Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance

Guidance To Regions For

Implementing The LUST Provision Of The

American Recovery And

Reinvestment Act Of 2009

U.S. Environmental Protection Agency

Office of Underground Storage Tanks

Washington, D.C. 20460

www.epa.gov/oust

EPA-510-R-09-003

June 2009
Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance

Contents

Overview Of The LUST Provision Of The American Recovery And 

Reinvestment Act Guidance ................................................................... 1

Why Is EPA Issuing This Guidance? ................................................................ 1 

What Is In This Guidance? .............................................................................. 1

When Does This Guidance Take Effect? ......................................................... 2 

Requirements Of The LUST Provision Of The Recovery Act ............................ 3

How Does LUST Recovery Act Funding Differ From Annual LUST Funding? . 3

Who Is Eligible For LUST Recovery Act Assistance Agreements? .................. 3 

What Is The Available Funding? ..................................................................... 3

What Activities Are Eligible? ............................................................................ 3 

What Are The Funding Priorities? .................................................................... 4 

What Activities Are Ineligible? .......................................................................... 4 

How Will EPA Distribute The LUST Recovery Act Funds? ............................... 5 

Will A State Have To Cost Share? .................................................................. 5 

How Long May States Use The Funds? .......................................................... 6 

Does Cost Recovery Apply? ............................................................................ 6

 

State Recovery Act Reporting Requirements .................................................... 7 

What Are The LUST Recovery Act Program Performance Measures? ............ 7 

How Are These Terms Defined? ...................................................................... 7 

When Must States Report Their LUST Recovery Act Program

 Performance Measures Results? ............................................................. 8 

Are There Other State Recovery Act Reporting Requirements? .................. 8

Where Must States Report These Results? ............................................ 8

What Are The Data Quality Requirements For States? .................................. 9

What Are The Recordkeeping Requirements? ................................................. 9 

Assistance Agreement Provisions .................................................................... 10 

Is There EPA-Wide Assistance Agreement Guidance? ................................. 10 

What LUST Recovery Act Specific Terms And Conditions Must Appear

 In The Assistance Agreements With States? ........................................ 10

What Other Terms And Conditions Apply? .............................................. 11

 Section 1512 Reporting ................................................................... 12

 Davis Bacon Act ........................................................................... 12

 Infrastructure ................................................................................. 13

 Buy American ................................................................................ 13

Is A LUST Recovery Act Assistance Agreement Eligible For

 Performance Partnership Agreements? ....................................................... 14 

Is There A Model Funding Recommendation? ................................................ 14

What Accounting Information Should Regions Use In IGMS? ..................... 14

What Are Other Assistance Agreement Details? ............................................. 15
Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance

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Overview Of The LUST Provision Of The

American Recovery And Reinvestment Act Guidance

Why Is EPA Issuing This Guidance? 

The U.S. Environmental Protection Agency (EPA), in consultation with states1, 

developed this guidance in response to the American Recovery and Reinvestment Act 

of 2009 (hereinafter “Recovery Act”). This program guidance will assist EPA Regional 

underground storage tank (UST) programs to negotiate and approve state leaking 

underground storage tank (LUST) Recovery Act assistance agreements and work with 

their EPA Regional grants management offices to expeditiously award funding to states. 

The Recovery Act provides a supplemental appropriation of $200 million from the 

LUST Trust Fund (Recovery Act funding) for LUST cleanup activities authorized by 

section 9003(h) of the Solid Waste Disposal Act (SWDA). On February 18, 20092 and 

April 3, 2009,3 the Office of Management and Budget (OMB) issued detailed guidances 

to agencies on implementing the Recovery Act. OMB plans to issue additional 

guidance that will assist in the implementation of Recovery Act activities. All recipients 

will need to adhere to the requirements contained in future OMB Recovery Act 

guidance. The Recovery Act carries with it a historic level of transparency, oversight, 

and accountability that will help ensure taxpayer dollars are spent wisely and Americans 

will see results for their investment. 

This guidance applies to Recovery Act funded assistance agreements only, not 

agreements funded through annual LUST appropriations. These LUST Recovery Act 

assistance agreements are formula grants and are exempt from competition.4 Unless 

superseded by this guidance, the provisions in existing LUST Trust Fund guidance, 

policies, and practices also apply to the Recovery Act funded assistance agreements. 

What Is In This Guidance? 

This guidance describes what a state’s assistance agreement must contain in 

order for a state to comply with the requirements for LUST Recovery Act funding. This 

guidance includes: funding uses and priorities; eligible applicants and activities; 

ineligible activities; cost recovery; recipient reporting requirements; application of EPAwide guidance to the LUST program; and LUST-specific terms and conditions.

 1

 States as referenced throughout this document also include territories as described in the definition of “state” in 

the Solid Waste Disposal Act.

2 See www.recovery.gov/files/Initial%20Recovery%20Act%20Implementing%20Guidance.pdf . 3 See www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-15.pdf . 4 See www.epa.gov/ogd/competition/5700_5A1.pdf, EPA Order 5700.5A1, 6.c.1 – Exempt from Competition 

Policy. 
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When Does This Guidance Take Effect?

This guidance is effective immediately. EPA must obligate LUST Recovery Act 

resources by awarding assistance agreements, contracts, or interagency agreements 

by September 30, 2010. However, for the purpose of job creation/retention, EPA 

anticipates working with states to obligate funds in LUST Recovery Act assistance 

agreements by July 17, 2009.
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Requirements Of The LUST Provision Of The Recovery Act

How Does LUST Recovery Act Funding Differ From Annual LUST Funding?

There are five main legal differences in the LUST Recovery Act funds. Each of 

these items is addressed in more detail in later sections of this guidance.

Cost Share – LUST Recovery Act funded assistance agreements are exempt from the 

10 percent cost share required by SWDA section 9003(h)(7)(B). 

Wage Rate Requirements – Certain LUST expenditures are subject to the prevailing 

wage requirements as determined by the Department of Labor under the Davis Bacon 

Act.5

Buy American – Certain LUST expenditures are subject to the Buy American provision 

contained in section 1605 of the General Provisions of the Recovery Act.

Time Limits On Obligations And Expenditures – Unlike assistance agreements 

funded with EPA’s annual no year LUST appropriations, Recovery Act appropriations 

must be obligated by EPA and expended by states within specified periods of time. 

Unique Reporting And Tracking – There are unique reporting and funds tracking 

requirements for Recovery Act funded assistance agreements. 

Who Is Eligible For LUST Recovery Act Assistance Agreements?

These assistance agreements are only available to states that are eligible for 

Recovery Act funding. The regulations that govern the award and administration of 

LUST Recovery Act assistance agreements are the “Uniform Administrative 

Requirements for Grants and Cooperative Agreements to State and Local 

Governments” set forth at 40 CFR Part 31, 

http://www.access.gpo.gov/nara/cfr/waisidx_00/40cfr31_00.html. 

What Is The Available Funding?

Of the $200,000,000 FY 2009 LUST Recovery Act appropriation, EPA will 

obligate to states $190,700,000, or 95 percent, through assistance agreements.

What Activities Are Eligible?

The Recovery Act neither expands nor limits eligible uses of LUST funds under 

section 9003(h)(7) assistance agreements, with the exception of prohibiting Recovery 

 5 See www.dol.gov/ESA/WHD/contracts/dbra.htm .
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Act funds from uses relating to casinos and other gambling establishments, aquariums, 

zoos, golf courses, or swimming pools. The LUST Recovery Act assistance 

agreements will be awarded for corrective action activities, those that are traditionally 

funded by LUST cleanup dollars. The applicable provisions, set forth in RCRA Subtitle 

I, section 9003(h) and identified in OSWER Directive 9650.10A, "LUST Trust Fund 

Cooperative Agreement Guidelines", apply to states receiving funds under this program; 

see http://www.epa.gov/OUST/directiv/d965010a.htm . LUST Recovery Act funding may 

be used at a LUST site even if earlier stages of assessment or cleanup were funded 

from other sources.

What Are The Funding Priorities?

In accordance with section 9003(h)(3), states must give priority to eligible LUST 

sites that pose the greatest threat to human health and the environment. EPA wants to 

ensure these funds are used effectively to achieve the program’s goal of LUST 

cleanups, while at the same time achieving the Recovery Act goals of maximizing job 

creation/retention and providing economic, health, and environmental benefits to the 

citizens of the United States and its territories. States may decide which sites best meet 

these program priorities provided their determinations are consistent with the scope of 

work and terms and conditions of their LUST Recovery Act assistance agreements. 

The assistance agreements will fund several activities, such as: 

• Shovel-ready projects (sites ready for assessment and cleanup) that are typically 

orphaned or abandoned sites, where the owners/operators of the sites are 

unknown or unable to pay, and 

• Staff management and oversight activities that will leverage additional cleanups. 

What Activities Are Ineligible?

As with annual LUST appropriations, LUST Recovery Act funds may not be used for 

certain activities, such as:

• Leak prevention activities authorized by the Energy Policy Act of 2005, Title XV, 

Subtitle B, described in the “Office of Underground Storage Tanks (OUST) 

Program Guidance for FY 2008 Prevention Funding for Assistance Agreements 

Awarded under the Leaking Underground Storage Tank (LUST) Trust Fund 

Program,” from Cliff Rothenstein, Director to UST/LUST Regional Division 

Directors, Regions I – X, dated May 8, 2008

• Redevelopment activities (e.g., construction of a new facility, marketing, or 

purchase of property)

• Replacement and repair of leaking tanks
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• Removal of tanks, unless the tank removals are necessary to successfully 

undertake or complete assessment or cleanup activities6

• Costs that are unallowable under OMB Circular A-87 (2 CFR Part 225)7

• Matching any other federal funds without specific statutory authority; see 40 CFR 

31.24, www.access.gpo.gov/nara/cfr/waisidx_00/40cfr31_00.html

How Will EPA Distribute The LUST Recovery Act Funds?

LUST Recovery Act funding is awarded non-competitively under section 

9003(h)(7) of the Solid Waste Disposal Act and is subject to an allocation process 

developed by EPA, which provides at least 80 percent of the LUST Trust Funds to 

states. EPA will award new assistance agreements for LUST Recovery Act funding 

rather than amending LUST corrective action assistance agreements funded with 

annual LUST appropriations. The Agency has established a process for allocating 

funds to states based on such factors as cumulative number of confirmed UST 

releases, number of federally regulated petroleum tanks, cleanups initiated, cleanups 

completed, percentage of population using groundwater for drinking water, and number 

of states with approved UST programs. 

While Regions maintain some discretion in reallocating funds among states in 

their Region, the Region may only reduce a state's allotment of LUST Recovery Act 

funds if:

• The Region determines a state cannot effectively and expeditiously use the full 

amount allotted that state to achieve LUST program and Recovery Act 

objectives;

• The Region consults with OUST; and

• The Region documents these decisions and maintains that documentation for 

future review. 

Will A State Have To Cost Share?

No. As provided in Title VII of the Recovery Act, “Leaking Underground Storage 

Tank Trust Fund Program,” “none of these funds shall be subject to cost share 

requirements under section 9003(h)(7)(B) of such Act.” 

 6 October 15, 1999 memorandum from Sammy Ng, Acting Director, Office of Underground Storage Tanks, see 

www.epa.gov/oust/rags/ng101599.pdf. 7 See www.whitehouse.gov/omb/circulars/a087/a087-all.html. 
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How Long May States Use The Funds?

The conditions of the assistance agreement will determine the date by which 

states must expend resources. The terms of the assistance agreement shall be 

determined at the time of award by the Regions. OUST recommends assistance 

agreements be awarded on a two and one-half year performance and budget period 

(e.g., 4/1/2009 to 9/30/2011). The budget and performance period may be extended 

through no-cost extensions to allow work to be performed on eligible sites. Legally, the 

funds remain available for expenditure until September 30, 2017. However, in the spirit 

of rapid job creation, Regions should consider no-cost extensions only on a case-bycase basis. Regions may only grant extensions after consultation with OUST. To 

receive an extension, a state must submit adequate justification. Follow the appropriate 

provisions in 40 CFR Part 31. 

Does Cost Recovery Apply?

It does apply. For cost recovery, OSWER Directive 9610.10A, “Cost Recovery 

Policy for the Leaking Underground Storage Tank Trust Fund,” May 24, 1994, is fully 

applicable to these assistance agreements; see 

www.epa.gov/swerust1/directiv/d961010a.htm . 

If states cost recover Recovery Act funds while their Recovery Act assistance 

agreement is still in effect, the funds become program income and are to be added to 

the Recovery Act agreement and used under the same terms and conditions as the 

Recovery Act assistance agreement. Per 40 CFR 31.21(f)(2) states must expend 

program income before requesting additional Recovery Act funds from EPA. Per 40 

CFR 31.50(c)(2) Regions may authorize states to retain any accrued program income 

that remains unexpended when their Recovery Act assistance agreement is closed for 

use under their existing LUST assistance agreement. If states cost recover Recovery 

Act funds after their Recovery Act assistance agreement is closed, they must use the 

recovered funds for activities authorized in their non-Recovery Act LUST program 

cleanup assistance agreement. 
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State Recovery Act Reporting Requirements

What Are The LUST Recovery Act Program Performance Measures?

There are eight LUST Recovery Act program performance measures. The 

definitions of the performance measures are listed below. 

Site Assessments Initiated

• Direct Site Assessments Initiated

• Indirect Site Assessments Initiated

Site Assessments Completed

• Direct Site Assessments Completed

• Indirect Site Assessments Completed 

Cleanups Initiated

• Direct Cleanups Initiated 

• Indirect Cleanups Initiated

Cleanups Completed 

• Direct Cleanups Completed 

• Indirect Cleanups Completed

How Are These Terms Defined?

• Direct – means a state funded the site work (e.g., drilling, lab work, corrective 

action plan development) with LUST Recovery Act funds, regardless of the 

funding source for the oversight. Typically, states have contractors perform such 

work, although some states may conduct these activities with their own 

staff/equipment. Note: To avoid double counting, any activity (e.g., site 

assessment) counted as direct work should not be counted as indirect work. 

• Indirect – means a state used LUST Recovery Act funds to pay for the oversight 

of the site work, but the site work itself was not funded with LUST Recovery Act 

funds. Oversight activities might include enforcement actions to compel the tank 

owner to perform work or the review of corrective action reports. Note: To avoid 

double counting, any activity (e.g., site assessment) counted as indirect work 

should not be counted as direct work. 
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• Site Assessments Initiated/Completed – the initiation and then the completion 

of a determination of the extent and location of soil and groundwater 

contaminated by a release from a federally regulated petroleum UST, as required 

by state site assessment rules and/or guidelines. Note: If multiple tiers of site 

assessment are needed/performed at a given site, a state should only report the 

assessment once the final tier is completed and may only count these activities 

as one site assessment. 

• Cleanups Initiated – see http://www.epa.gov/oust/cat/PMDefinitions.pdf

• Cleanups Completed – see http://www.epa.gov/oust/cat/PMDefinitions.pdf

For some sites, states will likely use multiple funding sources. For example, a 

state may have used non-Recovery Act funds to initiate cleanup, and use Recovery Act 

funds to complete the cleanup. If any amount of money spent on a site assessment or 

cleanup is from Recovery Act funds, then the state shall report the site assessment or 

cleanup as an accomplishment under the Recovery Act measures. Note: Since site 

assessments initiated and cleanups initiated represent a point in time (rather than a 

body of work performed over time), no such multiple funding situations should apply for 

those reporting measures.

When Must States Report Their LUST Recovery Act Program Performance 

Measures Results?

Each state must report the eight program performance measures reflecting 

cumulative totals within 10 days after the end of each calendar quarter, starting with the 

quarter ending June 30, 2009 and reporting by July 10, 2009. 

Are There Other State Recovery Act Reporting Requirements?

Yes. Section 1512 of the Recovery Act requires recipients and subrecipients to 

report financial and job-related measures as outlined in OMB regulations at 2 CFR Part 

176.50. See Stimulus Grants Administrative Award Conditions for 40 CFR Part 31, 

available in EPA’s Integrated Grants Management System (IGMS) Administrative 

Database (see National, Administrative). Recipients must report on the use of LUST 

Recovery Act funds not later than 10 days after the end of each calendar quarter, as 

outlined in section 1512(c) of the Transparency and Accountability provisions of the 

Recovery Act and in accordance with OMB regulations at 2 CFR 176.50. 

Where Must States Report These Results?

For the LUST Recovery Act Program Performance Measures, states must report 

their results to EPA.

For section 1512 reporting requirements, all Recovery Act recipients must report 

their financial and job-related results as identified in OMB’s guidance.
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What Are The Data Quality Requirements For States?

Each of EPA’s program and regional offices affected by the Recovery Act will 

follow EPA’s Office of Environmental Information’s Management Action Plan (MAP I) to 

certify that records maintained and performance results reported to information systems 

for Recovery Act reporting are complete, accurate, and comply with the Agency’s 

Quality Policy and Information Quality Guidelines. 

As with non-Recovery Act assistance agreements, states must develop and 

implement quality assurance practices in accordance with EPA’s Uniform Administrative 

Requirements for Grants and Cooperative Agreements, 40 CFR Part 31.45. The 

regulation requires developing and implementing quality assurance practices that will 

“produce data of quality adequate to meet project objectives and to minimize loss of 

data to out-of-control conditions or malfunctions”; see 

www.epa.gov/oust/directiv/d965010a.htm#sec11 . 

What Are The Recordkeeping Requirements?

States must maintain accurate records in a readily accessible manner and/or 

location documenting their expenditures of 2009 American Recovery and Reinvestment 

Act funds in compliance with 40 CFR 31.42. When LUST Recovery funds are used for 

direct site work, states must maintain records on a site-specific basis. LUST Recovery 

Act funds must be tracked separately from other LUST funds. 

In addition, when states use LUST Recovery Act funds for direct or indirect 

assessment or cleanup work, they must maintain a record of locational information 

(latitude/longitude). States must provide this information to EPA upon request.
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Assistance Agreement Provisions

Is There EPA-Wide Assistance Agreement Guidance?

EPA’s Office of Grants and Debarment (OGD) has developed Recovery Act 

guidance8

In addition, section 2(c) of President Obama’s March 20, 2009 memorandum 

“Ensuring Responsible Spending of Recovery Act Funds”,

that is applicable to all EPA assistance agreements. This guidance includes 

requirements, such as: pre-award costs, Congressional and White House notifications, 

intergovernmental review, types of awards (work plans), open grant findings, and 

Governor’s certification. Where applicable, the Agency’s Recovery Act guidance will 

supersede the provisions in existing LUST Trust Fund guidance, policies, and practices 

not otherwise addressed in this guidance.

9 requires EPA to decide, 

prior to awarding LUST Recovery Act assistance agreements, that a state’s use of 

LUST Recovery Act funds is prudent and consistent with the Recovery Act by 

affirmatively determining that a state receiving funds has a demonstrated or potential 

ability to: (i) deliver programmatic results; (ii) achieve economic stimulus by optimizing 

economic activity and the number of jobs created or saved in relation to the federal 

dollars obligated; (iii) achieve long-term public benefits by improving the quality of life 

and furthering environmental protection and provide long-term economic benefits; and 

(iv) satisfy the Recovery Act's transparency and accountability objectives.

Finally, EPA encourages states to incorporate sustainable practices into their 

Recovery Act activities, particularly with respect to greener cleanup practices and 

environmental justice; see http://www.epa.gov/recovery/resources.html#f .

What LUST Recovery Act Specific Terms And Conditions Must Appear In The

Assistance Agreements With States?

Regions are required to include the following program terms and conditions in 

their LUST Recovery Act assistance agreements. 

To ensure 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.”

 8 See www.epa.gov/ogd/. 9 See www.whitehouse.gov/the_press_office/Memorandum-for-the-heads-of-Executive-Departments-and-Agencies3-20-09/.
Underground Storage Tank Program American Recovery and Reinvestment Act Assistance Agreement Guidance

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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. 

To ensure cost recovered LUST Recovery Act funds are properly utilized:

“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.” 

To ensure states acknowledge the statutory requirement to meet the applicable 

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. 

What Other Terms And Conditions Apply?

EPA’s Office of Grants and Debarment has provided terms and conditions for 40 

CFR Part 31 in the Agency’s IGMS Administrative Database (see National, 

Administrative) that, in most instances, apply to the LUST Recovery Act assistance 

agreements. Regions may include their standard terms and conditions that are used for 

the LUST cleanups assistance agreements. However, no new terms and conditions 

shall be included, beyond those addressed in this guidance. 

The following paragraphs provide program specific applications of these Agency 

terms and conditions. 
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Section 1512 Reporting

Based on OMB guidance, states must include a term and condition requiring the 

reporting of information under section 1512 of the Recovery Act. OMB’s interim final 

regulations for implementing the Recovery Act, (2 CFR 176.20(c)) provide that EPA 

“shall” take “appropriate” enforcement or termination action under 40 CFR 31.43 if 

recipients of Recovery Act funds fail to comply with reporting requirements or other 

terms and conditions. OMB's interim final regulations provide EPA with some discretion 

in deciding what enforcement action, including not taking any action, is appropriate. 

However, it is clear that OMB expects agencies to effectively address non-compliance 

by recipients of Recovery Act funds and that enforcement or termination actions are to 

be taken promptly if informal efforts to ensure compliance are not successful.

At the time of publication of this guidance, Section 1512 recipient reporting 

guidance has not yet been issued. When it is issued, EPA will provide supplemental 

guidance specific to LUST recipients as appropriate.

Davis Bacon Act

After consultation with the U.S. Department of Labor, EPA has determined that 

for LUST Recovery Act assistance agreements, the Davis Bacon Act (DBA) prevailing 

wage requirement applies when the LUST project includes: 

• Installing piping to connect households or businesses to public water systems or 

replacing public water system supply well(s) and associated piping due to 

groundwater contamination,

• Soil excavation/replacement when undertaken in conjunction with the installation 

of public water lines/wells described above, or

• Soil excavation/replacement, tank removal, and restoring the area by paving or 

pouring concrete when the soil excavation/replacement occurs in conjunction 

with both tank removal and paving or concrete replacement. 

In the above circumstances, all the laborers and mechanics employed by 

contractors and subcontractors will be covered by the DBA requirements for all 

construction work performed on the site. Other LUST funded activities, such as site 

assessments, in situ remediation, and soil excavation/replacement and tank removal 

when not in conjunction with paving or concrete replacement, will normally not trigger 

DBA requirements. However, if a state encounters a unique situation at a site (e.g., 

unusually extensive excavation) that presents uncertainties regarding DBA applicability, 

the state must discuss the situation with EPA’s project officer before authorizing work on 

that site. The project officer must refer determinations to the award official. 
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EPA's terms and conditions on DBA will require that states obtain, or require their 

contractors or subcontractors obtain, appropriate wage determinations from Department 

of Labor’s (DOL) wage determination web site at www.wdol.gov and include the labor

standards clauses contained in 29 CFR 5.5, as well as other provisions applicable to 

Recovery Act funds. To the extent that states contract for the activities described 

above, states must include a term and condition requiring compliance with the DBA in 

procurement contracts and sub-grants that include these activities. In addition, should 

these procurement contractors and sub-grantees accomplish these activities through 

the use of subcontracts or other lower tiered transactions, then these procurement 

contractors and sub-grantees must establish an equivalent term and condition in all 

such subcontracts and other lower tiered transactions.

Although states will ensure that contracts include appropriate wage 

determinations and labor standards clauses, will monitor weekly payroll reports, and will 

verify that laborers and mechanics are paid properly, EPA remains responsible for 

overseeing compliance with the DBA. The Office of Grants and Debarment will issue 

additional guidance on oversight of DBA compliance. In addition, if EPA receives a 

Freedom of Information Act (FOIA) or other inquiry relating to the payment of Davis 

Bacon wages, Regions must obtain documents as authorized by 40 CFR 31.42(e).

Infrastructure 

EPA has determined that the term infrastructure refers to the substructure or 

underlying foundation or network used for providing goods and services, especially the 

basic installations and facilities on which the continuance and growth of a community, 

state, etc., depend. Examples include roads, water systems, communications facilities, 

sewers, sidewalks, cable, wiring, schools, power plants, and transportation and 

communication systems. The Recovery Act provides funding for cleanup activities that 

do not generally meet the definition of infrastructure. However, a limited amount of 

funding under the program is occasionally used to install piping to connect households 

or businesses to public water systems or replace public water system supply well(s) and 

associated piping due to groundwater contamination. These connection/replacement 

activities fall into the category of an infrastructure investment. 

Buy American

EPA has determined that the Buy American provision contained in section 1605 

of the General Provisions of the Recovery Act only applies to the following projects: 

• Installing piping to connect households or businesses to public water systems or 

replacing public water system supply well(s) and associated piping due to 

groundwater contamination, or 

• Construction related activities associated with site restoration, including paving or 

concrete replacement.
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However, if a state encounters a unique situation at a site that presents uncertainties 

regarding Buy American applicability, the state must discuss the situation with EPA’s 

project officer before authorizing work on that site. The project officer must refer 

determinations to the award official.

Is A LUST Recovery Act Assistance Agreement Eligible For Performance 

Partnership Agreements?

No. This financial assistance program is not eligible for inclusion in Performance 

Partnership Assistance agreements under 40 CFR 35.133. 

Is There A Model Funding Recommendation?

Yes. Regions are to use EPA’s IGMS LUST Recovery Act Funding 

Recommendation (FR) model to ensure consistency for all LUST Recovery Act 

assistance agreements. The model FR is available in the IGMS Awards Working 

Database under Funding Recommendation (“2L-992STIM4-0: ARRA Leaking 

Underground Storage Tank Trust Fund”). Regions are to follow the Agency’s directions 

for copying the model FR. 

What Accounting Information Should Regions Use In IGMS?

Treasury Symbol: 68-9/0 8196

Regional Site Codes for LUST Recovery Act (same as for LUST Cleanup): 

0100G

0200G

0300G

0400G

0500G

0600G

0700G

0800G

0900G

1000G

Object Class: 41.88

PRC: 302D87E

Program Code: 2L - ARRA Leaking Underground Storage Tank Trust Fund 

 Program

Appropriation Code: F
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Fund Code: FS

Cost Category Codes: 7 -- General Support and Management 

 E -- Site Cleanup Actions

 4 -- Enforcement 

Budget Fiscal Years: 2009/2010 (two-year appropriation)

NPM Code: D 

What Are Other Assistance Agreement Details?

Catalog Of Federal Domestic Assistance (CFDA) Number

Regions are to use CFDA 66.805, Leaking Underground Storage Tank Program. 

Statutory Authority 

Solid Waste Disposal Act of 1976 (SWDA), as amended, section 9003(h); see 

http://www.epa.gov/swerust1/fedlaws/sttlitxt.htm, American Recovery and Reinvestment 

Act of 2009, (Public Law 111-005).

Delegation Of Authority

Delegation 8-38 authorizes Regional Administrators to take all necessary actions 

to approve, award, and administer assistance agreements with states using LUST 

Recovery Act funds under section 9003(h).