.htm.
3. The CAR agrees to notify the EPA Project Officer listed in this award document of public or media
events publicizing the accomplishment of significant events related to construction and /or site
reuse projects as a result of this agreement, and provide the opportunity for attendance and
participation by federal representatives with at least ten (10) working days' notice.
4. To increase public awareness of projects serving communities where English is
not the predominant language, recipients are encouraged to include in their outreach
strategies communication in non-English languages. Translation costs for this
purpose are allowable, provided the costs are reasonable.
D. Administrative Record
1. The CAR shall establish an administrative record that contains the documents that form the basis
for the selection of a cleanup plan. Documents in the administrative record shall include an ABCA
with reasonable alternatives including no action; site investigation reports; the cleanup plan;
cleanup standards used; responses to public comments; and verification that shows that cleanup
is complete. The CAR shall keep the administrative record available at a location convenient to
the public and make it available for inspection. The administrative records must be retained for
three years after the termination of the closeout agreement subject to any requirements for
maintaining records of site cleanups ongoing at the time of termination.
E. Implementation of Cleanup Activities
1. The CAR shall ensure the adequacy of each cleanup in protecting human health and the
environment as it is implemented.
2. If the CAR is unable or unwilling to complete the cleanup, the CAR shall ensure that the site is
secure. The CAR shall notify the appropriate state agency and the EPA to ensure an orderly
transition should additional activities become necessary.
F. Completion of Cleanup Activities
1. The CAR shall ensure that the successful completion of a cleanup is properly documented . This
must be done through a final report or letter from a qualified environmental professional , or other
documentation provided by a State or Tribe that shows cleanup is complete. This documentation
needs to be included as part of the administrative record.
VI. OTHER REQUIREMENTS
A. Inclusion of Additional Terms and Conditions in Cleanup Documents
1. The CAR shall meet the cleanup and other program requirements of the cleanup cooperative
agreement including:
a. In accordance with 2 CFR 1500.11, the CAR shall maintain records for a minimum
of three years following completion of the cleanup financed all or in part with
cleanup cooperative agreement funds. The CAR shall provide access to records
relating to cleanups supported with cleanup cooperative agreement funds to
authorized representatives of the Federal government.
b. The CAR has an ongoing obligation to advise EPA if they are assessed any
penalties resulting from environmental non-compliance at the site subject to this
agreement.
VII. PAYMENT AND CLOSEOUT
For the purposes of these terms and conditions, the following definitions apply: "payment" is the EPA's
transfer of funds to the CAR; "close out" refers to the process that EPA follows to ensure that all
administrative actions and work required under the cooperative agreement have been completed .
A. Payment Schedule
EPA will pay the CAR on a progress payment basis, provided the recipient can document that it
incurred costs that require disbursements equal to the amount of the progress payment.
B. Schedule for Closeout
1. Closeout will be conducted in accordance with 2 CFR 200.343. EPA will close out the award when
it determines that all applicable administrative actions and all required work of the under the cooperative
agreement have been completed.
2. The CAR, within 90 days after the expiration or termination of the grant, must submit all financial,
performance, and other reports required as a condition of the cooperative agreement 2 CFR Part 200.
a. The CAR must submit the following documentation:
(1) The Final Technical Cooperative Agreement Report as described in Section III .F. of
these Terms and Conditions.
(2) A Final Federal Financial Report (FFR - SF425). Submitted to:
US EPA, Las Vegas Finance Center
4220 S. Maryland Pkwy, Bldg C, Rm 503
Las Vegas, NV 89119
httos://www.eaa.aov/financial/arants
(3) A Final MBE/WBE Report (EPA Form 5700-52A). Submitted to the regional
office.
b. The CAR must ensure that all appropriate data has been entered into ACRES or all Property
Profile Forms are submitted to the Region.
c. The CAR must immediately refund to EPA any balance of unobligated
(unencumbered) cash advanced that is not authorized to be retained for
use on other cooperative agreements.
Davis Bacon Term and Condition
For
Hazardous Waste Cleanup Cooperative Aareements to Governmental
Entities
DAVIS BACON PREVAILING WAGE TERM AND CONDITION
The following terms and conditions specify how Cooperative Agreement Recipients (CARs) will assist
EPA in meeting its Davis -Bacon (DB) responsibilities when DB applies to EPA awards of financial
assistance under any statute which makes DB applicable to EPA financial assistance . If a CAR has
questions regarding when DB applies, obtaining the correct DB wage determinations, DB contract
provisions, or DB compliance monitoring, they should contact the regional Brownfields Coordinator or
Project Officer.
1. Applicability of the Davis Bacon Prevailing Wage Requirements
For the purposes of this term and condition, EPA has determined that all construction, alteration and
repair activity involving the remediation of hazardous substances, including excavation and removal of
hazardous substances, construction of caps, barriers, structures which house treatment equipment, and
abatement of contamination in buildings, is subject to DB. If CAR encounters a unique situation at a site
that presents uncertainties regarding DB applicability, the CAR must discuss the situation with EPA before
authorizing work on that site.
2. Obtaining Waae Determinations
(a) Unless otherwise instructed by EPA on a project specific basis , the CAR shall use the following
DOL General Wage Classifications for the locality in which the construction activity subject to DB
will take place. CARs must obtain wage determinations for specific localities at www.wdol.aov.
(i) When soliciting competitive contracts or issuing task orders , work assignments or similar
instruments to existing contractors (ordering instruments) for, the excavation and removal
of hazardous substances, construction of caps, barriers, and similar activities that do not
involve construction of buildings CAR shall use the "Heavy Construction" Classification .
(ii) When soliciting competitive contracts or issuing ordering instruments for the construction
of structures which house treatment equipment, and abatement of contamination in
buildings (other than residential structures less than 4 stories in height) CAR shall use
"Building Construction" classification.
When soliciting competitive contracts or issuing ordering instruments for the abatement of contamination
in residential structures less than 4 stories in height the CAR shall use "Residential Construction"
classification.
Note: CARs must discuss unique situations that may not be covered by the General Wage Classifications
described above with EPA. If, based on discussions with a CAR, EPA determines that DB applies to a
unique situation the Agency will advise the CAR which General Wage Classification to use based on the
nature of the construction activity at the site.
(b) CARs shall obtain the wage determination for the locality in which a Brownfields cleanup activity
subject to DB will take place priorto issuing requests for bids, proposals, quotes or other methods for
soliciting contracts (solicitation) for activities subject to DB. These wage determinations shall be
incorporated into solicitations and any subsequent contracts. Prime contracts must contain a provision
requiring that subcontractors follow the wage determination incorporated into the prime contract .
(i) While the solicitation remains open, the CAR shall monitor www.wdol.aov on a weekly
basis to ensure that the wage determination contained in the solicitation remains current.
The CAR shall amend the solicitation if DOL issues a modification more than 10 days
prior to the closing date (i.e. bid opening) for the solicitation. If DOL modifies or
supersedes the applicable wage determination less than 10 days prior to the
closing date, the CAR may request a finding from EPA that there is not a reasonable
time to notify interested contractors of the modification of the wage determination.
EPA will provide a report of the Agency's finding to the CAR.
(ii) If the CAR does not award the contract within 90 days of the closure of the solicitation,
any modifications or determination contained in the solicitation shall be effective
unless EPA, at the request of the CAR, obtains an extension of the 90 day period from DOL
pursuant to 29 CFR 1.6(c)(3)(iv). The CAR shall monitor www.wdol.aov on a weekly
basis if it does not award the contract within 90 days of closure of the solicitation to
ensure that wage determinations contained in the solicitation remain current.
(iii) If the CAR carries out Brownfield cleanup activity subject to DB by issuing a task order ,
work assignment or similar instrument to an existing contractor (ordering instrument)
rather than by publishing a solicitation, the CAR shall insert the appropriate
DOL wage determination from www.wdol.aov into the ordering instrument.
(c) CARs shall review all subcontracts subject to DB entered into by prime contractors to verify that the
prime contractor has required its subcontractors to include the applicable wage determinations .
(d) As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to a CAR's
contract after the award of a contract or the issuance of an ordering instrument if DOL determines that the
CAR has failed to incorporate a wage determination or has used a wage determination that clearly does
not apply to the contract or ordering instrument. If this occurs, the CAR shall either terminate the contract
or ordering instrument and issue a revised solicitation or ordering instrument or incorporate DOL's wage
determination retroactive to the beginning of the contract or ordering instrument by change order. The
CAR's contractor must be compensated for any increases in wages resulting from the use of DOL's
revised wage determination.
3. Contract and Subcontract Provisions
(a) The CAR shall insert in full in any contract in excess of $2,000 which is entered into for the actual
construction, alteration and/or repair, including painting and decorating, of a public building or public work,
or building or work financed in whole or in part from Federal funds or in accordance with guarantees of a
Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a
loan, grant or annual contribution (except where a different meaning is expressly indicated ), and which is
subject to DB, the following labor standards provisions.
(1) Minimum wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally
and not less often than once a week, and without subsequent deduction or rebate on any account (except
such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash
equivalents thereof) due at time of payment computed at rates not less than those contained in the
applicable wage determination of the Secretary of Labor which the CAR obtained under the procedures
specified in Item 2, above, and made a part hereof, regardless of any contractual relationship which may
be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of
the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions
made or costs incurred for more than a weekly period (but not less often than quarterly) under plans,
funds, or programs which cover the particular weekly period, are deemed to be constructively made or
incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate
and fringe benefits on the wage determination for the classification of work actually performed, without
regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked
therein: Provided that the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination (including any additional classification
and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis -Bacon poster
(WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a
prominent and accessible place where it can be easily seen by the workers . CARs shall require that the
contractor and subcontractors include the name of the CAR employee or official responsible for monitoring
compliance with DB on the poster.
(ii)(A) The CAR, on behalf of EPA, shall require that contracts and subcontracts entered into under this
agreement provide that any class of laborers or mechanics, including helpers, which is not listed in the
wage determination and which is to be employed under the contract shall be classified in conformance
with the wage determination. The EPA Award Official shall approve an additional classification and wage
rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the
wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or
their representatives, and the CAR agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of the action taken shall be sent by the CAR to
the EPA Award Official. The Award Official will transmit the report, to the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210.
The Administrator, or an authorized representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the award official or will notify the award
official within the 30 -day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or their
representatives, and the CAR do not agree on the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate), the award official shall refer the questions,
including the views of all interested parties and the recommendation of the award official , to the
Administrator for determination. The Administrator, or an authorized representative, will issue a
determination within 30 days of receipt and so advise the contracting officer or will notify the Award
Official within the 30 -day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under
this contract from the first day on which work is performed in the classification .
(Hi) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics
includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the
benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated
in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has
found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act
have been met. The Secretary of Labor may require the contractor to set aside in a separate account
assets for the meeting of obligations under the plan or program.
(1) Withholding. The CAR, upon written request of the Award Official or an authorized representative of
the Department of Labor, shall withhold or cause to withhold from the contractor under this contract or any
other Federal contract with the same prime contractor, or any other federally -assisted contract subject to
Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the
accrued payments or advances as may be considered necessary to pay laborers and mechanics ,
including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full
amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including
any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages
required by the contract, EPA may, after written notice to the contractor, or CAR take such action as may
be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such
violations have ceased.
(2) Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of
the work and preserved for a period of three years thereafter for all laborers and mechanics working at the
site of the work. Such records shall contain the name, address, and social security number of each such
worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or
costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section
1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and
actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages
of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits
under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable, that the plan or
program is financially responsible, and that the plan or program has been communicated in writing to the
laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred
in providing such benefits. Contractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the
applicable programs.
(ii)(A) The contractor shall submit weekly for each week in which any contract work is performed a copy of
all payrolls to the CAR who will maintain the records on behalf of EPA. The payrolls submitted shall set
out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i),
except that full social security numbers and home addresses shall not be included on weekly transmittals .
Instead the payrolls shall only need to include an individually identifying number for each employee (e.g.,
the last four digits of the employee's social security number). The required weekly payroll information may
be submitted in any form desired. Optional Form WH -347 is available for this purpose from the Wage and
Hour Division Web site at httos://www.dol.aov/whd/oroarams/dbra/wh347.htm or its successor site. The
prime contractor is responsible for the submission of copies of payrolls by all subcontractors . Contractors
and subcontractors shall maintain the full social security number and current address of each covered
worker, and shall provide them upon request to the CAR for transmission to the EPA, if requested by EPA,
the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation
or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime
contractor to require a subcontractor to provide addresses and social security numbers to the prime
contractor for its own records, without weekly submission to the CAR.
(B) Each payroll submitted to the CAR shall be accompanied by a "Statement of Compliance," signed by
the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following :
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5
(a)(3)(ii) of Regulations, 29 CFR Part 5, the appropriate information is being maintained under § 5.5
(a)(3)(i) of Regulations, 29 CFR Part 5, and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the
contract during the payroll period has been paid the full weekly wages earned , without rebate, either
directly or indirectly, and that no deductions have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe
benefits or cash equivalents for the classification of work performed , as specified in the applicable wage
determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional
Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by
paragraph (a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil
or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(Hi) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this
section available for inspection, copying, or transcription by authorized representatives of the EPA or the
Department of Labor, and shall permit such representatives to interview employees during working hours
on the job. If the contractor or subcontractor fails to submit the required records or to make them available,
EPA may, after written notice to the contractor, CAR, sponsor, applicant, or owner, take such action as
may be necessary to cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such records available may
be grounds for debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and Trainees
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered in a bona fide apprenticeship
program registered with the U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized
by the Office, or if a person is employed in his or her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually registered in the program, but who
has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State
Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be
greater than the ratio permitted to the contractor as to the entire work force under the registered program.
Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as
stated above, shall be paid not less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any apprentice performing work on the job site in
excess of the ratio permitted under the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. Where a contractor is performing
construction on a project in a locality other than that in which its program is registered , the ratios and
wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or
subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the
rate specified in the registered program for the apprentice's level of progress, expressed as a percentage
of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid
fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed
on the wage determination for the applicable classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification , fringes shall be paid in accordance with that
determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the
contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate
for the work performed until an acceptable program is approved.
(H) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually
registered in a program which has received prior approval , evidenced by formal certification by the U.S.
Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the
job site shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for
the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the
applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of
the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour
Division determines that there is an apprenticeship program associated with the corresponding
journeyman wage rate on the wage determination which provides for less than full fringe benefits for
apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in
a training plan approved by the Employment and Training Administration shall be paid not less than the
applicable wage rate on the wage determination for the classification of work actually performed . In
addition, any trainee performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage determination for the work
actually performed. In the event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program is approved.
(Hi) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part
shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as
amended, and 29 CFR Part 30.
(5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29
CFR Part 3, which are incorporated by reference in this contract.
(6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in
29 CFR 5.5(a)(1) through (10) and such other clauses as the EPA may by appropriate instructions require,
and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts . The
prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor
with all the contract clauses in this term and condition.
(7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR
5.12.
(8) Compliance with Davis -Bacon and Related Act requirements. All rulings and interpretations of the
Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference
in this contract.
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this
contract shall not be subject to the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and
7. Disputes within the meaning of this clause include disputes between the contractor (or any of its
subcontractors), the CAR, borrower or subrecipent and EPA, the U.S. Department of Labor, or the
employees or their representatives.
(10) Certification of eligibility.
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or
firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government
contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(H) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(Hi) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
4. Contract Provisions for Contracts in Excess of $100.000
(a) Contract Work Hours and Safety Standards Act. The CAR shall insert the following clauses set forth in
paragraphs (a)(1), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000
and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These
clauses shall be inserted in addition to the clauses required by Item 3, above or 29 CFR 4.6. As used in
this paragraph, the terms laborers and mechanics include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work
which may require or involve the employment of laborers or mechanics shall require or permit any such
laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of
forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such
workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set
forth in paragraph (a)(1) of this section the contractor and any subcontractor responsible therefor shall be
liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or a territory, to such District or
to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to
each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause
set forth in paragraph (a)(1) of this section, in the sum of $10 for each calendar day on which such
individual was required or permitted to work in excess of the standard workweek of forty hours without
payment of the overtime wages required by the clause set forth in paragraph (a)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The CAR, upon written request of the Award
Official or an authorized representative of the Department of Labor, shall withhold or cause to withhold
from any moneys payable on account of work performed by the contractor or subcontractor under any
such contract or any other Federal contract with the same prime contractor, or any other federally -assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime
contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or
subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph
(a)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in
paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a)(1) through (4) of this
section.
(b) In addition to the clauses contained in Item 3, above, in any contract subject only to the Contract Work
Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the CAR shall
insert a clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll
records during the course of the work and shall preserve them for a period of three years from the
completion of the contract for all laborers and mechanics, including guards and watchmen, working on the
contract. Such records shall contain the name and address of each such employee, social security
number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked,
deductions made, and actual wages paid. Further, the CAR shall insert in any such contract a clause
providing that the records to be maintained under this paragraph shall be made available by the contractor
or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the
name of agency) and the Department of Labor, and the contractor or subcontractor will permit such
representatives to interview employees during working hours on the job.
5. Compliance Verification
(a) The CAR shall periodically interview a sufficient number of employees entitled to DB prevailing wages
(covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates.
As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The CAR must use
Standard Form 1445 or equivalent documentation to memorialize the interviews. Copies of the SF 1445
are available from EPA on request.
(b) The CAR shall establish and follow an interview schedule based on its assessment of the risks of
noncompliance with DB posed by contractors or subcontractors and the duration of the contract or
subcontract. At a minimum, the CAR must conduct interviews with a representative group of covered
employees within two weeks of each contractor or subcontractor's submission of its initial weekly payroll
data and two weeks prior to the estimated completion date for the contract or subcontract. CARs must
conduct more frequent interviews if the initial interviews or other information indicates that there is a risk
that the contractor or subcontractor is not complying with DB. CARs shall immediately conduct necessary
interviews in response to an alleged violation of the prevailing wage requirements . All interviews shall be
conducted in confidence.
(c) The CAR shall periodically conduct spot checks of a representative sample of weekly payroll data to
verify that contractors or subcontractors are paying the appropriate wage rates. The CAR shall establish
and follow a spot check schedule based on its assessment of the risks of noncompliance with DB posed
by contractors or subcontractors and the duration of the contract or subcontract. At a minimum, the CAR
must spot check payroll data within two weeks of each contractor or subcontractor's submission of its
initial payroll data and two weeks prior to the completion date the contract or subcontract. CARS must
conduct more frequent spot checks if the initial spot check or other information indicates that there is a risk
that the contractor or subcontractor is not complying with DB. In addition, during the examinations the
CAR shall verify evidence of fringe benefit plans and payments thereunder by contractors and
subcontractors who claim credit for fringe benefit contributions.
(d) The CAR shall periodically review contractors and subcontractors use of apprentices and trainees to
verify registration and certification with respect to apprenticeship and training programs approved by
either the U.S Department of Labor or a state, as appropriate, and that contractors and subcontractors are
not using disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be
conducted in accordance with the schedules for spot checks and interviews described in Item 5(b) and (c)
above.
(e) CARs must immediately report potential violations of the DB prevailing wage requirements to the EPA
DB contact listed above and to the appropriate DOL Wage and Hour District Office listed at
httos://www.dol.aov/whd/america2.htm.